ST*{

oFBcq.rrTtuN.
.*SE'rr4R
riy _A
fltLtsi*
IN THE
COURT
OF APPFAT
OF TANZANIA
\
AT M!ryANzA
(CORAM:
MZA
CIWL
AFPLICATION
NO. 11 OF 2013
J ORAMU
Br s wALO. . . i , r , r . r r r * r r f , , . . r , , , r . f r r r t , r * . . r r . . . r , r ' r , r . i * . r r r r . f . , r : , r . , . . , AppLr c ANT
HAMI SRI CHARD, , , , , , , , r , , , , . r , r , , , , ,
VERSUS
r . . . r . r . r r . r r * r r , r . t : r : f
f , r , . r . : r r f
, r i r . r , r r f
RE S p o NDE NT
(Appricafion
for stay
of execution
from
the Judgment
and Decree
of the Hi gh
Court of Tanzani a
at Mwanza)
OjtuanresiJ)
Dated
ZTth
day of June,
A013
RULING
OF THE
COURT
13' n & 15th May,2014
KAIJAG.E.
J.A.:
Thls
is an application
for stay
of execution
of the decree
of the High
court
of Tanzania
sitting
at Mwanza
in (pc)
civir Appear
No. 27 af2010.
The judgment
on appeal
was delivered
on z7h June,
2013 in favour
of the
respondent'
Aggrieved
by that
decision,
the applicant
timeously
lodged
a
notice
of appeal
to this
court
on Bth rri;
zu:3,Anticipating
early atLempts
to'execute
the^decree
before
the institution
and/or
determination
of the
of
27
t t r i
' J i
/
, $ d
I
lntended
appea
ii
I
r i
-i
r
Argutt,
2013'
l, the mppllsant
lodged
the Present
aPPlication
on
2$tr'
The application
is by
notice
of motion
under
rule
1t
(2)
(b) and
(c) of
t heCourt of Appeal Rul es' 2009(**?, Rul es)' andi ssupport edbyt he
applicant's
own
affidavit'
Mr. steven
Magoiga,
learned
counsel,
appeared
before
us
to
prosecute
the application
on behalf
of the
applicant'
The
respondent'
who
opPosed
it, aPPeared
in
Person'
Wet hi nkt heonl ydeci si vei ssuecal l i ngf orourat t ent i onand
determination
in this application
is whether,
or, to the applicant
has
satisfied
the
thr.ee
cumurative
preconditions
for a sray
order
stipurated
under
rule
11
(2) (d) of the
Rules,
which
provides:-
"R' 11
(2) Subiect
to the
provisions
of sub-rule
J
t hei nst i t ut i onof anappea| sha| | not operat et o
susryld
any
sentence
or to stay
execution
but
may-
{a}
"'(not
relevant)
1 *
W
" ' v
I t I l P w 4 " l ; r "
.g
f '
a
notice
of
aPPeal
-*" ntsil nflceedlngst
wkere
t
drlY
ctvll
prvct
has
heen
lodged
tn
a#ordanc
appeat
shall
nat
opera{
as
a
stay
of
execution
of
thedecreeororderappea|edframexceptsofaras
the
High
Court
or
tribunat
may
order'
nor
shall
execution
of
a
decree
be
stayed
by
reason
only
of
an
appeal
having
been
preferred
from
the
decree
or
order;
but
the
Caurt'
may
upon
good
cause
shown'
order
stay
of
execufion
0f
ldch
decree
or
order'
(c)
-.'(not
relevant)
(d)
no
order
for
stay
of
execufion
shalt
be
made
under
this
rule
unless
the
Court
is
satisfiedt'
(i)
that
substantial
loss
rnay
result
to
the
party
applying
for
stay
of
execufion
unless
the
order
is
made;
(ii)
that
the
aPPlica$on
has
been
without
unreasonafrlv
delaY;
and
made
bY
ttre
(iii)
*,,That
security
has
been
given
Dr
appticant
for
the
due
pe#ormance
of
','llF
. ! " J ,
.n
E
fl
such a decree or order as rnty ultimately
be binding apon him?'
fEmphasis
is ouril.
