CIVIL APPLICATION NO 416 01 OF 2024 YASMINE HAJI VS ANTONY AMIN HAJI

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 416/01 OF 2024 YASMINE H A JI......................... .............. .............................APPLICANT VERSUS ANTONY AMIN H A JI......... ............................ .........................RESPONDENT (Application for stay of execution of the judgment and decree of the High Court of Tanzania Temeke High Court Sub-Registry (One Stop Judicial Centre) at Temeke) (Mnvukwa. J.) dated 15th day of April, 2024 in Probate and Administration Cause No. 33 of 2021 RULING 31st July & 26th August, 2024 ISMAIL 3.A.: The applicant's quest in this application is for an order of stay of execution of the decree of the High Court, issued in respect of Probate and Administration Cause No. 33 of 2021. In the said proceedings, the respondent's petition for probate of the estate of the late Abdul Haji Ladha (deceased) was granted, thereby appointing the respondent as the executor of the will that the deceased left behind. The applicant, the respondent's i sibling and beneficiary of the estate, is aggrieved by the decision and, as a result, she has instituted an appeal in this Court and the same is pending. In the pendency of the appeal, the applicant has moved the Court to put to a halt to an execution of the decree issued by the trial court. This is through the instant application. The application, preferred by way of notice of motion, has raised several grounds upon which it is premised. These include the fact that the applicant will suffer substantial loss which cannot be adequately compensated by way of damages if the decree is executed and the applicant succeeds in her appeal. The affidavit of Simon Barlow Lyimo supports the application and, besides stating the grounds on which the application is based, it provides an undertaking for furnishing security for the due performance of the decree should the appeal fall through. The respondent is valiantly opposed to the application for stay. His contention is based on two grounds. One, that an order for stay of execution will protract the administration of the estate of the deceased which has remained unadministered since September, 2018. Two, that the nature of the decree is not capable of admission to an order of stay, making the requirement of furnishing security for the due performance of the decree difficult as it is not quantified in monetary terms. Hearing of the application pitted Mr. Simon Lyimo, learned advocate who represented the applicant, against Mr. Norbert Mlwale, learned counsel whose services were enlisted by the respondent. In his submission in support of the application, Mr. Lyimo submitted that grounds for the prayer sought are contained in the supporting affidavit, one of which is that the decree sought to be executed has been challenged through a notice of appeal a copy of which is attached to the application. It was Mr. Lyimo's further submission that the applicant stands to suffer an irreparable loss since she is the beneficiary of estate of the deceased, arguing further that the filing of the inventory by the respondent is an assurance that the decree is in the process of being executed. Mr. Lyimo further contended that the applicant is willing to furnish security for the due performance of the decree in the sum stated in the inventory. The sum in the inventory will serve as the basis for setting the sum in the security. He urged the Court to spare him from paying costs of the matter since the application emanates from the probate matter that involves siblings. Submitting in rebuttal, Mr. Mlwale argued that the singular issue for determination in this matter is whether the application meets the threshold set by the provisions of rule 11 (5) (a) and (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules). These provisions require demonstration of substantial loss to be suffered and the furnishing of security for the due performance of the decree. The learned counsel argued that the allegation of mismanagement and exclusion of the application in the affairs of the estate was misplaced. Mr. Mlwalwe further argued that the nature of the decree does not place the parties in the position of the judgment debtor and decree holder. He argued that there is no order in monetary terms which should be fulfilled by applicant to the respondent. In his contention, no loss will be suffered by the applicant. On this, my attention was drawn to our decision in Nassor Hamis Nassor v. Region Ishemwabura, Civil Appeal No. 321/17 of 2024 (unreported). Mr. Mlwale argued that the conditions in rule 11 (2) (a) and (b) of the Rules must be cumulatively met. On the furnishing of the security, he submitted that such security would be incapable of determination as the decree is not a monetary award on which the value of the security would be pegged. The learned counsel scoffed at his counterpart's argument that the amount in the inventory should be used to determine the sum to be furnished as security. In his contention, the course of action that arises from the application's incompetence is to strike it out. He buttressed his contention by citing the cases of The Registered Trustees of Vignan Educational Foundation Bangalore, India & Another v. National Development Corporation, Civil Application No. 469/17 of 2019 [2021] TZCA 573 (30 September 2021, TANZLII); GM Cross Africa Limited v. First National Bank Tanzania Limited & 2 Others, Civil Application No. 284/17 of 2019 [2022] TZCA 532 (31 August 2022, TANZLII); Keith Horan & 3 Others v. Zameer Sherali Rashid, Civil Application No. 230/15 of 2019 [2019] TZCA 438 (6 December 2019, TANZLII); and Malietha Gabo v. Adam Mtengu, Civil