CIVIL APPLICATION NO 484 01 OF 2024 RAMADHANI MOHAMED KISESA VS ALOO SALIM ABDALLAH 3 OTHERS

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM CIVIL APPLICATION NO 484/01 OF 2024 RAMADHANI MOHAMED KISESA....................................... . APPLICANT

VERSUS ALOO SALIM ABDALLAH ............................................. . 1st RESPONDENT PRIDE TANZANIA LIMITED..............................................2nd RESPONDENT MAJEMBE AUCTION MART............................................. . 3rd RESPONDENT ASHA ABDALLAH MHINA.... ............................................. 4th RESPONDENT [Application for Stay of execution of the Decision of the Court of a Resident Magistrate at Kinondoni] fMinia PRM. Ext. Juris.1 ) dated the 6th day of May, 2024 in Land Appeal No. 51 of 2022

RULING 22nd & 25thJuly 2024 GALEBA, J.A.: This is an application for stay of execution of the decree which was passed against Ramadhan Mohamed Kisesa, the applicant in favour of Aloo Salim Abdailah, the first respondent According to the judgment of the court of a Resident Magistrate, Minja PRM Ext. Juris., dated 6th May, 2024 in Land Appeal No. 51 of 2022, Asha Abdailah Mhina, the fourth respondent borrowed TZS. 9,000,000.00 from Pride Tanzania Limited, the second respondent. To secure the borrowing, the applicant offered his i landed property erected on Plot 25 Block '7' Magomeni in Dar es Salaam (the disputed property), by creating a mortgage in favour of the second respondent. It appears, the fourth respondent defaulted to make good her covenanted borrowing obligations, such that Majembe Auction Mart, the third respondent upon instruction of the second respondent, sold the disputed property to the first respondent. At that point, the applicant successfully filed Miscellaneous Land Application No. 360 of 2011 to the District Land and Housing Tribunal for Kinondoni at Mwananyamala, where he was declared the lawful owner of the disputed property and declared the auction and therefore sale of the disputed property to the first respondent, illegal. That decision, dissatisfied the first respondent who filed Land Appeal No. 51 of 2022. In that appeal, the decision of the DLHT was

reversed such that the lawful owner of the disputed property was, this time, declared to be the first respondent. This latest decision aggrieved the applicant who lodged a notice of appeal to challenge it. When that notice was pending, the first respondent filed Execution No. 218 of 2024 seeking assistance of the court to evict the applicant from the disputed property. This application is seeking to stall that process. The notice of motion is supported by the affidavit of the applicant. Only the first respondent filed an affidavit in reply, but others did not. On the date that this application was scheduled for hearing that is on 15th July, 2024, Mr. Rajab Mrindoko learned advocate who appeared for the applicant prayed to proceed in the absence of the third respondent because, the said respondent was served but did not bother to come to court. Having satisfied myself that the third respondent was duly served but did not appear, I permitted the applicant to argue the application in her absence under rule 63 (2) of the Tanzania Court of Appeal Rules 2009 (the Rules). In arguing the application, Mr. Mrindoko submitted that this application needs to be granted because; first, the requirements under rule 11 of the Rules have been satisfied and; two, the affidavit of the applicant demonstrated that he will suffer substantial loss, if he will be evicted. On this second aspect he

relied on the case the Mapius Otieno v. Machimu Mayara Civil Application No. 279/8 of 2024 (unreported). Third, as for the security, learned counsel submitted that the applicant, prays that this Court accept the disputed property as the security or if that is not possible, then this Court be pleased to accept a Residential Licence No. KN/KWE/KMZ1/2 located at Kawe Mzimuni in the name of Shabani Mintanga. In reply, Mr. Deogratius Ogunde Ogunde, learned advocate for the respondent opposed the application, but later submitted that the applicant may be allowed to deposit a bank guarantee based on TZS. 1,000,000.00 3 as rent of the disputed property per month times the number of months in two and a half years. On his part, Mr. Daniel Nyakiha learned Senior State Attorney, submitted that the applicant be ordered to process a bank guarantee covering TZS. 40,000,000.00 which is the amount that is said to be the purchase price of the disputed property. On her part, the fourth respondent did not object to the application. Having carefully considered the submissions of all counsel and the fourth respondent, I am made to understand that none is seriously objecting to the grant of the prayer staying execution of the decree. What Mr. Ogunde and Mr. Nyakiha insisted on, was execution of a bank guarantee, while Mr. Mrindoko was of a view that a bank guarantee cannot be an appropriate security

