Amour Habib Salum v. Hussein Bafagi Civ no 274 of 2001

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO. 161 OF 2007

AMOUR HABIB SALUM…………………..………………APPLICANT

VERSUS

HUSSEIN BAFAGI………………………..…………….RESPONDENT

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

(Oriyo, J.)

dated the 29^th day of December, 2005

in

Civil Appeal No. 274 of 2001

------

RULING

26 February & 17 March, 2008

MUNUO, J.A.:

        The applicant, Amour Habib Salum, through the services of Ms Hamida Sheikh, learned advocate, brought a notice of motion under a certificate of urgency, seeking stay of execution in Civil Appeal No. 274 of 2001 in High Court of Tanzania at Dar es Salaam which judgment was delivered on the 29^th December, 2005, pending the determination of Civil Revision No. 143 of 2007.  The grounds of the Notice of Motion are stated as follows:

(a)       The notice of motion for revision proceedings has been lodged;

(b)      the application for revision has a lot of merit, as the applicant was a bonafide third purchaser of the suit property.

(c)       that if stay is not granted, it will defeat the very purpose of filing this application as well as the nationale of filing the application for revision proceedings.

(d)      that the applicant will suffer irreparable loss, which cannot be atoned by way of damages;

(e)       fairness, equity and natural justice.

In his affidavit in support of the application, the applicant deponed at paragraph 3 that in 1997 he purchased the house in dispute, located on Plot No. 113 Ndalala Street, Block A, Temeke, Dar es Salaam from one John Semsela without incumbrance or caveat lodged in the Land Registry implying that he was a bona fide purchaser for value without notice.  He then put his family into occupation of the same.  To his surprise, and without notice, the family was evicted by the Court broker per the Eviction Order dated the 16^th January, 2008.  Hence the present application for stay of execution.

        Counsel for the applicant contended that the purported eviction was by way of ambush so it was unlawful.  The Court, she urged, should restore the applicant into occupation of the house because although the applicant was evicted by the Court Broker, the respondent has not yet been put into possession so the premises are vacant at the moment.  She stated that the applicant’s family will suffer great hardship if stay is not granted.

        Mr. El Maamry, learned advocate for the respondent, contended that eviction was indeed lawfully conducted by the Court Broker as ordered by the trial court so execution was completed and as such, the application for stay of execution has been overtaken by events and ought, therefore, to be dismissed with costs.

        A copy of the Eviction Order was tendered at the hearing.  It shows that the Court of Resident Magistrate at Kisutu issued it on the 16^th January, 2008.  It was executed by the Court Broker on the 18^th January, 2008.

        The question is whether execution, the subject matter of the application for stay, has been conducted.

        The Eviction Order, duly endorsed by the Court Broker, speaks for itself.  The Court Broker’s endorsement at the back of the Execution Order reads:

AMRI YA MAHAKAMA IMETEKELEZWA TAREHE 18/01/2008 KWA KUMTOA MDAIWA NDANI YA NYUMBA.  BAADA YA UTEKELEZAJI NIMEMKABIDHI MDAI NYUMBA YAKE. MJUMBE HAJATUPA USHIRIKIANO.

HATUKUCHUKUA KITU.

                                               Sahihi ya Dalali: ……..sgd……..

                                                                       18/01/2008

                                               Sahihi ya Mdai:  ………..sgd……

                                               Sahihi ya Mdaiwa:  (none)

The above endorsement simply states that the Court Broker executed the Eviction Order on the 18^th January, 2008 by removing the defendant (now applicant) and handing over the premises to the plaintiff (now respondent).  The ten cell leader of the area refused to cooperate with the Court Broker in the execution process.

        At the hearing, the parties conceded that eviction was actually conducted by the Court Broker as ordered by the trial court but the learned counsel for the applicant challenged the eviction saying it was by way of ambush so it was unlawful.  Learned counsel for the respondent countered that eviction was lawfully done in compliance with the court order but that later the applicant blocked the entrance of the house by parking a motor vehicle at the gate/door to deny the respondent access to the house.

        In such circumstances, can it be said that the decree has been conducted and the application for stay has been overtaken by events?

        The learned author, Mulla on the Indian Code of Civil Procedure, 14^th Edition, at Page 1188 observes that –

“An order for a stay of execution implies that the decree has not been executed.  Therefore, where a decree has been executed, no order for stay can be made under this rule.”

The Court invoked the above rule in the cases of the National Bank of Commerce versus Justo Msechu & Sons Ltd. Civil Application No. 2 of 1997 (CA) (unreported); and the General Manager KNCU (1990) Ltd. versus Mbatama Rural Cooperative Society, Miscellaneous Civil Application No. 1 of 1999 (CA) (unreported) in which the Court struck out applications which had been overtaken by events because the execution of the decrees had been completed.

        In this case, the Court Broker evicted the applicant from the premises on the 18^th January, 2008 per the endorsement on the Eviction Order.  In that regard, the decree was executed on the 18^th January, 2008.  Under the circumstances the present application for stay of execution has been overtaken by events so the application is incompetent.

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