CIVIL APPLICATION NO 490 01 OF 2024 SALIM MBAROUK VS MARIA MOMBA

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM CIVIL APPLICATION NO 490/01 OF 2024 SALIM M BAROUK................................................. ......................APPLICANT

VERSUS MARIA M OM BA......................... .............................................. RESPONDENT (Application for Stay of execution of the Decision of Makongo Juu Ward Tribunal Juu Pending Determination of an Appeal to Challenge the Decision of the High Court of Tanzania, Land Division at Dar Dar es Salaam) (Maevekwa J.^ dated the 17th day of June, 2022 in Land Appeal No. 216 of 2020

RULING 25lh f 30th July 2024 GALEBA. J.A.: The uncontested fact in this application, is that Salim Mbarouk the applicant, bought a parcel of land which had a house in it, from Maria Monba, the respondent. The location of the land, is Makongo Juu Area witnin the City of Dar es Salaam. It appears that, the land was not fenced at the time of the sale, such that subsequent thereto, the applicant erected a fencing wall around the land. However, according to the respondent, part of the applicant's fencing wail, blocked her from accessing the main road from her home. So, she filed Land Complaint No. 16/MKG/2017 before the Ward Tribunal for Makongo Juu (the WT). The case was heard, but the applicant appeared only once on 4th April, 2017 whsre his version of the case was recorded, but never appeared again, until when the WT decided to proceed with the defence case in his ab<ence. At the conclusion of the hearing, on 19th September, 2017, the W1 passed the following self-explanatory decree: "Baraza Hmeamua kwamba madaiya mdai MARIA B. MOMBA kuhusu kuzibiwa njia [kwa] ukuta uliojengwa na mdaiwa SALIM MBAROUK ni haiaii, hivyo sehemu yote ya ukuta uliojengwa na kuziba njia ubomoiewe na kuacha nafasi ya njia iiiyokuwepo tangu zamani yenye upana wa mita 2 na sentimita 35. Ukuta wa mdaiwa ujengwe kurudisha nyuma noani ya eneo fake. When the applicant learned of the existence of the order, he

filed two applications; one for stay of execution, and another for extension of time to file an appeal to the District Land and Housing Tribunal (the DLHT). The matters were Miscellaneous Land Applications No. 871 and 8711 both of 2017. The applications were first consolidated, and later he;ird, but the same were dismissed with costs on 30th November, 2018. Tht; applicant lodged Land Appeal No. 216 of 2020 to the High Court (the first appellate court) to challenge the dismissal of his applications, but like the DLHT, on 17th June, 2022, that court dismissed the appeal with costs, an order which aggrieved the applicant. Following that grievance, the applicant lodged a notice of intention to appeal to this Court, in order to challenge the decision of the High Court. However, when that notice was pending, the respondent filed Miscellaneous Application No. 242 of 2024 in the DLHT at Mwananyamala in Dar es Salaam, in order to execute the order of the WT of Makongo Jut, so that part of the applicant's fencing wall blocking her passage could be demolished, in order to give her free access to the main road. This application was filed in this Court on 11th July, 2024 in order to sta / execution proceedings commenced in the DLHT. The notice of motion initiating it, was attached with an affidavit of the applicant. The application wa.5 resisted by the respondent who lodged an affidavit in

reply. When the application was called on for hearing on 25th July, 2024, the applicant was represented by Mr. Bernard Elson Massimba, learned advocate, whsreas the respondent appeared in person. Arguing the application, Mr. Massimba adopted the affidavit of the applicant and submitted that he has two grounds upon which his client's application was based; first, that if part of the wall ordered will be demolished, the applicant's security will be at risk, as Makongo Juu is an area prone to petty burglaries and banditries. Second, the learned counsel argued that, the respondent is a poor person without employment or any known economic means such that, if his client will win the appeal, ! I the respondent will not be able to rebuild the wall or compensate the applicant. On her part, the respondent submitted that the applicant was told by the local leaders not to build the wall, but he arrogantly continued to build it without due regard to the stop order. She submitted that, she sold the land to him, but instead of building the wall in the borders of his land, the applicant exceeded and built a wall, blocking her from accessing the main road. In respect of the second point, the applicant stated that, it is tru 2 that she is of modest means, but that does not mean that in future she cannot get money to build part of the wall that will be demolished as was ordered by the WT. The