Appeal No. 485 of 2022 [2023] TZCA 17318 (8 June 2023, TANZLII). In rejoinder, Mr. Lyimo sought to distinguish the import of the decisions cited by his counterpart. He maintained that this is an executable decree which has conferred rights on the respondent to act. He maintained that the amount in the inventory is what should constitute the guide for the sum to be furnished as security. Mr. Lyimo contended that the holding in Keith Horan & 3 Others (supra) justified the applicant's prayer for stay of execution. Having examined the application, its supporting affidavit, affidavit in reply and the counsel's contending submissions, I take the conviction that 5 success or failure of this application is predicated, not on the merits of the application, but on the disposal of a legal issue raised by Mr. Mlwale. This is as to whether the decree that the applicant prays to stay is executable and capable of being stayed. This issue is framed in recognition of the fact that not every decree or order is capable of being executed, though such decrees or orders may be challenged by way of appeal. In the instant application, the decree against which the stay of execution is craved had three segments. It dismissed the caveat that the applicant filed; appointed the petitioner, the respondent herein, to be the executor of the deceased's estate; and it issued letters of probate to the respondent. On appointment, the respondent embarked on the fulfilment of his statutory obligation of administering the probate by filing an inventory (Annexure YH4) which was filed in the High Court on 14th June, 2024. This is an order which is a mere declaration and whose effectiveness would not require an intervention of the court by way of execution. This explains why no notice of intended execution has been filed and a copy thereof attached to the instant application. It is because there is none. Such absence is not only a testimony that there is no imminent danger of any execution, but also an assurance that the requirement set out in section 11 (7) (d) of the Rules 6 has not been fulfilled. It is significantly notable, as well, that, because of the absence of any notice of intended execution, compliance with the imperative requirement of sub-section (4) which requires that an application for stay of execution be filed within 14 days of the notice of execution has become a challenge to the applicant. Mr. Lyimo was at pains to state when exactly 14 days began to run. It is why, whereas the decree was passed on 15th May, 2024, the instant application was filed on 19th June, 2024. If the date of the decree was to be taken as the cut off date, the application would, in any case, be considered as time barred. Stranger than fiction is the contention by Mr. Lyimo that the aggregate sum in the inventory should be the basis determining the security. This is unheard of and I decline to go along with. Mr. Lyimo has premised the applicant's decision to institute this application on the inventory that has been filed by the respondent. In my considered view, filing of the inventory cannot serve as the signaling of the respondent's intention to execute the decree. Rather, this is the fulfilment of the respondent's duties as the executor. It is also a testimony that what the applicant intends to put to a halt through the instant application has been executed and it is unstoppable. It can only be annulled on appeal if the Court is convinced that the appointment flouted the law. It is my persuasion that the decree from which this application arises is neither a decree that grants a right to any party nor are the parties thereto in the position of the decree holder and judgment debtor as they appear in normal executable decrees. It is simply a decree that granted no executable right to the respondent, besides allowing the respondent to fulfill the obligation that the testator of a will bestowed on him as the executor. I find this situation akin to the decree which was granted in the case of Athanas Albert 8c 4 Others v. Tumaini University College, Iringa [2001] T.L.R. 63 whose stay was declined. Dismissing the application, the learned single Justice of the Court held: "It seems to me that a stay o f execution can properly be asked for where there is a court order granting a right to the respondent or commanding or directing him to do something that affects the applicant. In such a situation, the applicant can meaningfully ask the court for a stay and to restrain the respondent from executing that order pending the results o f an intended appeal/' [Emphasis added]. This is, to me, very similar to orders emanating from prerogative orders of certiorari, mandamus and prohibition which, by their very own nature, are 8 not executable. We underscored this position in Keith Horan & 3 Others (supra) which quoted an excerpt from Dimon Tanzania Limited v. The Commissioner General Tanzania Revenue Authority & 2 Others, Civil Appeal No. 89 of 2005 wherein the Court held: "Since the order dismissing the application for leave to apply for orders o f certiorari,, mandamus and prohibition is not capable o f being executed, it goes without saying that it is not capable o f being stayed." It is my considered view that the application before me lacks the qualities of a competent application. It follows that the same must fall through, and accordingly, I strike it out with no order as to costs. It is so ordered. DATED at DAR ES SALAAM this 26th day of August, 2024. M. K. ISMAIL JUSTICE OF APPEAL Ruling delivered this 26th day of August, 2024 in the presence of Mr. Thomas Mathias, learned counsel for the applicant and Mr. Norbert Mlwale, learned counsel for the Respondent, is hereby certified as a true copy of the