CIVIL APPLICATION NO 703 01 2022 SWAHIBA IBRAHIM SHAH VS THE REGISTERED TRUSTEES MASJID QUIBLATAIN

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 703/01/2022 SWAHIBA IBRAHIM SHAH.............................. .................... APPLICANT VERSUS THE REGISTERED TRUSTEES MASJID QUIBLATAIN............... ........................................... RESPONDENT (Application for stay of execution from the Decree of the High Court of Tanzania at Dar es Salaam) (Mkasimonawa. J.l dated the 5th day of April, 2018 in Civil Case No. 87 of 2010 RULING 2ndJuly & 6th August, 2024 RUMANYIKA, J.A.: Swahiba Ibrahim Shaha ("the applicant" herein) seeks an order of stay of execution of the decree of the High Court of Tanzania at Dar es Salaam (Mkasimongwa, J.)- It is pending the hearing and determination of an application for reference following a refusal by a Single Justice of the Court (Galeba, J.A) dated 23/03/2021 of an extension of time. The application has been brought under Rules 4(1), 4(2) (b), 11(3), 11(4), ll(5)(a) 11(b), 11(6) and (7)(a)(b)(c) and (d) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"). It is by notice of motion supported by an affidavit sworn by Swahiba Ibrahim Shaha. A brief factual background to the matter is as follows: The applicant, an administrator of the estate of the late Mtumwa Shah is also, an applicant in Civil Reference No. 5 of 2021 which is pending in the Court. That she was a defendant in Civil Case No. 87 of 2010, before the High Court of Tanzania at Dar es Salaam ("the trial court"). In that case, she was sued by the Registered Trustees Masjid Quiblatain ("the respondent" herein) who claimed 66.67% shares of House No. 20 situated on Plot No. 9 Block 39 along Sukuma Street, Kariakoo area in Dar es Salaam ("the suit house"). The respondent alleged to have acquired part of the suit house by way of wakffroxu the late Mtumwa Shaha. The applicant refuted the respondent's claim saying that, the alleged wakf never existed. Upon hearing the parties, the trial court ordered that seven rooms of the suit house belonged to the respondents, as claimed. Aggrieved by that decision, the applicant intimated to appeal to the Court orally, which notice turned out to be inconsequential, as it should have been filed written and also, was late in the day. She unsuccessfully filed Miscellaneous Civil Application No. 592 of 2018 for extension of time. She filed a formal notice of appeal which, however, she withdrew later. That she took further essential steps requesting to be supplied with copies of the ruling sought to be challenged and filed a 2 similar Civil Application No. 445/01 of 2019 which was struck out by a Single Justice of the Court. Consequently, he challenged the said decision vide Civil Reference No.5 of 2021 which is pending, as alluded to before. However, it is alleged that, the said pending Civil Reference apart, the respondents had initiated execution proceedings vide Miscellaneous Civil Application No. 350 of 2022. And that the applicant became aware of it through a newspaper issued on 1st November, 2022 which was followed by being served with a notice of the intended execution on 9th November, 2022. And that, she lodged the present application on 14th November, 2022, on four grounds, mainly, which may be paraphrased to read as follows: One, that, there is a pending Civil Reference No. 5 of 2021 on the refusal of extension of time by a Single Justice on 23rd March, 2021, which would be preempted, should the intended execution not be stayed, two, that the applicant stands to suffer irreparable loss should a stay order not be made, as the respondent would soon demolish the suit house rendering her homeless, three, that the applicant undertakes to give security for the due performance of the decree, as may ultimately bind upon the parties and four, that, the impugned proceedings are tainted with illegalities, as the applicant had no locus standi to be sued in her personal capacity. 3 The application was vehemently contested by an affidavit in reply sworn by one Salim Saleh Al Jabry who is one of the respondent trustees. At the hearing of the application, Messrs. Mohamedi Tibanyendera and Alexander Kyaruzi, learned counsel represented the applicant and respondent, respectively. Mr. Tibanyendera began by adopting the supporting affidavit. He contended that, the applicant had complied with all the necessary conditions including attaching the requisite documents to the application, in terms of rule 11(7) of the Rules, except a notice of appeal which is stipulated under sub rule (7) (a). According to him, it is so, because there is no appeal filed, let alone intention, for which a notice of appeal would have been filed and upon which a stay order to be sought. Rather, he asserted, what is pending in the Court is a civil reference, namely, No. 5 of 2021, following the said refusal of extension of time to lodge a notice of appeal, as highlighted above. Mr. Tibanyendera therefore, implored me to consider this application as an exceptional scenario, thus, dispense with the requirement to attach copy of the notice of appeal, as it did not exist, for the interest of justice. In reply, Mr. Kyaruzi adopted the respondent's affidavit. He contended that, the application is long overtaken by events, as the respondent had already taken possession of the seven rooms of the suit house claimed. Additionally, he asserted that, the application is incompetent and liable to be struck out for the reason of the applicant's failure to attach the equally crucial copy of a notice of appeal, in terms of rule 11 (7) (a) of the Rules. Being prompted by the Court on the way forward, where there is a matter other than an appeal pending in Court and, therefore, no notice of appeal filed, but the decree holder threatens to execute the impugned decree, Mr. Kyaruzi left it to the Court's wisdom to decide. Rejoining, Mr. Tibanyendera contended that, there are no provisions of the law which governs applications of this nature, where there is no appeal and therefore a notice of appeal filed. In the circumstances therefore, he implored me to find that this is a fit case, where, in terms of rule 4(1) (2)(a) and (b) of the Rules, the Court may waive the requirement of rule 11(7) (a) of the Rules, for the interest of justice. Upon hearing the learned counsel's rival submissions for and against the application, there is only one issue for determination, which is whether the applicant has met the threshold for the granting of an order of stay of execution. 