CIVIL APPLICATION NO

IN THE COURT OF APPEAL OF TANZANIA

AT DODOMA CIVIL APPLICATION NO. 207 OF 2025 YOHANA MAFURU.....................................................................1st APPLICANT KAN ISA LA EAGT VINGUNGUTI..............................................2nd APPLICANT

THE REGISTERED TRUSTEES OF THE EVANGELISTIC ASSEMBLIES OF GOD OF TANZANIA (EAGT)....................... 3rd APPLICANT

VERSUS NICORAUS PASCHAL.............................................................. 1st RESPONDENT SALOME MWILIKO.............................................................. 2nd RESPONDENT (Application for stay of execution of the Decree of the Resident Magistrate Court of Dar-es-Salaam, at Kinondoni (F.S. Kiswaga, PRM Ext J ) Dated 5th of December 2023 in Extended Land Appeal No. 190 of 2022

RULING 25th & 27th February, 2025 NAIMGELA, J.A.: The applicants herein, brought this application by way of a notice of motion made under rule 11 (3) of the Tanzania Court of Appeal Rules, (the Rules). Ordinarily, they ought to have premised the application under rule 11 (3), 11 (4), 11 (4A), 11 (5) (a) and (b), 11 (6), 11 (7) (a), (b), (c) and (d) and 48 (1) of the Rules, these being relevant provisions for consideration in an application of this nature. That omission, notwithstanding, is not fatal based on the overriding objective principle. As such, this Court proceeds on the assumption that the provisions were implicitly cited and relied upon by the applicants. The applicant's notice of motion is supported by an affidavit of the first applicant. In this application, the applicants are moving this Court to stay execution of the decree in Ext. Land Appeal No. 190 of 2022 and that of District Land and Housing Tribunal (DLHT) for Ilala in Land Application No. 304 of 2020 on the grounds, which may be paraphrased as follows: 1. The applicants have initiated an appeal process by lodging a notice o f appeal and requested fo r other necessary docum ents to facilitate the appeal process.

2. The respondents have file d fo r execution vide Misc. Application No. 2 o f 2025, and if granted they intend to dem olish the property erected on the disputed land and evict the applicants.

3. In the event the execution is effected the applicants w ill suffer substantial loss. The facts that led to this application are succinct. In the year 2020, the first respondent filed, before the District Land and Housing Tribunal (the DLHT) for Ilala, Land application No. 304 of 2020. Among other things, he requested in that application a declaratory order that the second respondent had unlawfully sold to the applicants contested landed properties registered as No. ILA/VNG/MBN16/74 and, that, the sale process be deemed void. Upon hearing, the DLHT granted the claims in favour of the first respondent and made some other consequential orders. Aggrieved, the applicants filed an Ext. Land Appeal No. 190 of 2022 before the Resident Magistrate Court of Dar-es-Salaam, at Kinondoni and the matter was presided over by Hon. Kiswaga, PRM, ext. J; hence, his decision amounts to a decision of the High Court of Tanzania. Having heard the parties, the Court dismissed the appeal and made some consequential orders as well. The applicants were still aggrieved and, among other steps, initiated an appeal process by filing a notice of appeal intending to appeal to the Court of Appeal of Tanzania. Upon serving the notice of appeal to the respondents, the latter refused service and on the 19th of January, 2025, the first respondent served the applicants with a notice of execution issued by the

DLHT, hence this application. When the application was called on for hearing, Mr. Alphonce Katemi, a learned advocate, appeared for the applicants. The respondents appeared in person unrepresented. Submitting in support of the application, Mr. Katemi adopted the applicants' supporting affidavit and urged this Court to grant the application based on the grounds stated in the notice of motion. He contended that if the application is denied, the applicants stand to suffer irreparably as the respondents intend to demolish a church building erected on the disputed land. He also submitted that, if that is to happen, the intended appeal will be rendered nugatory. He argued that the applicants are fully compliant with the law because, in their supporting affidavit, they have demonstrated the type of loss they will experience and that, if their planned appeal is unsuccessful, they are prepared to provide security of due performance of the decree. For their part, the respondents opposed the application. In the first place, the first respondent, having adopted the reply affidavit filed in Court, informed this Court that it is the respondents who stand to suffer most, because currently there is no pending appeal in Court. He contended that what was filed in Court was an application for extension of time, Civil Application No. 609/17 of 2024 and that there is an order given by this Court

