CIV

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR CIVIL APPLICATION NO. 243/15 OF 2023 PETER SIPANO OLE MEELTA.......................... ............. .............. APPLICANT VERSUS MARIA RAFFAELLA DI PAOLO.............................................. RESPONDENT (Application for stay of execution of the judgment and decree of the High Court of Zanzibar, at Vuga) (Kazi, J.) dated the 10th day of November, 2022 in Matrimonial Petition No. 1 of 2016 RULING 30th April & 8th May,2024 MPEMU. J.A.: This application is for stay of execution of the judgment and decree of the High Court of Zanzibar at Vuga, in Matrimonial Petition No. 1 of 2016 which entered judgement and decree in favour of the respondent herein. It is by way of notice of motion premised under rule 11 of the Tanzania Court of Appeal Rules, 2009 (the Rules) and also the sub rules under it. In the said judgment which was delivered on 10th November, 2022, the High Court decreed the marriage between the couples to have been dissolved and also decreed the division of matrimonial properties to the tune of 50% each. It i was further decreed that, the said properties should be valued by the Government valuer. After that valuation, the appellant should, within thirty (30) working days, pay the respondent, in monetary value, 50% of the value else, such properties should be sold and the proceeds of sale thereof be divided equally to the couples. The applicant was not happy with that finding of the High Court, thus on 30th September, 2022 lodged the notice of appeal and also requested for copies of proceedings, judgment and decree for appeal purposes. While waiting for such documents in order to process the appeal, on 16th March, 2023 the applicant was served with the notice of execution, hence this application for stay of execution. At the hearing of this application on 30th May, 2024 the applicant had the services of Messrs. Salim Hassan Bakari Mnkonje, Abdulhariq Mohamed Aley and Saada Malota Soma, all learned advocates whereas Mr. Isaack Msengi, learned advocate appeared for the respondent. Submitting in support of the application, Mr. Mnkonje first adopted the affidavit deposed by the applicant herein and thereafter stated that, the application is within time because it was filed on 17th March, 2023 following the notice of execution served to the applicant on 6th March, 2023. He also submitted that, copies of the notice of appeal, the judgment, decree and the notice of execution has been annexed in the supporting affidavit in compliance with the legal requirement. Again, Mr. Mnkonje submitted that, the applicant has made an undertaking to furnish security by way of a bank guarantee to the tune of TZS 125,000,000.00 or as may be ordered. The applicant also undertook not to dispose of such properties by way of sale. He further argued that, in the event this application is not granted, the applicant stands to suffer substantial loss. In the latter, it was Mr. Mnkonje's submission that, there would be irreparable loss and hardships on the respondent's side as the said matrimonial properties might be disposed of through sale. Basing on this account, Mr. Mnkonje prayed that the application be granted as prayed for in the notice of motion. In resisting the granting of application for stay of execution, Mr. Msengi submitted that, rule 11 (5) (b) of the Rules has not been complied with because the applicant has not stated the amount of security to be deposited. In respect of the bank guarantee promised by the applicant, his argument was that, the value of the decree demands a bank guarantee of TZS 500,000,000.00 to be deposited within one month. This is what counsel submitted for and against the granting of the application for stay of execution. Having heard from the counsel and duly considered their affidavits, one question to resolve is whether conditions stipulated under section 11 of the Rules has been complied. This being an application for stay of execution, rule 11 (4), (5) and (7) of the Rules is clear that: "(4) An application for stay of execution shall be made within fourteen days of service of the notice of execution on the applicant by the executing officer or from the date he is otherwise made aware o f the existence o f an application for execution. (5) No order for stay of execution shall be made under this rule unless the Court is satisfied that: (a) substantial loss may result to the party applying for stay of execution unless the order is made; (b) security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. (7) An application for stay of execution shall be accompanied by copies of the following- a) a notice of appeal; b) a decree or order appealed from; c) a judgement or ruling appealed from; d) a notice of the intended execution. In the instant application, it is not disputed that the application was made within 14 days, thus the condition stated in sub rule (4) of rule 11 of the Rules has been complied with. Equally, the applicant's act to annex in the supporting affidavit, the notice of appeal, judgment, decree and the notice of execution is evidence of compliance of the condition stated in rule 11 (7) of the Rules. The only controversy between the parties is in respect of the interpretation of rule 11 (5) (b) regarding furnishing security which the respondent's counsel argued that, the applicant has not stated in the supporting affidavit the amount of security to be deposited as a bank guarantee. On this argument, the Court in Kibo Corridor Ltd. v. Ravji Investment Co. Ltd, Civil Application No. 473/05 of 2019 (unreported) stated that: "It is established law that, a firm undertaking by the applicant to provide security might be sufficientproof to move the Court to grant the order of stay of execution. See for instance, Mantrac Tanzania Ltd v. Raymond Costa, Civil Application No, 11 of 2010 (unreported)" 5 As it is, the applicant in this application, as deposed in paragraph 30 of the supporting affidavit, has made a firm undertaking to provide security as may be directed. This, in my considered view, is in compliance with rule 11(5) (b) of the Rules as interpreted in Kibo Corridor Ltd (supra). Moreover, rule 11 (5) (b) of the Rules does not specify the type or amount of security to be furnished. In that regard, the Court has discretion to determine the amount and nature of security to be provided mostly, as the circumstances of each particular case permits. See in B. R. Shindika t/a Stella Secondary School v. Kihonda Pitsa Makaroni Industries, Civil Application No. 26 of 2019 (unreported). In the instant application, as argued by both counsel, the value of the matrimonial properties decreed for division between the couples is uncertain because valuation by the Government valuer, as ordered by the trial court, has not been effected. That besides, the applicant's counsel estimated the 50% of the share in that matrimonial asset to beTZS 125,000,000.00 while the respondent's counsel went up to TZS 500,000,000.00. This contentious value, in my view, adds a value to the deposed fact in the affidavits that, the value of the said matrimonial assets is unknown for want of valuation by the Government valuer. In the light of the foregoing consideration, I find merit in this application which is accordingly granted. That said, execution of the judgment and decree of the High Court of Zanzibar at Vuga in Matrimonial Petition No. 1 of 2016 is thus stayed pending disposition of the applicants intended appeal. Much as the value of matrimonial assets is unknown, besides the undertaking made by the applicant in paragraph 30 of the supporting affidavit that he will not dispose of such matrimonial assets by way of sale, it is ordered that, the applicant should deposit to the Registrar of the High Court of Zanzibar a bank guarantee in the sum of TZS. 125,000,000.00 within thirty days from the date of the delivery of this ruling. Each part to bear own costs. It is ordered accordingly. DATED at ZANZIBAR this 8th day of May, 2024. G. J. MDEMU JUSTICE OF APPEAL The Ruling delivered this 8th day of May, 2024 in the presence of the Ms. Saada Malota Soma, counsel for the applicant and Mr. Emanuely Samwel, counsel for the respondent is hereby certified as a true copy of the original.