CIVIL APPLICATION NO 430 17 OF 2024 REINFRIDA SKEETER EMMANUEL VS MICLACHEM TANZANIA LIMITED

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 430/17 OF 2024 REINFRIDA SKEETER EMMANUEL (As legal Representative of EMMANUEL STANSLAUS MMBANDO............................................... APPLICANT VERSUS MILACHEM TANZANIA LIMITED........... .....................................RESPONDENT (Application for Stay of Execution from the Judgment and Decree of the High Court Land Division of Tanzania at Dar es Salaam) (Msafiri. J.^ dated the 27thday of October, 2023 in Land Appeal No. 315 of 2023 RULING 3rd July & 3rd September, 2024 FIKIRINI, 3.A.: This is an application for stay of execution made under rules 44(2) (b), 11 (4), (5), (6), (7) and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The genesis of the application by Reinfrida Skeeter Emmanuel (as legal representative o f Emmanuel Stanslaus Mmbando), the applicant is the judgment and decree of the High Court in Land Appeal No. 315 of 2023 which upheld the decision of the District Land and Housing Tribunal (DLHT) in Land Application No. 103 of 2021, from which a stay of execution is sought pending hearing of the i intended appeal. The application is supported by an affidavit sworn by the applicant. The respondent contested the application and lodged an affidavit in reply. The summary of the evidence before the DLHT is that the applicant is the administratrix of the estate of the late Emmanuel Stanislaus Mmbando. Amongst the property in the estate is Plot No. 573, Block 10, Sukari Street, Mwananyamala A, Kinondoni District, Dar es Salaam. While administrating the estate, she mortgaged the Plot stated above to secure a loan facility from EFC Tanzania Microfinance Bank Ltd. She defaulted on servicing the loan. Out of the ensuing snag and the threat of the property being dispossessed and sold to recover the loaned monies, the applicant agreed with the respondent to sell the said property at the purchase price of TZS. 100, 000, 000. 00 on condition the payment be in installments. A sale agreement was signed, and the applicant received the first installment totaling TZS. 30, 000, 000.00 and TZS. 13,500,000.00 later. Another installment of TZS. 46, 321, 946.00 was directly paid into the account, making the unpaid balance of TZS. 10,178, 054. 00. That is what has culminated in the respondent suing the applicant at the DLHT in Land Application No. 103 of 2021, that the applicant has been 2 avoiding receipt of the balance due at the same time, reluctant to endorse the transfer of ownership of the property in the name of the respondent. The DLHT decided in favour of the respondent after a full hearing. Aggrieved the applicant unsuccessfully appealed to the High Court. Before this Court, the applicant would be coming on her second appeal. In preparation for realizing her dream of appealing to the highest Court in the land, the applicant timely lodged the notice of appeal on 20th November, 2023. While waiting to be furnished with the necessary documents requested from the Registrar of the High Court, on 11th June, 2024 the applicant was served with a notice of execution. That prompted the applicant to lodge the present application on 25th June, 2024. Mr. Respicius Didace and Mr. Emmanuel Mbuga both learned Advocates appeared before me on 3rd July, 2024 and the matter was scheduled for the hearing inter parties on 18th July, 2024 to allow the respondent to file her affidavit in reply if was desirous of contesting the application, which was done as intimated earlier on in this ruling. On the hearing date, the same Counsel appeared representing their respective parties. Invited to amplify on the application, Mr. Didace, after adopting the notice of motion and the applicant's affidavit in support thereof, contended that the applicant had fulfilled all the requirements to grant an application for stay of execution. This included right after being served with a notice of execution, the applicant preferred the present application. Apart from timely filing of the application the applicant has also undertook to furnish security for the due performance of the decree and annexed copies of the notice of appeal as reflected in paragraph 5 and annexture marked "RBD 4" judgment and decree appealed against indicated in paragraph 3 and annexture marked "RBD 2", and notice of the intended execution referred in paragraph 7 and annexture "RBD 5" all in compliance