(Maige, J.A.) in Civil Application No. 247/17 of 2024. He also argued that the applicants had not provided clarification on the security that would be required to ensure the decree was properly performed. As for the second respondent, her submission was brief. She only stated that the application should not be granted. Mr. Katemi made a very brief rejoinder submission. He stated that all that the first respondent stated are matters not stated in his affidavit in reply. He also contended that the kind of loss to be suffered and the commitment to furnish security are all matters stated in the applicants' affidavit file in support of the notice of motion. He urged this Court to grant this application. I have considered the rival submissions made by the parties herein and examined the record of the application. Essentially, the key issue for determination by this Court is whether this application is in full compliance with the requirements of rule 11 of the Rules. In his submission, Mr. Katemi contended that the applicants are in full compliance with the law and, for that reason, urged this Court to grant the application and order a stay of execution of the impugned decree. The respondents have argued on the contrary. According to the law, however, such an application must essentially be filed within 14 days of the applicant learning of the notice of execution. Rule 11 (4) of the

Rules provides for such a time limit. According to paragraph 9 of the applicants' supporting affidavit, the information regarding the pending Misc. Civil Application No. 2 of 2025, which is before the DLHT and seeking to execute the decree of the High Court, was received by the applicant on the 19th of January 2025 and this application was filed on the 31st of January 2025. This means that the application was filed well in time and the filing complied with the requirements of rule 11 (4) of the Rules. Concerning compliance with rules 11 (3), 11 (5) (a) and (b) and 11 (7) (a), (b), (c) and (d) of the Rules, I am also satisfied that the applicants are in full compliance with the requirements stated under those rules. In principle, if an application of this kind is to be granted, the applicant must exhibit good cause. That is the requirement under rule 11 (3) of the Rules. The good cause that may be exhibited to warrant the granting of the application includes a situation where it is shown that the applicants stand to suffer substantial loss if the application for stay of execution is not granted. Rule 11 (5) (a) of the Rules requires such a demonstration to be made and the Court must be satisfied with it. Despite the first respondent's argument that the respondents stand to suffer more, I do not believe that to be the case. In the context of the application at hand, it is

indicated, paragraphs 10 to 12 of the applicants7 affidavit filed in support of the application, that the respondents intend to demolish a church building erected on the disputed land and, if execution is to proceed, that means the applicants stand to suffer substantially unless a stay order is granted. It is my considered view, therefore, that the applicants have satisfied the requirements of rule 11 (5) (a) of the Rules. In accordance with paragraph 14 of the same affidavit submitted by the applicants in support of the notice of motion, I also observe that the applicants are prepared and willing to provide security for the due performance. Although the first respondent contended that the form of security has not been stated, this Court has, in various decisions, held that the form of security for due performance of a decree depends on the nature of each case. See, for instance, the case of Mohamed Masoud Abdallah & Others vs. Tanzania Road Haulage (1980) Ltd (Civil Application No. 58 of 2016) [2019] TZCA 198 (24 June 2019). In view of all that, it is my finding as well, that, the applicants have satisfied the requirement of rule 11 (5) (b) of the Rules. Given that the applicants have cumulatively complied with all statutory requirements stipulated under rule 11 of the Rules, hence warranting the granting of a stay order, I hereby grant this application and order that each of the applicants shall, within 14 days of the delivery of this ruling, execute a bond committing himself to maintain the status quo of the suit property, which is the subject of the decree. In the circumstances of this application, I make no orders as to costs. It is ordered so. DATED at DODOMA this 27th day of February, 2025. D. 1 NANGELA

JUSTICE OF APPEAL The Ruling delivered this 27th day of February, 2025, in the presence of Mr. Alphonce Katemi, learned counsel for the Applicant and 1st and 2nd Respondent in person, Linked via Video Conference from Dar es salaam, is hereby certified as a true copy of the original.