IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
CIVIL APPLICATION NO. 158 OF 2007
ELLADIUS TESHA………………….APPLICANT
VERSUS
JUSTIN SEKUMBO……………………RESPONDENT
(Application Stay of Execution from the Judgment of the
High Court of Tanzania at Dar es Salaam)
( RUGAZIA, J.)
Dated the 28th Day of September, 2007
in
Land Appeal No 19 of 2006
------------RULING
NSEKELA, J.A.
In Civil Application No 158 of 2007 the applicant one Elladius Tesha,
by notice of motion is applying for an order that the execution of a
decree passed in favour of the respondent Justin Sekundo in Land
Appeal No. 19 of 2006 High Court (Land Division) (Rugazia, J.) be
stayed pending the determination of the intended appeal. Mr. Maira,
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learned advocate, represented the applicant while Mr. Kariwa,
learned advocate, represented the respondent.
In paragraphs 4,5,6 and 7 of the affidavit in support of the
application, sworn by the applicant Elladius Tesha, it is averred as
under“4.
That if the execution is not stayed I will suffer an
irreparable injury as we and my family shall have no roof
over our heads as the suit premises is our only residential
premises which I had bought from the respondent.
5.
That the balance of convenience lies with me who is living
in the house at the present and if I am to be evicted the
emotional
injury
and
economic
loss
is
(sic)
not
irreparable.
6.
That I have overwhelming, chances of success in the
appeal and I am further advised by my advocate Moses
Maira that there are numerous legal issues to be
discussed by this Honourable Court.
7.
In the premises justice and equity demands that stay be
ordered.
Addressing the Court briefly Mr. Maira adopted the contents of
the affidavit in support of the notice of motion and prayed that the
Court’s discretion be exercised in favour of the applicant. On his part,
Mr. Kariwa, learned advocate, submitted that the applicant had not
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made out a case to entitle him to the prayer sought. He also adopted
the affidavit in reply sworn by Julius Ndanzi, more particularly
paragraph 5. He added that the applicant wants to stay in the suit
premises without paying rent. In his reply Mr. Maira stated that Mr.
Kariwa had not filed a notice of change of advocates within the
meaning of Rule 30 of the Court of Appeal Rules.
Mr. Maira is on firm ground in stating that Mr. Kariwa did not
represent the respondent in the High Court proceedings. Indeed,
Julius Ndazi in his affidavit in reply stated in paragraph 1“ 1. That I am an advocate of the High Court of Tanzania and
other Courts subordinate thereto save Primary Courts and
was duly instructed to represent the respondent in the
High Court of Tanzania (Land Division) and hence
conversant with all the facts I am about to depose here
under.” (emphasis supplied).
However the Court record shows that Mr. Kariwa, learned
advocate for the respondent, filed notice of change of advocate on
the 14.2.2008. I should mention in passing that if Mr. Maira wanted
to raise the issue of alleged non-compliance with Rule 30 as a
Preliminary objection on a point of law, the learned advocate should
have invoked Rule 45(1) of the Court of Appeal Rules, instead of
casually raising it in the manner he did.
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An application for stay of execution of a decree pending the
determination of an appeal can be stayed when any or more of the
following factors have been established, namely(i)
Whether the appeal has, prima-facie, a likelihood of
success;
(ii)
Whether the refusal of staying execution is likely to cause
substantial and irreparable injury to the applicant.
(iii)
Balance of convenience. (See: Civil Application No. 146 of
2001 Stanbic Bank Tanzania Limited and Woods Tanzania
Limited (Unreported)
The onus is on the applicant to demonstrate the existence of
factors or circumstances which will justify the grant of an order of
stay of execution. The factors must relate to the enforcement of the
judgment and must be deposed in the affidavit in support of the
application.
The power to grant stay is discretionary and flows from the
jurisdiction conferred on an appellate court which is equitable in
nature. One of the determining factors that calls for consideration is
whether by not making an order of stay of execution, it would make
the appeal if successful, nugatory in that it would deprive the
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applicant the result of the appeal. I am not inclined at this stage to
consider whether or not the appeal has overwhelming chances of
success as the applicant put it. This is not the time to test the validity
or correctness of the judgment, that is the merits of the appeal. In
Tanzania Posts & Telecommunications Corporation
v M/s H. S.
Henritta Supplies (1997) TLR 141 at page 144, Lubuva, J.A. sitting as
a single judge of the Court stated as follows“ It is however relevant at this juncture, to reflect that this
Court has on numerous occasions taken the view that the
chances of success of an intended appeal though a relevant
factor in certain situations, it can only meaningfully be assessed
later on appeal after hearing arguments from both sides.”
The applicant averred in his affidavit to the effect that he will
suffer irreparable injury if a stay order is not made. The thrust of his
contention is that his family is accommodated at the suit premises
which he, allegedly bought from the respondent. If evicted from the
suit premises, this will cause emotional as well as irreparable
economic loss. The balance of convenience is as well tilted in favour
of the applicant. Generally speaking, dispossession during the
pendency of an appeal of a party in possession is considered to be
substantial loss to the party applying for stay of execution. Mr Kariwa
has argued however that in spite of an appeal having been preferred,
why should a party having succeeded from the court below be
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deprived of the fruits of the decree in his hands merely because the
losing party has chosen to appeal? The High Court made an order to
the effect that the applicant do vacate the suit premises and pay rent
arrears. Therefore in order to ensure that the applicant is not evicted
from the suit premises during the pendency of the appeal, I shall
grant the application provided that the applicant deposits in court
within twenty-one days from the date hereof the rent in arrears
ordered by the High Court.
It is accordingly ordered.
DATED at DAR ES SALAAM this 5th day of March 2008.
H. R. NSEKELA
JUSTICE OF APPEAL
I certify that this copy is a true of the original.
(S. M. RUMANYIKA)
DEPUTY REGISTRAR
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