CIVIL APPLICATION NO 480 08 OF 2024 THE REGISTERED TRUSTEES OF BARAZA AKUU LA JUMUIYA YA WAISLAMU TANZANIA VS REGISTERED TRUSTEES OF THE NATIONAL MUSLIM COUNCIL O

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA CIVIL APPLICATION NO. 480/08 OF 2024 THE REGISTERED TRUSTEES OF BARAZA KUU LA JUMUIYA YA WAISLAMU TANZANIA.......................................APPLICANT VERSUS REGISTERED TRUSTEES OF THE NATIONAL MUSLIM COUNCIL OF TANZANIA (BAKWATA)......................... RESPONDENT (Application for stay of execution of the decision of the High Court of Tanzania at Musoma) fMahimbali, J.*) dated the 24th day of July, 2023 in Land Appeal No. 04 of 2023 RULING 12th & 24thJuly, 2024 NGWEMBE. 3.A.: The applicant seeks to move the Court to order stay of execution of a decree of the High Court in Land Appeal No. 4 of 2023, pending the hearing of an appeal which is yet to be filed before the Court. It has been preferred under rule 11(1)(2)(3)(4)(5)(6) and (7)(a)(b)(c)(d) of the Tanzania Court of Appeal Rules (the Rules). An affidavit in support was affirmed by Atwarid Hassan Matambo identified as the Principal Officer of the Registered Trustees of Baraza Kuu la Jumuiya ya Waislamu Tanzania (the applicant). Along with this application, Mr. Emmanuel Gervas, learned advocate, filed a certificate of urgency claiming that the application was of utmost urgency for the reasons that the respondent was evicting the applicant through forced entry. Contended that the respondent with the aid of police officers was arresting the applicant's members and arraigning them in criminal court. Further, alleged that, the respondent without an execution order has started demolishing the mosque where the applicant lives and worship. The chronology of events in this application traces back to the land dispute before the District Land and Housing Tribunal (DLHT) for Musoma over ownership of Plot No. 139 (MD) Block "A" Baruti Area in Land Application No. 151 of 2019. In that land sits a Mosque called Masjid Fuyrquan. Undisputed by both parties, the original owner of the plot of land was the East Africa Muslim Welfare Society (the society) which was said to have been dissolved in 1968. In its lifetime, the society was the overseer of Moslems Affairs in East Africa, owning some properties including the suit land. After its dissolution, the respondent claims to be the successor of every property of that society. The respondent therefore, sued the applicant before the DLHT over those properties. Having heard the dispute, the DLHT delivered its decision on 8th December, 2012. It declared the respondent as the rightful owner of the suit land. The applicant was dissatisfied, thus unsuccessfully, appealed to the High Court in Land Appeal No. 04 of 2023, which judgment was delivered on 24th July, 2023. The applicant 2 remained aggrieved, hence on 14th August, 2023, successfully, lodged notice of appeal to the Court. Thereafter the applicant wrote a letter to the Registrar of the High Court requesting for copies of certified documents of the High Court. Also, the applicant filed an application for leave in Misc. Land Application No. 66 of 2023, being the legal requirement by then, but such leave was overridden by amendment of the law, which removed the leave requirement. Therefore, on 22nd February, 2024 the applicant withdrew it. The deponent avers that, soon after withdrawal of the application for leave, some members of the respondent went to the mosque and wrote on the wall a message whose meaning was that from the date of withdrawal of the application, the respondent was the owner of the suit land. That they disturbed the applicant's members and started to evict them without any proper order for execution. The applicant further averred in the affidavit that, on 23rd March, 2024 she wrote a letter to and met the District Commissioner believing that the latter would secure the peace by restraining the respondent from her conduct. To her surprise, the District Commissioner insisted that the respondent's members were right in what they were doing, since they won the case against the applicant and ordered the applicant to render vacant possession or produce an order for stay of execution. 3 Following the District Commissioner's response, on 12th April, 2024, BAKWATA District secretary went to the mosque and made 'violence' by inter alia, reporting the members of the applicants including the Atwarid Hassan Matambo to the Police. The deponent and other applicant's members were arraigned before Musoma District Court for the offence of disturbing religious assembly contrary to section 126 of the Penal Code. In the notice of motion, the applicant seeks for an order for stay of execution of the High Court decree, which is about to be executed by the respondent on the grounds that; she has filed a notice of appeal and that she is placed to suffer damages if stay of execution will not be granted. In turn the respondent opposed the application by filing an affidavit in reply affirmed by Mikidadi Shada. The deponent