abubakari zuberi 13 others vs ashura mahamed sengondo 6 others 2022 tzhclandd 12705 13 december 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND APPLICATION NO. 531 OF 2022 ABUBAKARI ZUBERI................................................................................. 1STAPPLICANT ARABI SHAIBU.......................................................................................... 2ndAPPLICANT ATHUMANI MOHAMED MTAHUKA............................................................ 3rdAPPLICANT DEO BRUSHI.............................................................................................. 4thAPPLICANT JANUARY KAGOSHA RENATUSI................................................................5thAPPLICANT JOBLESS SADICK SAGARA........................................................................ 6thAPPLICANT JUMANNE NASORO CHUMA...................................................................... 7thAPPLICANT KHALIDI JUMA MSHIMBE........................................................................ 8thAPPLICANT RIZIKI RASHIDI........................................................................................ 9™APPLICANT SAIDI SALUMU........................................................................................ 10™APPLICANT SALUMU MOHAMED MTAKA.................................................................... 11™APPLICANT SEBASTIAN MICHAEL MAGUTA.............................................................. 12™APPLICANT VEDASTO EVARIST NGARABA................................................................. 13™APPLICANT VERLUSJOHN MVEDA............................................................................. 14™APPLICANT

VERSUS ASHURA MOHAMED SENG'ONDO............................................................. 1stRESPONDENT RALHAEL MROPE.......................................................................................2ndRESPONDENT HASSAN SAID.................................................................. 3rd RESPONDENT WEMA ISSA.................................................................................................4™RESPONDENT^ 1 HAMIS MZEE..................................................................5™ RESPONDENT SALUM IDD..................................................................... 6th RESPONDENT R. Y. SWAI T/A KISHE AUCTION MART LIMITED AND COURT BROKER..................................... 7th RESPONDENT Date of last order: 06/12/2022 Date of ruling: 13/12/2022

RULING A. MSAFIRI, J. On 6th September 2022 the above named applicants lodged in Court this application under Sections 68 (e) and 95 and Order XXI Rule 57 (1) of the Civil Procedure Code [CAP 33 R.E 2019], (the CPC) seeking for the following reliefs namely; (a) That the Honourable Court be pleased to Investigate the applicants' claims over the ownership of the pieces of the iand/suit premises, which are located at Mtaa Kigezi Chin! popularly known as "Miguu Ishirini Area"Buyuni WardHaia Municipality in Dar es Salaam in which the same belong to them Hamis Mzee and Salum Idd ordering the eviction of the judgment debtors, the 2nd, 3d, 4h, Sh and ffh respondents in this application from the landed property of the comprised in un-surveyed land at Kigezi Ward in I/a/a 2 District, Dar es Salaam which is occupied by the applicants herein, who are the third parties, who were not parties in the original suit/main suit in Land Case No. 171 of 2014, Ashura MohamedSeng'ondo versus Raphael Mrope Hassan Said, Wema Issa, Hamis Mzee and Saium Idd be raised and be vacated. (b) Maintenance of status quo ante. (c) Costs. (d) Any other remedies as the Honourable Court may deem fit andjust to grant. The application has been taken at the instance of the applicants and supported by the affidavits sworn/affirmed by each of applicants. The application was disposed of orally. The applicants had the

services of Mr. Hassan Kilule, learned advocate where the 1st and 7th respondents had the services of Mr. Aron Lesindamu learned advocate. On the other hand, the 2nd-6th respondents were absent despite being duly served, hence an exparte order was entered against them. A . 3 Submitting on the application Mr. Kilule having adopted the affidavit by the applicants prayed the Court to grant the application as the applicants have proved interest over the land in dispute. To fortify his stance the learned advocate cited the decision of this Court in the case of Dorice Keneth Rwakatare v Nurdin Abdallah Mushi & 5 others Misc. Application No. 300 of 2019 (unreported) which was quoted with approval in another decision of this Court in the case of Equity Bank (T) Ltd v Prosper Rweyendera & others Misc. Land Case Application No. 356 of 2021. It was submitted further that looking at the contents of each affidavit of the respective applicant and copies of sale agreements attached, they refer to sale on plots, however, the applicants have built the houses on the said plots and are now residing thereon. Hence the applicants have proved interest and possession on the attached properties. On further submission by the learned advocate for the applicants, the counsel stated that the fact that the properties have been attached is proved under annexure A-2 of each of the affidavits of the

applicants in which a fourteen days' notice has been issued. It was claimed that the said notice emanated from Land Case No. 171 of 2014 in which the applicants were 4 parties in that case. It was submitted that the 1st respondent claimed that she purchased the suit property sometimes in 25/12/1999 from one Ali Salum Gulu and she purchased the said property earlier than the applicants. However, the 1st respondent's sale agreement was rejected and was not admitted in Land Case No. 171 of 2014. Hence the learned advocate prayed for the court to grant the application. On reply Mr. Lesindamu having adopted the counter affidavit contended that the 1st respondent purchased the suit property on 5/12/1999 earlier than the dates which the applicants claims to have started occupying the disputed land. It was submitted the applicants claimed to have purchased the pieces of land which are within the land of the 1st respondent on 9/5/2016 except for the 9th and 10th applicants who claimed that they purchased the land on 27/10/2013 while the 6th applicant claimed to have purchased his respective piece of land on 29/12/2018. It was submitted that at the time the applicants purchased their pieces of land there was an order for injunction by the District Land and Housing Tribunal which was fixed on the suit property in order to restrain other buyers from buying the suit property. On further

