Appeal court downplays High court decision on appellant

DAILY NEWS Reporter

THE Court of Appeal has refused to stay the decision, requiring a religious institution styled in name of City Christian Fellowship and its senior pastor, Godrefy Malassy, to vacate the building they have been conducting spiritual services at Sinza area

This follows the ruling given by Justices Bernard Luanda, Batuel Mmilla and Richard Mziray to dismiss with costs the application for stay of execution of the decision given on April 28, this year, by Judge John Mgetta before the High Court’s Lands Division.

“The law enjoins us not to grant the order sought in this application. We are therefore constrained to dismiss this application with costs,” the justices declared.

With great respect, they noted, Rule 11 (2) (b) (c) and (d) of the Rules were clear on the condition which the applicant must comply with before being granted the order for stay of execution.

Among the conditions, they noted, relate to deposit of security for due performance of the decree.

“We must say with certainty that the applicants have definitely failed to give assurance or security for the due performance of the decree in case the intended is against their favour.

That indeed is contrary to the spirit of Rule 11 (2) (d) (iii) of the Rules,” they said. Before the High Court, Judge Mgetta ruled in favour of businessman, Prosper Rweyendera, after granting a suit he had lodged, seeking orders, declaring him the owner of the building on plot number 932 Block C, Sinza, which is under certificate title No. 32759 within Kinondoni Municipality.

“I find the plaintiff (Rweyendera) has successfully proved his case to the balance of probability as per evidence on records.

The defendants (Godfrefy Malassy and City Christian Fellowship) are accordingly ordered to vacate and to be specific be evicted from the said premises forthwith,” he declared.

In execution proceedings conducted before the Court’s District Registrar Richard Kabate in May tis year, he respondent had been summoned to show cause why the decree of the court should not be implemented.

The defendants explained that they have already lodged a notice of appeal to oppose the judgment and that if evicted the members of the church would displaced, thus leading the church to collapse. The further claimed that they had not invaded the premises, but entered therein on lease agreement.

However, the Registrar agreed with submissions presented by the counsel for the plaintiff, Mr Joseph Rutabingwa, that the reasons advanced by the defendants over the matter had no legal basis and directed the appointed court broker to evict them with immediate effect.

“Filing a notice of appeal cannot be a bar for execution of the decree. A party cannot wait to enforce his rights simply because there is a notice of appeal. What will happen if you do not appeal? This cannot be entertained.

Execution of the decree should proceed,” he ruled. The dispute is traced as from September 2, 1999 when the plaintiff and the Church through its pastor entered into lease agreement in respect of the suit premises for a pried of three years for carrying out religious services.

The agreement had to commence on November 1, 1999 until October 31, 2002. In July 2002, the defendants renewed the lease by advancing payments of two years rent in July and August 2002 through cheques of 10m/- each.

This had to expire on October2004. Prior to advancement of the amount, it was claimed that the defendants publicized to have purchased the suit premises. The plaintiff had to seek written confirmation from the defendants on the claims.

On September 5, 2002, the defendants made a request to purchase the premises at 80m/-, but the request was rejected. Later on, on November 4, 2002, the defendants allegedly communicated to the plaintiff to the effect that they were actually purchasers and the advances payments was not rent but part of the purchase price.

On April 21, 2004, the plaintiff served them a notice of termination of the lease agreement.