never stated his affiliation to BAKWATA (respondent), but in his three paragraphs' affidavit, strongly disputed all averments of the applicant's affidavit. On the hearing of this application, Mr. Emmanuel Gervas, learned advocate represented the applicant, while Mr. Thomas Manyama Makongo, also learned advocate appeared for the respondent. Mr. Gervas adopted the notice of motion supported by the affidavit together with his written submission therefrom to form part of his oral 4 submissions. Briefly, he amplified that, the main prayer of the applicant is for an order to restrain the respondent who are forcing to evict the applicant from the suit Mosque. He referred also to the written submission reiterating that the applicant filed the notice of appeal on time and requested for the records before the High Court, the copies of the record are yet to be supplied to them. He buttressed with Article 107A of the Constitution of the United Republic of Tanzania and rule 4 of the Rules, while urging the Court to grant the prayer. On his side Mr. Makongo commenced with an observation that the application is irregular for being preferred under rule 11(1) of Rules, which does not apply to civil matters, but is applicable to criminal applications. He proceeded to submit that, the notice of appeal was lodged on 14th August, 2023, but since then the applicant had done nothing. He admitted that the respondent did not file any application for execution and did not admit that the respondent is violently disturbing or evicting the applicant, but that what the respondent did was maintenance of status quo. In rejoinder, Mr. Gervas argued that the wrong citation of rule 11 (1) cannot affect the application. He further rejoined that, although the respondent never filed application for execution, the application is exceptional, the Court has powers to grant it under Article 107 of the 5 Constitution. Having meticulously reviewed the record of application, and the opposing arguments of learned counsels, I find the main issue to be resolved in this application is whether the applicant has satisfied the legal conditions for being granted stay of execution. Before going any further, I wish to settle the question of wrong citation of enabling provision. It is evident that the applicant wrongly cited subrule (1) of Rule 11 which subrule is concerned with criminal matters. It is also evident that, apart from the wrong citation of subrule (1) of Rule 11 of the Rules, the applicant cited other provisions which were correct. These are sub-rules (2)(3)(4)(5)(6) and (7) (a)(b)(c)(d) of Rule 11 which are applicable to the application of this nature. It is, I think settled position of law held by the Court in many cases without citing any, that wrong citation of an enabling provision or non-citation is not fatal if the court is clothed with powers to grant the relief sought. This is what Rule 48 of the Rules provides: "48 (1) Subject to the provisions o f sub-ru/e (3) and to any other rule allowing informal application\ every application to the Court shall be by notice o f motion supported by affidavit and shall cite the specific rule under which it is brought and state the ground for the relief sought " Provided that where an application omits to cite any specific provision of the law or cites a wrong provision, but the jurisdiction to grant the order sought exists, the irregularity or omission can be ignored and the Court may order that the correct law be inserted." (emphasis supplied). See also the case of Muzzammil Mussa Kalokola v. The Minister of Justice & Constitutional Affairs & Others (Civil Application 255 of 2019) [2022] TZCA 486 TANZLII (2 August 2022). Given the circumstances of this matter and considering the nature of the discrepancy, I confirm what Mr. Makongo submitted that such wrong citation of subrule (1) of the Rule 11 is not fatal and did not affect the application. Back to the decisive issues of whether the applicant has fulfilled the conditional precedent in application for stay of execution. The law requires that for an application like this one to succeed, the applicant must fulfill all the requirements set out in subrule (4) of Rule 11 which provide time limitation of fourteen days of service of the notice of execution on the applicant by the executing officer or from the date he became aware of the existence of an application for execution. According to the Rules of the Court, every application of this nature must be made within fourteen days. This means also that, there must be a format application for execution and the date on which the applicant was served or notified about the existence of that application must be certain for the purpose of ascertaining the fourteen days compliance. Moreover, the applicant is expected to attach the documents related to the application for execution. Rule 11 (7) of the Rules is worth reproducing it hereunder that: 11 (7) "An application for stay o f execution shall be accompanied by copies of the foliowing- (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. ” Apart