abduel gilead kitururu ta amicus attorneys vs alsan investment ltd 2022 tzhclandd 12754 15 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND REVISION NO.02 OF 2022 ABDUEL GILEAD KITURURU T/A AMICUS ATTORNEYS APPLICANT VERSUS ALSAHI INVESTMENT LTD RESPONDENT RULING 08/09/2022& 15/12/2022 Masoud. J. In this ruling, I am to determine whether there are errors material to the merit of the case involving Injustice in execution proceeding in Misc. Appiication No. 310 of 2021 before the District Land and Housing Tribunal for Ilala presided over by Hon. Mugulambwa, the Chairman. The aiieged errors were set out by the applicant in his affidavit supporting the application for revision which was brought under sections 41(1) and 43(l)(a) &(b) of the Land Disputes' Courts Act, cap. 216 R.E 2019. The aiieged errors in a nutshell are that, there was a failure of the district tribunal to consider his affidavit, failure to interpret the consent settlement,, failure to understand the true import of the consent settlement order, and that the proceedings did not reflect what was submitted. The respondent opposed the application by filing a counter affidavit deponed by the respondent. Through the said counter affidavit, the respondent had it that in all that the applicant breached the terms of the consent settlement decree, as he failed to comply with payment schedules as set out In the said decree. Comparing the respondent's counter affidavit with the affidavit of the applicant replying to the counter affidavit, it is apparent that the respondent's averment as to how the applicant's payments were in breach of the consent settlement decree was not disputed but noted without anything further being stated. The claim that the settlement was varied by the parties, which is at the heart of the applicant's case, and repeated in his reply to the counter affidavit was disputed by the respondent as the alleged email correspondence could not amend the consent settlement decree. The respondent equally insisted that execution proceedings were launched as a result of blatant default by the applicant. The application was attributed as a means of delaying justice and was listed amongst more or less similar applications filed by the applicant. The application was heard by filing written submissions. The rival arguments that ensued were on whether there were errors material to the merit of the case involving injustice which issue was set out at the beginning of this ruling. In his submission in chief, the applicant through Mr Mafuru Mafuru, learned Advocate, said that the default would under the consent settlement decree arise when there are three consecutive defaults, that is, failure to pay the requisite instalments for three months in a row or upon failure to pay the debt in 24 months, which position was not disputed by the respondent. However, despite the afore mentioned position, the district tribunal observed in its ruling sought to be revised that the applicant insisted that he is within time to make the payment. And that he did not also dispute to have defaulted to comply with the settlement for failure to pay Tshs 5,000,000/- for three months consecutively. According to the learned counsel for the applicant, the district tribunal erred for failure to find that pursuant to item 1(a) and (b) of the Consent Settlement Decree, the applicant should not fail to pay Tshs 5,000,000/- per month for three consecutive months in a row. That is he should not fail to pay for three counting consecutive months. He told the court that the manner in which the applicant complied with the payment schedule under the consent settlement decree is set out in paragraph 4 of his affidavit supporting the application. The said paragraph showed that the applicant deposited Tshs 5,000,000/- in October 2020, and Tshs 5,000,000/- in November 2020. Subsequently, he deposited Tshs 4,000,000/- along with a request that the remaining Tshs j 1,000,000/- would be paid in the future. In the same paragraph, the applicant claimed that the respondent accepted the request, but claimed that the amount paid in February and the remaining Tshs 1,000,000/- were for December 2020 and not for February 2021. It was also submitted by the counsel for the applicant that the district tribunal did not consider the applicant's affidavit which was filed before the tribunal. According to the learned Advocate the affidavit detailed the manner in which the payment was made pursuant to the consent settlement decree. In his replying written subrnission, the counsel for the respondent argued that the alleged errors do not amount to errors material to the merit to the case involving injustice in execution proceeding in Misc. Application No. 310 of 2021 before the District Land and Housing Tribunal for Ilala presided over by Hon. Mugulambwa, the Chairman. That was all what the counsel said In his lengthy submission supported by lots of authorities. He said the applicant should have appealed as opposed to applying for revision and should have availed to this court the proceedings of the lower tribunal in respect of which the revision is sought. On my part, I considered the alleged errors in the light of the rival submissions, the affidavits, counter affidavit, and the reply to the counter affidavit. I did so whilst also making sense of the ruling given by Hon. Hon. Mugulambwa, the Chairman in Misc. Application No. 310 of 2021 which is sought to be revised based on the alleged errors. Having heard the parties through their learned counsel, the Hon Chairman was satisfied that there was a default on the party of the applicant to comply with the consent settlement order. The learned Chairman made sense on the consent settlement order as he was mindful of the rival submissions of both learned counsel which I had no doubt were based and informed by the record before the district tribunal. The email correspondences relied on are In themselves evident of failure to comply with the decree if one goes by what the applicant's affidavit was all about. Further that the argument that there was gross failure to consider the applicant's affidavit filed by the applicant In respect of the proceedings in Misc. Application No. 310 of 2021 is to me misplaced r-" if one considers the submissions made by both counsel before the district tribunal and the reasoning of the Hon. Chairman for his ruling. All considered, I am satisfied that the decision of sought to be revised is free from the alleged errors. In other words, the errors do not in my view constitute errors material to the merit of the case involving injustice. In the results, the application is without merit. It is accordingly dismissed with costs. It is so ordered. DATED and DELIVERED at Dar as salaam this 15^^ December, 2022. £ I. B. S. Masoud Judge