because the decree in question, is not a monetary decree. Generally, for an application like this one to succeed, the applicant must ensure that the applicant complies with the provisions of rule 11 (3), (4), (5) and (7) of the Rules. That rule provides as follows: "(3) In any civil proceedings, where a notice o f appeal has been lodged in accordance with rule 83, an appeal, shall not operate as a stay o f execution o f the decree or order appealed from nor shall execution o fa decree be stayed by reason only o f an appeal having been preferred from the decree or order; but the Court, may upon good cause shown, order stay o f execution o f such decree or order. (4) An application for stay o f execution shall be made within fourteen days o f service o f the notice o f 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. (4A) NA (5) No order for stay o f execution shall be made under this rule unless the Court is satisfied that- (a) substantial loss may resuit to the party applying for stay o f execution unless the order is made; (b) security has been given by the applicant for the due performance o f such decree or order as may ultimately be binding upon him. (6) NA (7) An application for stay o f execution shall be accompanied by copies o f the following - (a) a notice o f appeal; (b)

a decree or order appealed from; (c) a judgment or ruling appealed from; and (d) a notice o f the intended execution." As indicated above, all the above provisions were met except the issue of which security to furnish. This point will be the defining point of this ruling. On that aspect, I do not agree that the applicant has mandate to pledge the property in dispute because the same was declared not to be his; it was declared by the court to be the first respondent's, which order the applicant is seeking to challenge by way of an intended appeal. In other words, I do not agree that a person, like the applicant in this application, can pledge as security any property that he does not legally own. I also do not agree with Mr. Mrindoko that, the property of a person called Shabani Mintanga, can be accepted as security for purposes of this matter because, being a third party, that person did not swear any affidavit stating that he is ready and willing to pledge his house to secure the decree in this matter. Further, Mr. Mrindoko made it clear that he does not know when the residential licence over that house he wanted to pledge as security, was expiring. If the licence expires any time before completion of the appellate proceedings in this matter, then the purpose of the security would be defeated. Without ruling out in absolute terms that a non-monetary decree cannot, on all

occasions, be secured by a bank guarantee, I agree that this is not a fit case to order procurement of a bank guarantee. The appropriate security to order will be a commitment bond. Thus, execution of the decree in Land Appeal No. 51 of 2022 between the parties in this application is hereby stayed pending determination of the intended appeal. The order is however subject, to the applicant executing a commitment bond sincerely and truly undertaking: 1. To maintain the disputed property in a good state of maintenance and repair, as it is at the date of this order.

2. Not to offer the disputed property for any kind of disposition. That is to say, the applicant shall not sell, assign, lease, enter into a partnership, mortgage, bequeath, or do anything or act to the property which may create any third-party interest in it.

3. Not to part with occupation of the disputed property. If the applicant shall at any time, wish to part with occupation ofthe property, he shall hand it over to the first respondent.

4. If the property shall fall vacant for over ninety days because of the absence of the applicant in the disputed property for any reason, the first respondent shall assume occupation of the disputed property and occupy it. 7 5. At all time, to pay any government or local government taxes in respect of the disputed property, in the name of the first respondent. The commitment bond conforming to the above conditions shall be executed and deposited with the Registrar. Other parties to this application shall be entitled to the copy of the bond. The bond shall be deposited with the Registrar within fourteen days from the date of delivery of this ruling to the parties. It is so ordered. DATED at DAR ES SALAAM, the 24th day of July 2024 Z. N. GALEBA

JUSTICE OF APPEAL Ruling delivered this 25th day of July, 2024 in the presence of Mr. Rajabu Mrindoko, learned Counsel for the applicant, Mr. Deogratius Ogunde Ogunde, learned counsel for the 1st Respondent, Rajabu Mrindoko Holding brief for Mr. Daniel Nyakiha learned Senior State Attorney for the 2nd Respondent and the 4th Respondent appeared in person, is hereby certified as a true copy of the original.