from the contents of the above quoted subrule, equally subrule (5) of rule 11 provide additional conditions to be complied with as follows: 11 (5) "No order for stay of execution shall be made under this ruie unless the Court is satisfied that- (a) substantiaI loss may result to the party applying for stay o f execution unless the order is made; 8 (b) security has been given by the applicant for the due performance o f such decree or order as may uitimateiy be binding upon him." In this matter, there is no execution in progress or any application for execution formally made and pending before any court of law. I have seen in the applicant's affidavit that what the respondent's agents are alleged to do is writing on the wall of the mosque that they are the owners, attempts to evict the applicant's members and reporting to police about some conduct of the applicant's members. I understand that this Court cannot stay criminal proceedings before the District Court. Even the acts complained of which do not comprise an execution capable of being stayed. Those acts complained of do not fall within the domain of this Court to deal with. Apart from that, the decree whose execution is sought to be stayed is not attached in this application for the Court's review. The applicant's counsel in his written submissions argued that this Court can hear and grant the application despite non fulfillment of the requirements under Rule 11 (7) of the Rules. No wonder the applicant did not care to annex the decree of the High Court subject to execution. He did not cite any authority or a decision of the Court suggesting that Rule 11 (7) is not mandatory in the circumstances of this application. With the utmost respect to the learned counsel for the applicant, Court rules are made to be respected and complied with for the ends of justice, otherwise may result into chaos. Much as I appreciate to the learned counsel's reliance to article 107A (2) (e) of the Constitution of the United Republic of Tanzania, which provides general principle guiding the Court, that it is required to dispense justice without being tied up with technicalities. However, the general rule is inapplicable where there is a specific rule and procedure to be followed. Therefore, the Court has already pronounced its position in the case of Mbarala A. Maharagande & Others v. Mahiku A. Maharagande (Civil Application No. 469 of 2021) [2021] TZCA 584 TANZLII (12 October 2021), that non-compliance of Rule 11 (7) of the Rules was held to be fatal. More importantly, is the fact that, if the respondent has not filed any application for execution which is subject to the application for stay of execution, this application may be termed as premature. See Razak Mahmoud Hussein v. Sultan Ali Abdulla Gulamhussein (Civil Application No. 424 of 2018) [2019] TZCA 544 TANZLII (9 September 2019) where the Court observed as follows: "An application o f this nature can only be lodged before the Court after the applicant is sure that 10 the process o f executing the decree has been initiated by the decree holder, and this is after the applicant is issued with the notice o f the intended execution and not upon a hearsay information." What transpired in the cited case, seems to be similar to this application, where the applicant not only ignored her duty to annex the decree he seeks to be stayed, but also, she filed this application when there is no application for execution as she was never served with any notice of intended execution. It is further noted that, in the whole affidavit in support to the notice of motion, the applicant has not complied with Rule 11 (5) (b) of the Rules by providing the requisite security. Paragraph 16 of the deponent's affidavit is couched in the following words: "That the applicant has taken necessary measure to make sure that the said iand wiii be under their security as it wiii not be destructed or change use, the said land will be secured under the security o f the Applicant agents and beneficiaries all the time when this order stays for execution granted by this Court pending determination o f an appeal." The above does not give security for the purpose of stay of ii execution. Taking all the ailments together, it suffices to rule that this application is incompetent for many reasons, including being premature and the applicant's failure to fulfill mandatory prerequisites. Those weaknesses identified cannot be saved by Article 107A of the Constitution. Having so reasoned, the application is misconceived, incomplete and premature for lack of a decree to be stayed. Consequently, I strike out with no order as to costs because the dispute originate from religion. DATED at DAR ES SALAAM this 24th day of July, 2024. P. J. NGWEMBE JUSTICE OF APPEAL The Ruling delivered this 24th day of July, 2024 in the presence of Mr. Emmanuel Gervas, Counsel for Applicant via video conference from High Court at Musoma and absence of the Respondent, is hereby certified as a true copy of the original.