tanzania telecommunication co ltd vs nicodemus guaraid semu 2019 tzca 603 10 april 2019

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM (CQRAM: MUSSA. J.A.. MUGASHA, J.A. And LILA, J,A.) CIVIL APPLICATION NO. 281/17 OF 2016 TANZANIA TELECOMMUNICATION CO. LTD.....................................................APPLICANT

VERSUS NICODEMUS GUARAID SEMU ................................................................... RESPONDENT (Application for Stay of Execution from the decision of the Court of Tanzania at Dar es Salaam) (KALOMBOLA.J.) dated the 13th day of August, 2014 in Land Case No. 101 of 2009

RULING OF THE COURT 26th March, & 10 April,2019 LILA, J.A.: Tanzania Telecommunication Company Limited (TTCL), the applicant, was the unsuccessful party in the suit for trespass instituted by the respondent before the High Court (Land Division). It was alleged that the applicant had entered in the respondent's piece of land situate at Manja Ugweno district in Kilimanjaro Region by constructing telecommunication tower without permission and without payment of compensation. The i applicant was thereby declared a trespasser and was ordered to pay the respondent Tzs 100,000,000/= as compensation. Aggrieved and intending to challenge the whole of that decision before the Court, the applicant lodged a notice of appeal. And, prompted by the grant of the respondent's application for execution and issuance of attachment and sale order by the High Court, the applicant rushed to the Court armed with an application for stay of execution of the decree of the High Court pending the determination of the intended appeal. The application is brought by way of a Notice of Motion predicated under Rule ll(2)(b)(c) (d) (e) and rule 48(1)(2) of the Tanzania Court of Appeal Rules, 2009 (The Rules) and is supported by an affidavit sworn by Mr. Lugano Rwetaka, the Company Secretary of the applicant. Before us when the application was called on for hearing, Ms. Angela Lushagara, learned Principal State

Attorney, entered appearance on behalf of the applicant whereas Mr. Desdery Ndibalema, learned counsel, appeared for the respondent. At the outset, Mr. Ndibalema who had earlier on filed both an affidavit in reply and written submission in opposition of the application, 'fo rm ed the court that, in view of the reasons indicated in the notice of ro to n , the supporting affidavit and the written submission in support of the application, he was no longer resisting the application. He accordingly urged the Court to grant the application. On the issue of costs, he urged the Court to order that each party to bear its own costs. On her part, Ms. Lushagara, relying on the averments in the affidavit, written submission in support of the application and the respondent's non­ objection, urged the Court to grant the application. She expressed the applicant's readiness to deposit in Court a bank guarantee of an amount equal to the decreed amount as security for the due performance of the siecree <vn the event of not succeeding in the appeal. As for costs, she concurred with Mr. Ndibalema that each party should bear its own costs. The sole issue for resolve by the Court is whether this is a fit case for the Court to grant an order for stay of execution.. We are mindful of the fact that the present application was lodged before the amendment of the Court of Appeal Rules, 2009 by the

Tanzania Court of Appeal (Amendment) Rules, 2017, G.N. No. 362 of 2017 which 3 came into force in September, 2017. Even before the said amendment there has been requirements of the law to be satisfied for the Court to exercise its discretion to grant or otherwise an application for stay of execution which were set down in Rule 11 (2) (b) (c) and (d) (i-iii) of the Rules. In the circumstances, the Court no longer has the luxury of granting an order of stay of execution on such terms as the Court may think just, but it must satisfy itself that the cumulative conditions enumerated in Rule 11 (2) (b) (c) and (d) (i)(ii)(iii) are met before granting the order for stay of execution. The Court has restated these conditions in Mantrac Tanzania Limited v. Raymond Costa, Civil Application No. 11 of 2010, Laurent Kavishe v. Enely Hezron, Civil Application No. 5 of 2012 and Joseph Anthony Soares @ Goha v. Hussein s/o Omary, civil application No.6 of 2012 (All unreported). For instance, in Mantrac case, the Court, after quoting in full Rule 11(2) of the Rules, outlined the prerequisite conditions to be satisfied for the Court to exercise its discretion to either grant or refuse to grant an order of stay of execution thus:- (i) After lodging a notice of appeal under Rule 83, (ii) Showing good cause, and (lii) Complying with the conditions set cut under item (d) of sub-Rule 2. We have perused

the notice of motion, the supporting affidavit and the written submission in support of the application, and we are satisfied that > the applicant duly lodged a notice of appeal on 22/8/2014 as stated in paragraph 4 of the affidavit. The affidavit, under paragraphs 10, 11 and 12, clearly shows that the applicant is intending to fault the High Court decision on the reason that the trial judge did not show how she arrived at the finding that the respondent deserved to be paid Tzs. 100,000,000/= as compensation, she wrongly and against the law declared the applicant who is a government organization a trespasser and that duress was used to acquire the disputed land, respectively. These issues raised constitute good cause for making the present application. In respect of furnishing security for the due performance of the decree, the applicant has undertaken to deposit a bank guarantee of the sum equal to the decreed amount. 5 Under the circumstances, the applicant has fulfilled.. all the requirements for the grant of an order for stay of execution. We accordingly grant the application and it is hereby ordered that execution of the judgment and decree of the High Court in Land Case No. 101 of 2009 is hereby stayed pending the determination of the intended appeal. The applicant is to deposit with the Court a bank guarantee of the sum of Tzs. 100,000,000/= within thirty (30) days of the delivery of the ruling. Each party to bear its own costs. DATED at DAR ES SALAAM this 3rd day of April, 2019. K. M. MUSSA

JUSTICE OF APPEAL S. E. A. MUGASHA

JUSTICE OF APPEAL S. A. LILA

JUSTICE OF APPEAL I certify that this is a true copy of the original

DEPUTY REGISTRAR

COURT OF APPEAL 6