respondent contended further that even the intended appeal, will not live to see the light of the day because, she has file j an application to strike out the notice of appeal on account of some reasons, she did not clarify. All in all, her contention was that the applicant unlawfully closed her way to the main road for a long time, and it needs to be reopened for her access, as she has a decree giving her that right. I have considered the parties' contentions, and it is important to remark at this point that, for an application like this one to succeed, the applicant must ensure that the application complies with the provisions of rulti 11 (3), (4), (5) and (7) of the Rules. That rule provides that: "(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 f a 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 of execution of 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- 5 (a) substantia! loss may result to the party applying for sta\' of 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 foi/owing- (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." [Emphasis added] I will start with considering Mr. Massimba's first point that, if part of the fencing wall ordered to be demolished will indeed be demolished, there is a likelihood that thieves will easily storm into the applicant's compound and steal valuable items therefrom. With respect to Mr. Ma>simba, I do not agree with him on that point. The theft in the applicant's compound, should the order be executed, is too remote and imaginary to amount to good cause as envisaged under rule 11 (3) of the Rules. In any event, the magnitude of the loss of the properties which micjht be stolen by thugs following execution of the decree, was not well explained or detailed to the Court. Even, the loss that might ensue following demolition of the fencing wall in order to achieve the 2 meters and 35 centimetres as was ordered by the

WT, was not demonstrated on affidavit or by the applicant's counsel to be substantial. In the case of Me is Industries Company Limited v. Exim Bank (Tanzania) Ltd, Civd Application No. 70 of 2014 (unreported), this Court stated that: "Showing substantial ioss to be suffered is a key element under Rule 11 o f the Rules. Therefore, unless details and particulars o f loss are specified, there is no basis upon which the Court could satisfy itself that loss would be incurred. (See Mechmar Corporation (Malaysia) v. Benhard VIP Engineering and Marketing and Another, Civil Application No. 184 o f 2008 (unreported) and Tanzania Cotton Marketing Board Vs COGECOT Cotton Co. SA [1997] T.L.R64." So, I am not at one with Mr. Massimba that any substantial loss micjht result, should the order of the WT be executed. That means, this application fell short of the requirement of rule 11 (3) and (5) (a) of the Rules. The other point which was raised on affidavit as well as by the leaned counsel, was in respect of the respondent's impecuniosity. This point, is just as weak as the other one, and I will explain why. It is amply clear that the order of the WT which is sought to be stayed has never been appealed against. So, even if the intended appeal was to succeed, the WT order will remain valid and intact. That is so because, the intended appeal is seeking to challenge the order of the High Court

which upheld that of the DLHT, that the applicant did not demonstrate any sufficient reasons to merit extension of time to appeal to the DLHT. That is why, it is \ery difficult to agree with Mr. Massimba, that because the applicant is poor, she will not be able to rebuild the wall should the applicant win the intended appeal. Further, existence of this application offended rule 11 (7) (b) of the Rules, for the notice of motion and affidavit of the applicant were not attached with the decree in Land Appeal No. 216 of 2020, which was sought to be challenged. Lastly, the cumulative effect of the above deficiencies and failures on the part of the applicant, is that he did not demonstrate good cause for this Court to exercise its discretion and grant an order staying execution of the order of Makongo Juu Ward Tribunal. Thus, this application is hereby dismissed with costs for want of merit. DATED at DAR ES SALAAM, the 29th day of July 2024 Z. N. GALEBA

JUSTICE OF APPEAL Ruling delivered this 30th day of July, 2024 in the presence of Mr. John Chogoro holding brief for Mr. Bernard Massimba, learned Counsel for the applicant and the Respondent appeared in person, is hereby certified as a true copy of the original. 9