Godfrey Sayi v. Mary Mndolwa Civ no 116 of 2007 (farm disputes)

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

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 respondent’s 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 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 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 applicant’s 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 council’s 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 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 applicant’s 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 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 court’s 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.

Starting with the first point, the issues raised in the affidavit in support of the application and in Mr. Byabato’s 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 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

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

S. M. RUMAYIKA

DEPUTY REGISTRAR

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