Going by the notice of motion, the applicant in seeking the stay of
execution order, is relying on the folbrniiAg three grounds:-
" (i)
The applicant is aggrieved by the
judgment
and
decree in appeal of the High Court and intends
to appeal to the Court of Appeal,
(it)
In the event of an order of stay of execution is
not made, the respondent who is preparing
to
execute the decision of the High Court as
confirmed by the Honourable Judge, the
' t
: i
applicant will sa#rilmu' substantial loss because the
respondent is npt the right owner or benefrciary
of the disputed land.
(itil If the decree in appeal wi// be executed, the
intended appeal wi// be rendered nugatory. "'
submitting
h
support of the application, Mr. Magoiga amplified on
and adopted the grounds
reflected in the notice of motion and in the
1 .
f \
l r
supporting
affidavlt
taken by the applicant himself. He further informally
and orally raised
a
jurisdictional
issue which he formulated
as an additional
precondition
for a grant
of stay order, but which is not envisaged
under
item (d)
of rufe 11 (2)
of the Rules. However,
he conceded that the
applicant
has not fulfilled pre-condition
(iii)
of the said item (d)
by not
providing
security.
The respondent,
on the other hand, appears to have
exercised
his discretion
under rule 56 (I) of the Rules. He did not lodge an
affidavit in reply. He simply pleaded
to, us that a stay order sought by the
applicant be refused.
on the basis of the grounds
stated in the applicant' s
notice
of
motion,
his affidavit
filed in support
thereof
and the submission
made on
his behalf
by Mr' Magoiga,
we are satisfied
that the applicant has fulfilled
conditions (i) and (ii)
stipulated
under item (d)
of rule 1t (z)
of the Rules.
However,
a firm stance
taken by this Court on the grant
of stay orders
under the said Rule is that the three conditions
stipulated
under item (d)
rnust be conjunctively
and not disjunctively
satisfied. (See,
for instance,
THEROD
FREDdICK
V. ABDUSAMUDU
SALIM,
CiViI APPIICAI;ON
NO. 7
of ZOLZ,
GEITA G0LD
MINING
LIMITED
V. TWALTB
ALLY, Civi|
Application
No. 14 0f 20!2, and losEpH
ANTHOHY
SOARES
@ GOilA
)
v'
HussErfu
sla
oMARy,
civir
Application
No.
6 of ?.arz,
{AIl
unreported).
In Therod
Fredrick
case (supra),
we held
that:-
'As
is
immedntely
d*ceminrc
from
the
above
*xtracf,
Rule
1I
e)
k more
restrictive
in scope
than
the
former
Rule
g
e)
of the
I
g(g
Rufes.
On
the
terms
of the present
Ruleq
the
court
no ronger
has
the luxu4r
of granting
an
order
of stay
of execution
on
such
terms
as
the
Couft
may
think just;
rathe4
the
court
must
be satisfred,
just
as the
applicant
wi//
be required
to fu/fi//
the
followng
cum
ula
tiJ/e
requiremen
7s ;
_,,
(1)
Lodging
a Noffce
of Appeal
in
accordance
wth
Rule
BJ;
Showng
good
cause
and;
Complying
wtth
the provisions
of item
(q
0
(ir)
and (iit).-
case/
it
was
imperative
prerequisite
condition
of
(2)
(3)
In
thi s
fundamental
for
the
giving
appficant
to fulfill
a
security ,for
the
due
other
under
Costa, Civil
Application No. 11 of 2010
(unreported), this Court held:-
"One other condition is that the applicant for a stay
order must
give security for the due
performance of
the decree against him. To meet this condition, the
law does not strictly demand that the said security
must be
given prior to the
grant of the stay order,
To us, a firm undeftaking by the applicant to
provide security might
prove t to move the
Court, all things being equal, to grant a stay order,
provided the Court sets a reasonable time lrmit
within which the applicant should
give the same."
The applicant having furnished security or made a firm
undertaking for
giving such security; in his sworn affidavit or in the
submission made on his behalf by Mr. Magoiga, settled law requires us not
tc
grant the ordtsf sought. Accordingly, we hereby dismiss this application
with costs.
It i$ s0 nrder$d,
trATHn at MltlfANUA this 14th day of May, 2014,
B. M. LUANDA
JUSTTCE Or APPFAL
S. A. MASSATI
JU$,TtqE
gr
Ap_PEAL
S. S, I(AIJAGE
JUSTICF
OF APPEAL
I ceftify.that this is a true copy of the original,