5 I note that, for an order of stay of execution to be made, in terms of rule 11(4) (5) and (7) of the Rules, there are conditions that have to be fulfilled cumulatively. See- our decisions in Rajuu Hassan v. Almahiri Mohsen Ghaled and 2 Others, Civil Application No. 570/17 of 2017 (unreported). The conditions are; one, the application has to be filed within fourteen days from the date of service of a notice of the intended execution, two; the applicant must show that if the stay order sought is not made, he shall suffer substantial loss, three, the applicant has to give security for the due performance of the impugned decree in the event he losses the intended appeal and four, the application has to be accompanied by copies of a notice of appeal, decree or order, judgment or ruling appealed from and a notice of the intended execution. As regards the timing for filing the application, its limitation period is fourteen days which is stipulated under rule 11(4) of the Rules. For this application, the period accrued from 9th November, 2022 when the applicant was served with the notice. Therefore, the applicant filed the application within five days from the date of service thus, well within time, according to the applicant's averment at paragraph 13 of the supporting affidavit. 6 For the requirement of substantial loss, as is stipulated under rule 11(5) (a) of the Rules, at paragraphs 15 of the affidavit the applicant had averred that, the suit house would be demolished anytime, rendering her homeless and therefore, substantial loss on her part, should a stay order not be made and her appeal succeeds. About the requirement to attach a notice of appeal to the application, as required under rule 11 (7) of the Rules, this is the cornerstone of this application. I agree with Mr. Tibanyendera on a contention that, the prevailing circumstances could not practically allow attaching the notice, as there was neither an appeal nor any one intended by the applicant. It is so because, the present application is only pending for determination of a pending civii reference, which is not preceded by notice of appeal much as, during its pendency, there is no specific rule provided for seeking an order of stay of execution. As such, Mr. Tibanyendera might be right in pressing his reliance on 4(1), (2) (a) of the Rules, as the fall-back position, for the interest of justice. For clarity, Rule 4(1) of the Rules reads thus; Rule 4(1)- The practice and procedure o f the Court in connection with appeai, intended appeals and revisions from the High Court, and the practice and procedure o f the Court in relation to review and reference; and the practice and procedure o f the 7 High Court and tribunals in connection with appeal to the Court shall be as prescribed in these Rules or any other written law, but the Court may at any time, direct a departure from these Ruies in any case in which this is required in the interests of justice. (Emphasis added) On several occasions, the Court has tested and amplified the above cited provision. See- Mekefason Mandali & Others v. Registered Trustees of Archdiocese of Dar es Salaam (Civil Application 491 of 2019) [2021] TZCA 4 (5 February 2021: TanzLII) and Registered Trustees of St. Anita's Greenland Schools (T) & 6 Others v. Azania Bank Limited, Civil Application No. 660/16 of 2023 (unreported). With respect, therefore, Mr. Kyaruzi cannot be more incorrect to propose that, execution of a decree can be stayed only where it is preceded by a notice of appeal. It is so, because, with all intents and purposes, when rules 11 and 4 (l)(2)(a) of the Rules are read together, it cannot be said that, rule 11 of the Rules intend that every decision of the High Court would be challenged only by way of appeal warranting lodgement of a notice therefor. We are saying so because there are other avenues such as revision, review and, as is the case before me, 8 the pending Civil Reference l\lo.5 of 2021, which are never ever preceded by notices of appeal. Another crucial requirement is giving security for the due performance of the impugned decree. We note, at paragraph 17 of the supporting affidavit that, the applicant had undertaken to give security as may be ordered by the Court. On my part, I am satisfied that the applicant has met this condition also. I wish to remark that, in the wake of our decisions, for instance, in Hatibu Omari v. Belwisy Kuambaza, Civil Application No. 35/17 of 2018 (unreported), by analogy, that none of the said four conditions is inferior to the other in my considered view. Nonetheless, if ranked, the giving of security for the due performance of the decree would read number one condition. It is so, because of its double coincidence nature, as follows: one, it gives the judgment debtor, in this application, the applicant comfort while she is doing to exhaust the appellate vertical hierarchy and two, in a worse scenario event the judgment debtor loses appeal, the decree holder, in this case the respondent would be assured of enjoying the fruits of its decree, however long it may take them. Further, the applicant had averred that if the order of stay of execution is not granted, she would suffer irreparable loss being 9 permanently deprived of her right to use the suit house. Because the respondent had threatened to demolish it. All said, I entertain no doubts to hold, as I hereby do, that the applicant has met all the conditions stipulated under rule 11(4) (5) (a) and (b) and (7) of the Rules to warrant the granting of an order of stay of execution sought. We wish to stress that, the strength of cumulative effects of all the conditions being fulfilled cannot be overstated than what we have done in a number of our previous decisions. See- Hatibu Omari v. Belwisy Kuambaza (supra). Consequently, I find the application to be merited and grant it with costs. DATED at DAR ES SALAAM this 31st July, 2024. S. M. RUMANYIKA JUSTICE OF APPEAL The Ruling delivered this 6th day of August, 2024 in the presence of Mr. Mohamedi Tibanyendera, learned counsel for the Applicant also holding brief for Mr. Alexander Kyaruzi, learned counsel for the Respondent; is