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Civil ApplicationNo.116 of 2007 Court of Appeal ofTanzania at Dar esSalaam Msoffe

J.A

Godfrey Sayi Vsmary Mndolwa(Application forstay of executionfrom the decision

of the High Courtof Tanzania atDar es SalaamShangwa J)

The Court power to grant or to refusestay of execution order under rule9(2)(b) of Court of Appeal rules of1979 in unfettered and discretionary.When considering application of stay

of execution in dispute of land Courtwill take into account followingfactors:

i.

Whether the

appeal hasprima facie alikelihood ofsuccess.

ii.

Whether the

refusal of

stayingexecution islikely to causesubstantial

andirreparableinjury to theapplicant; and

iii. Balance ofconvenience.

IN THE COURT OF APPEAL OF TANZANIAAT DAR ES SALAAM

CIVIL APPLICATION NO. 116 OF 2007

GODFREY SAYI.................................................................... APPLICANT

VERSUS

MARY MNDOLWA............................................................RESPONDENT

(Application for stay of execution from theDecision of the High Court of Tanzania

at Dar es Salaam)

(Shangwa, J.)

Dated the 17thday of June, 2007in

Civil Appeal No. 44 of 2006

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RULING29thOctober & 6 November, 2007

MSOFFE, J. A.:

This is an application for stay of execution of an intended appeal

against the decision of the High Court (Shangwa, J.) in Civil Appeal No. 44

of 2006. The application is supported by the affidavit of Godfrey Sayi, the

applicant. At the hearing of the application the applicant was represented

by Mr. Byabato, learned advocate. The respondent appeared in person. It

is not in dispute that the respondent did not file an affidavit in reply in

terms of Rule 53(1) of the Court of Appeal Rules, 1979.

The dispute between the parties is on a piece of farm measuring

about 5 to 6 acres located at Kibwegere village, Kibamba area, Kinondoni

District, Dar es Salaam Region. The farm is registered as Farm No. 2243

with Tittle Deed No. 50312. The parties are son and mother in law,

respectively. The appellant married Anna, the respondents daughter, but

have since separated. Before the District Court at Kinondoni the appellant

sued the respondent as a next friend or guardian of his six children. He

prayed for a declaration that the farm is owned by the plaintiffs, for a

permanent injunction against the respondent or her agents, and general

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damages of 7,000,000/=. He lost in the suit. He appealed to the High

Court where he also lost hence the intended second appeal.

Paragraphs 2,3,4,5,6,7,8,11 and 12 of the affidavit in support of the

application read as follows:-

2. That the respondent is my ex mother in law and the previous

owner of a part on the suit premises, and at all material times

has been the defendant in a number of cases instituted by the

applicant in respect of the said landed property.

3. That in consideration of natural love and affection to her sole

daughter and her husband who had two children the

respondent invited the applicant to her farm and allowed him to

construct residential house to be used as their matrimonial

home.

4 That in response to that invitation the applicant collected some

resources and constructed two residential houses on the day

light and at all material time the respondent gave him moral

supports. One of the said buildings became a matrimonial

home while another was occupied by tenants.

5. That apart from the above buildings the applicant made

considerable developments in that land by clearing the entire

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bush and cultivating permanent crops such as coconut

plantations oranges mango trees and considerably expanded

that farm from 5.5 acres to 17.5 (an increase by 12 acres)

through purchase of two neighboring plots making it an estate

measuring 7.100 hectors.

6. That to signify her irrevocable grant of that land to her beloved

children the respondent initiated its entire survey including the

above referred 12 acres, altogether in the applicants name but

the latter, considering unpredictable marriage relations decided

to proceed with its survey which was completed in June 1993

and ultimate registered in their children names.

7. That in 1997 matrimonial differences begun to ensue between

the applicant and his wife which led to her deserting the

matrimonial home and went to Mburahati to live with her

mother.

8. That following this incidence the respondent, for the first time

turned out her previous grant and successfully but fraudulently,

obtained the village councils recognition as the owner of the

whole farm including the 12 acres purchased by the applicant

and immediately thereafter begun to process resurvey of the

entire farm in her own name. She also began to harass the

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applicant by attempting to throw him and his children out of

their matrimonial home and finally cut a portion thereof and

sold it to one George Lulandala without consulting the

applicant.

11. That the respondent has longed threat to evict the applicant

from the suit premises and went to the extent of harassing the

above mentioned buyers of the plots sold by the applicant

leave alone destruction and harvesting the applicants crops

under pretence of ownership decreed by the High Court.

12. That on the preponderance of probabilities the applicant stands

to irreparably suffer in comparison with the respondent should

the High Court decree be executed as decreed especially

considering the fact that the applicant resides in the suit

premises whereas the respondent has other abode to reside.

Mr. Byabato adopted the affidavit of Mr. Godfrey Sayi. In

elaboration, he submitted to the effect that if a stay order is not granted

the applicant is bound to suffer irreparable loss if the houses on the farm

are to be demolished in execution of the High Court decree. Also, tenants

on the houses will suffer, he urged. On balance of convenience, he was of

the view that it tilts in favour of the applicant because the respondent is

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currently living elsewhere, at Mburahati to be specific. He also urged that

the intended appeal has chances of success as alluded to by the averments

under paragraphs 3, 4,5,6,9 and 10 of the affidavit in support of the

application.

On the other hand, the respondent did not submit much on the

application. At best, her assertion was that she is the lawful owner of the

farm in dispute.

The courts power to grant or to refuse a stay order under Rule

9(2)(b) of the Court of Appeal Rules, 1979 is unfettered and discretionary.

Invariably, when considering an application of this nature the court will

take into account the following factors:-

(1)

Whether the appeal has, prima facie, a

likelihood of success.

(2) Whether the refusal of staying execution is

likely to cause substantial and irreparable

injury to the applicant; and

(3)

Balance of convenience.

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Starting with the first point, the issues raised in the affidavit in

support of the application and in Mr. Byabatos oral submission demand, in

my view, a careful analysis of the evidence and the law before one can

meaningfully say whether or not the intended appeal has likelihood of

success. The issues are yet to be argued by the parties. Under the

circumstances, I am not in a position to give an informed opinion as to

whether or not the intended appeal has chances of success. In Tanzania

Posts & Telecommunications Corporation Vs Ms Bs Henrita

Supplies (1997) TLR 141 Lubuva, J. A. sitting as a single of this Court

had this to say at page 144:-

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 second point for consideration is best captured under paragraph

11 of the affidavit. I am of the considered view that a refusal to stay

execution is likely to cause substantial and irreparable loss/injury to the

applicant. The applicant has not been contradicted in his averment that he

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lives in the farm. If so, demolition of the houses in the farm is likely to

cause irreparable injury that will not easily be capable of being atoned by

way of damages in the event he succeeds in the intended appeal. In

similar vein, the tenants living in the farm will also suffer if execution is to

take place before the intended appeal is determined.

As for the last point on balance of convenience I agree with Mr.

Byabato that it tilts in favour of the applicant. As already observed, the

applicant was not contradicted that he lives in the farm and that the

respondent has some other place of abode. On balance, it will be fair to

maintain this status quo pending determination of the intended appeal.

Doing so will, in my view, serve the interests of both parties.

In the event, for the above two reasons, execution of the decree in

High Court Civil Appeal No. 44 of 2006 is stayed pending determination of

the intended appeal. Costs will be in the cause.

DATED at DAR ES SALAAM this 6thday of November, 2007.

J. H. MSOFFEJUSTICE OF APPEAL

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I certify that this is a true copy of the original.

S. M. RUMAYIKADEPUTY REGISTRAR