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Civil Application
No.116 of 2007
Court of Appeal of
Tanzania at Dar es
Salaam Msoffe
J.A
Godfrey Sayi Vs
mary Mndolwa
(Application for
stay of execution
from the decision
of the High Court
of Tanzania at
Dar es Salaam
Shangwa J)
The Court power to grant or to refuse
stay of execution order under rule
9(2)(b) of Court of Appeal rules of
1979 in unfettered and discretionary.
When considering application of stay
of execution in dispute of land Court
will take into account following
factors:

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; and
iii. Balance of
convenience.



IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM

CIVIL APPLICATION NO. 116 OF 2007

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

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

(Application for stay of execution from the
Decision of the High Court of Tanzania
at Dar es Salaam)

(Shangwa, J.)

Dated the 17
th
day of June, 2007
in
Civil Appeal No. 44 of 2006

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RULING
29
th
October & 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 6
th
day of November, 2007.


J. H. MSOFFE
JUSTICE OF APPEAL
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I certify that this is a true copy of the original.




S. M. RUMAYIKA
DEPUTY REGISTRAR