to rule 11 (7) (a)-(d) of the Rules. In support of his submission he cited to me the cases of Ecobank Tanzania Lim ited v. Double A Co. Lim ited & 3 Others, (Civil Application No. 178/16 of 2021) [2022] TZCA 591 (29th September, 2022; TANZLii) and Bharya Engineering & Contracting Co. Ltd v. Labour Com m issioner & Legit Auction Mart, (Civil Application No. 398/18 of 2022) [2022] TZCA 421 (14th July, 2022; TANZLii). Expounding on the substantial loss to be suffered in case the application is not granted, Mr. Didace contended that the respondent intended to evict the applicant from the suit premises, the action which would cause irreparable and substantial loss to the applicant. The learned counsel cited to me the case of M apius Otieno v. Machim u Mayara, (Civil Application No. 279/8 of 2024) [2024] TZCA 515 (2nd July, 2024; TANZLii), in which, referring to the case of Tanzania Motor Service Ltd v. Tantrack Agencies Ltd, (Civil Application No. 86 of 2004) [2005] TZCA 22 (12th May, 2005; TANZLii), considered eviction of the applicant from the suit property amounts to substantial loss. The Counsel, also referred to the case of Jen n ifer Mkapesa Chuwa v. Farsy Adinani Msuya (As an adm inistrator o f the late Adinani Mangacha Msuya/Katera Mshanga Mangacha), (Civil Application No. 688/01 of 2022) [2023] TZCA 17863 (16th November, 2023; TANZLii) in which the Court discouraged dispossession of the suit property while there is a pending appeal. Regarding security, that has been pleaded in paragraph 13 that the applicant is ready to provide a reasonable security as might be ordered by the Court. This averment was, however, contested by the respondent in paragraph 10 of the affidavit in reply that the suit property should only be part of the security in addition to TZS. 50.000.000.00, the contention which the applicant does not agree with since the pledged security is immovable property. The Counsel urged me to do away with the bond guarantee as impressed by the respondent. Extending this argument, Mr. Didace submitted that since the respondent also feels indebted to the applicant and is ready to pay TZS. 10.000.000.00 against that readiness, the applicant be permitted, therefore, to give as security immovable property subject to the intended appeal, as was considered in the case of Sudi S eif Ngota {Adm inistrator o f the Estate o f S e if Mohamed Ngota) v. Aloyce John Kazimbaya, (Civil Application No. 262/17 of 2019) [2021] TZCA 26 (18th February, 2021; TANZLii). Finally, he prayed for the application to be granted. On the respondent's part, Mr. Mbuga adopted an affidavit in reply lodged by Chakani Mhina to form part of the submission contesting the application. From there, he went on to submit that the applicant has failed to comply with the requirement under rule 11 (5) (a) and (b) of the Rules, since the submission that the applicant would suffer substantial loss since the suit property is used as a furniture factory whereby about forty (40) people are employed, is not true. This is based on the fact, as averred in paragraph 7 of the affidavit in reply, that the respondent has an office adjacent to the disputed property and that nothing has been taking place and nobody is employed there. Moreover, there is no evidence in the affidavit that the applicant has any factory, workshop, or employees, therefore using the same. Fortifying his submission, he referred me to the case of Hai D istrict Council & A nother v. Kilem pu Kinoka Laizer & 15 Others, (Civil Application No. 110/05 of 2017) [2021] T7CA 39 (26th February, 2021; TANZLii), where the Court emphasized that one has to provide sufficient evidence that there would be a substantial and irreparable loss. Discounting the applicant's averment that the applicant would suffer a substantial loss, the respondent claims to be the one to suffer substantial loss since payment to the applicant has already been effected; they are not in the use of the property. The case of Nasor Ham is Nasor v. Regina Ishem w abura, (Civil Application No. 321/17 of 2024) [2024] TZCA 532 (9th July, 2024; TANZlii), was cited to support the submission. On the issue of security, Mr. Mbuga differed with Mr. Didace on the suit property to be offered as security, considering that the property is no longer that of the applicant after the DLHT and High Court decisions. In most of the decisions, the Court desisted from ordering the disputed property as security. The learned