By FAUSTINE KAPAMA-Judiciary
THE Court of Appeal has dismissed the application by
J.W. Ladwa (1977) Limited seeking to stay the execution of decree of High Court,
which declared Bansons Enterprises Limited legal owners of a plot situated at Chang'ombe
area in Dar es Salaam.
Justices Ferdinand Wambali, Rehema Kerefu and
Abrahaman Mwampashi ruled against J.W. Ladwa (1977) Limited, the applicant,
after failure to satisfy two conditions provided for under the Court of Appeal
Rules of establishing substantial loss and deposit of security for due
performance of the decree.
“We find that the applicant has failed to satisfy
both two conditions set out under rule 11 (5)(a) and (b) of the(Court of
Appeal) Rules and she has therefore not shown good cause for grant of the
application. Accordingly, the application is hereby dismissed,” they declared.
In its judgment, the High Court declared Bansons
Enterprises Limited, the respondent in the appeal, as legal owner of the land
on Plot No. 273 Block "C" at Chang'ombe area Dar es Salaam and
ordered the respondent to vacate the area and also pay 10m/- as damages for
trespass.
During hearing of the application, Advocate Richard
Rweyongeza, had submitted in reference to an affidavit sworn by director and
shareholder, Mr Chandulal Ladwa, that
the applicant would suffer irreparable loss if the decree is executed as the respondent was intending to sell the plot
in question.
In their ruling delivered in Dar es Salaam recently
the justices agree with Advocate for the respondent, Mr Thomas Brash that the
applicant has not been able to sufficiently demonstrate that substantial loss
may result to her if the application is refused.
“(…….) Since the plot subject to the vacant
possession order, is said to be undeveloped and as the allegation that the
respondent intends to sell it is not proved, then if the applicant is evicted
and in case her intended appeal succeeds, repossession of the plot will easily
follow suit,” they said.
Regarding payment of 10m/-, the justices noted the
applicant undertook to surrender two certificates of title namely; Title No.
977228 Plot No. 240 Block "K" and Title No. 124738 Plot No. 223 Block
"K" both situated at Mapinga Bagamoyo Urban area which are in the
name of Simba Motors (T) Limited.
“Though, the offer looks attractive, but considering
the fact that the two plots do not belong to the applicant and there being no
evidence establishing that the same are even in her possession and control,
then, the two plots cannot form a good security in this matter,” they ruled.
According to the justices, the nexus between the
applicant and the two properties offered as security for the payments of 10m/-
as decreed by the High Court has not been shown and substantiated in the
supporting affidavit.
They furthermore observed that there was no evidence
on record of the application that the owner of the properties, that is, Simba
Motors (T) Limited, has consented for her properties to be offered as security
for the due performance of the decree.
“ It is therefore our settled view that in
compliance with rule 11 (5)(b) of the Rules, where the security to be given is
in form of a property, the property so given must belong to the applicant or if
not, there must be a consent from the owner for the property to be so given,”
the justices said.
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Court of Appeal building.
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