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.
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