counsel once again referred me to Nasor Ham is N asor's case (supra). Mr. Mbuga also challenged the applicant's averment in paragraph 7 as hearsay since no affidavit from Kings Law Chambers has been procured. On this point, the Counsel referred me to the case of Jackline N tuyabaliw e Mengi v. Abdiel R. Mengi (Civil Application No. 332 of 2021) [2021] T2CA 583 (12th October, 2021; TANZLii). Based on his submission, the Counsel prayed that the application be dismissed with costs. Before he rested his case, Mr. Mbuga endeavored to discuss the case cited by Mr. Didace, that of Mapius Otieno (supra), and that the decision is distinguishable since in the referred case, the substantial loss was farm produce, which is different from the security in question in the present application. Rejoining, Mr. Didace, starting with Mapius Otieno's case (supra), rejoined that the relevance of the case was the principle regarding how substantial loss could be measured, especially if the person is in an occupation of the disputed property, such as the applicant. On the hearsay issue, he countered the respondent's Counsel argument as misplaced, arguing that paragraph 7 contains the fact that the application for execution referred to as "RBD 5" was served and received. On the issue of substantial loss, the learned Counsel reiterated his earlier submission, whereas, on security, he submitted that the applicant undertook to furnish security. He wound up by praying for a grant of the application. The issue for determination is whether the applicant has fulfilled the requirements guaranteeing the grant of the application for stay of execution. Pursuant to rule 11 (3), this Court has been vested with powers to order a stay of execution once the conditions prerequisite as stipulated in various provisions has been complied with. The first condition to be complied with is the lodging of a notice of appeal showing the intention of challenging the impugned decision as per rule 11 (3) of the Rules. Once the respondent has filed an 9 application for execution, within fourteen (14) days from the date of notice to show cause or be aware, the applicant has to apply for a stay of execution. Another requirement is that of annexing documents as illustrated under rule 11 (7) of the Rules, comprising of the following: (i) a copy of a notice of appeal; (ii) a decree or order appealed from; (iii) copy of the judgment or ruling appealed from; and (iv) a notice of the intended execution. Besides, the above, the applicant is required mandatorily in terms of rule 11 (5) (a) and (b) of the Rules to show that substantial loss may result if the Court grants no order granting a stay of execution. This is to be accompanied by the requirement of giving security for the due performance of the decree as might ultimately be binding upon the applicant. Now, I shall consider the above-stated conditions against the application. The first part of the conditions have been complied with appropriately and this includes compliance to rules 11 (3), (4) and 7 (a), (b), (c) and (d) of the Rules. It is without a doubt that the applicant, after being aggrieved by the High Court decision delivered on 27th October, 2023, a notice of appeal was lodged on 20th November, 2023 in 10 compliance to rule 83 (1) and within thirty days (30) as prescribed under rule 90 (1) of the Rules. After lodging the notice of appeal, the present application followed right upon being served with an Application for Execution notice received on 11th June, 2024 - annexture "RBD-5." Within fourteen days prescribed under rule 11 (4) of the Rules, the present application was filed. The application was accompanied by copies of all the listed documents to be annexed as illustrated under rule 11 (7) (a), (b), (c) and (d) of the Rules. The only snag so far is compliance with rules 11 (5) (a) and (b) of the Rules, which require demonstrating substantial loss to be faced if no order for a stay of execution is granted. The applicant under paragraphs 9 and 10 of the affidavit in support had portrayed substantial loss to be suffered. Under paragraph 9 this is what is stated "9.../ am apprehensive that if execution is to proceed, I w iii suffer irreparable loss because the property which is subject o f the appeal a t the Court o f Appeal, that is, Plot No. 573 Block 10, Sukari Street Mwananyamala "A" within Kinondoni M unicipality hosts a furniture store and a factory em ploying more than forty persons and if eviction is carried out it w ill make the business ii hosted in a t the said property collapse causing untold hardship to the business and the em ployees who w ill be rendered jobless." 