submission Mr. Lesindamu contended that the applicants have not described the size of their land in. 5 order to give chance for the investigating court to know the size of the claimed land. Mr. Lesindamu submitted further that there is a difference in terms of dates between the affidavit as well as the sale agreement, for instance the 2nd applicant's sale agreement shows that she purchased her piece of land on 13/3/2012 but it contradicts with the dates on her affidavit. The same contradiction is for the 3rd applicant. The learned advocate referred the decision of this Court in Isaya Alois Revert & 4 others v Ashura Mohamed Seng'ondo & 6 others Misc. Land Application No. 327 of 2022 in which it was held that the burden of proving interest on the objection proceedings is on the objector. In the current case the applicants have failed to prove their interest, claimed Mr. Lesindamu. On rejoinder, Mr. Kilule reiterated his submission in chief. He however submitted that truly the burden of proof lies with the objector but the case of Isaya Alois Revert & 4 others v Ashura Moahmed Seng'ondo & 6 others (supra) is distinguishable with the circumstances of the present case because in the referred case the decision was on interest and not possession. On the issue of the size of each piece of land, he argued that it is not true 6 that the size of each piece of land has not been stated

because the sale agreements described the size of each respective piece of land. On the issue of injunction by the District Land and Housing Tribunal, the counsel contended that the order was issued by that Tribunal which had no jurisdiction over the matter. Having gone through the parties' submission rival and in support of the application, the sole issue calling for my determination is whether the application has merits. Before going to the merits or otherwise of the application at hand a brief background is apposite. It is not in dispute that there was Land Case No. 171 of 2014 which was lodged in this Court by the 1st respondent who was the plaintiff therein against the 2nd, 3rd, 4th, 5th and 6th respondents who were the defendants therein. The 1st respondent was claiming for ownership of 17 hectares of land situated at Kigezi Ward in Ilala in Dar es Salaam. After hearing the parties this Court delivered its judgment in favour of the 1st respondent as she was declared a lawful owner of the land in dispute. Similarly, the 1st respondent was awarded a sum of Tshs. 20 million as general damages to be paid jointly and severally by the 2nd -6th respondents. 7 From the record it is not in dispute that the applicants were not parties to the Land Case No. 171 of 2014. Each of the applicant alleged in their respective affidavits that they were issued a notice of eviction from

Execution No. 32 of 2020 in which the 7th respondent was appointed to carry out execution hence the applicants have preferred the present application. The application has been preferred under Rule 57(1) of Order XXI of the CPC which provides as follows: "57(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector and in all other respects, as if he was a party to the suit: Provided that no such investigation shall be made where the court considers that the claim or objection was designedly or unnecessarily delayed." A/1 { 8 The main ground for objection proceedings under Rule 57(1) of Order XXI cited above, is that the property attached in execution of a decree is not liable to such attachment. The general principle underlying attachment of properties and sale in execution of decree as provided for under Section 48(1) of the CPC are only those belonging to the judgment debtor over which he has a disposing power. Section 48(1) stipulates as follows: "48.(1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, banknotes,

cheque, bills of exchange, promissory notes, Government securities, bonds or other securities formoney debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be ! L 9 held in the name of the judgment debtor or by another person in trust for him or on his behalf [Emphasis added] It is a legal requirement under Rule 58 of Order XXI of the CPC that a claimant or objector "must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached. "In terms of Rule 59 of Order XXI of the CPC, if the Court upon investigation, is satisfied that such property when attached was not in the possession of the judgment debtor, the Court has an option either to release of property wholly or to such extent as it thinks fit from attachment. The above requirement was underscored in the decision of Sosthenes Bruno & another v Flora Shauri Civil Appeal No. 249 of 2020 Court of Appeal of Tanzania at Dar es Salaam (unreported) where it was observed that; The next rule which is Rule 58 of that Order, provides that after preferring the objection before the court, the applicant has a duty to prove either of the two facts

in respect of the property subject of attachment. One is his Aflh io interest in the property or alternatively, he must prove that at the time of attachment he was in possession of the property attached. In the instant application each of the applicant claimed to have purchased his/her respective piece of land from the former occupiers. For instance, the 1st, 2nd, 3rd, 4th, 5th, 7th, 8th, 11th, 12th, 13th and 14th applicants claimed to have purchased their pieces of land on 9/5/2016. The 6th applicant claimed to have purchased his piece of land on 29th December 2018 while the 10th applicant claimed to have purchased his respective piece of land on 27th October 2013. Now looking at the sale agreements attached to each of the affidavit with exception to the 10th applicant, the sale was done during the pendency of Land Case No. 171 of 2014. The former sellers who were occupiers were not joined in the instant application and none of sellers who disposed the respective piece of land has filed an affidavit to confirm that they truly sold the purported pieces of land to the applicants. Ll L , ii Similarly, it has not be shown on how the former occupiers acquired their respective pieces of land. I could not even see the evidence of ownership by the previous occupiers. I am of the settled view that each of the applicant was required to explain how the seller got the piece of land and

the evidence of ownership should have been produced. Lack of such evidence or explanation on how the sellers got their respective pieces of land makes the court believe that the objectors have failed to prove their interest over the disputed land. On further observation the applicants claimed that the sale was witnessed by the ten-cell leader of Kigezi Chini Ward but there is no any affidavit from the area local government leader to establish that they witnessed and authorized the sale of the disputed land to the applicants. I have keenly gone through each of the applicant's affidavit whereby each of the applicants is claiming to have constructed a house on his/her respective piece of land. But the affidavits are silent as to whether at the time of attachment the applicants who are objectors were in possession of the land in dispute. o ■ 12 It is for the foregoing reasons I hold that the application lacks merits and it is hereby dismissed with costs. It is so ordered. 13/12/2022 13