10. Further to what is stated above, substantial loss is like ly to result if execution proceeds as I w ill be evicted from the su it property, rendering m y appeal to this Court nugatory." Apart from what has been averred, the applicant has not supported his statement such as filing a supplementary affidavit from one of those forty people who could have been directly affected if the order for a stay of execution had not been granted, without which makes the averment in the affidavit in support light This is worsened by the respondent's averment contradicting the statement. In paragraph 7 of the affidavit in reply the respondent averred thus:- "That the contents o f para 9 and 10 are strongly disputed as the deponent herein and the respondent in general, have an established office ju st adjacent to the p lot in dispute, and it was the reason fo r the purchase o f the said plot. To state the actual fact is that the p lo t in dispute is ju st a yard which has been dosed fo r a long 12 time, while near by plot, which is also the p lo t o f the applicant, is the one which was used previously as a yard to store some furniture thereto, otherwise no any business or employees are related or depending on the p lo t in dispute. It is the respondent herein whom had purchased the property since 2020 with intent to obtain econom ic benefits through the ownership o f the said su it p lo t so as to obtain revenue for its various employee but curtailed by the applicant fo r unknown reasons." Although the applicant's affidavit has not provided sufficient evidence of substantial loss and the respondent's affidavit in reply might be true, one fact remains uncontested: the applicant currently occupies the disputed property, which is why the respondent seeks vacant possession. Guided by the principle in Sudi Seif Ngota (supra), in which the Court discouraged declining granting a stay of execution to the applicant who is currently in occupation of the disputed property. In our recent decision in M apius Otieno (supra), the Single Justice considered being in current possession as of the date of the decree a factor in granting the stay of execution. The applicant undoubtedly has 13 been in occupation ever since, and there is a pending appeal. In that light, I find declining to grant the application illogical. What I have to grapple with now is the security for the due performance. While the applicant had pledged her readiness to furnish security for the due performance, as averred in paragraph 13, the respondent had, under paragraph 10, indicated what would be the preference as security: the plot in the same area and TZ5. 50,000,000, which is half the price of the consideration, to form part of the security to bind the applicant. Given that the respondent has twice previously secured decisions in her favour, consequently, the failure to gain vacant possession of the disputed property is likely to adversely affect both her income and enjoyment of the decree. Additionally, since the intended appeal could take several more months or even years to resolve, there is a risk that the respondent may end up with a judgment that is essentially unenforceable without proper security. In view of the foregoing, I thus order a stay of execution of the decree of the High Court of Tanzania at Dar es Salaam in Land Appeal No. 315 of 2023 with the conditions that, first, the applicant shall not 14 dispose of or alienate in any way the disputed property known as Plot No. 573, Block 10, Sukari Street, Mwananyamala "A" within Kinondoni Municipality and surrenders in Court a Certificate of Title for the disputed property within sixty (60) days from the ruling date. Second, the applicant is to deposit in Court a bank guarantee for the sum of TZS. 50,000,000/= within sixty (60) days, pending hearing and determination of the intended appeal. Costs in the application shall abide by the outcome of the appeal. It is so ordered. DATED at DAR ES SALAAM this 2nd of September, 2024. P. S. FIKIRINI JUSTICE OF APPEAL The Ruling delivered this 3rd day of September, 2024 in the presence of the Mr. Respicius Didace, learned counsel for the applicant and Mr. Hance Mrindoko, learned counsel for the respondent, is hereby certified as a true copy of the original.