20140912 TZHC Mtwara

" - IN THE HIGH COURT OF TANZANIA. [LAND DIVIS.ION]

ATMTWARA __ , - - MISC.CIVIL APPEALf:.NQ'..; 2-~;OF-201-2:: - ', : ,···,·. .~ [From Mtwara District Court. Application No. 4 of 2011] ASMA MOHAMED .............................. ~ ...... APPELLA

VERSUS DAMIANI NANNIMUKA & TWO OTHERS Date qf last Order - 26/8/2014 Date of Judgment- 12/9/2014 KIBELLA, J. The dispute between th~ ~~i~s has originated from Employment i', ·Yi;tfJt,i{~!Da o;se,::,N CY.· ~i-1 : of ::c:~;§;~¥'.'J~i;f?l'.rffJ~t~tt:l1'fpl0tyrrlenf~6f~fLl'~e';ffef~tHei'1 ;j5lathtlffi!,w~st~irjt~~;~~tt*ij\#%fi~-·; -. ' w. - LINUS MKAPA and the ~ efendant was one MAMCU. The Plaintiff LINUS ·-•l-'~-r,1- MKAPA emerged a IP1ner. The defendant MAMCU having lost·was ordered to honou said judgment by paying the Plaintiff accordingly. The record Jw, _indicates that the defendant MAMCU _ neglected to -- - -,,rr:, honour the ~e,sio~-·inAhe said Employment Cause, as a result the'':court - · ·.. _-_ -,· -,,•-··· · '~ - ·\ v order !'el' '~e attachment and ultimately sale of the defendant's [MAMCUJ s in execution of the decree. The record also shows that among the properties attached was the house that situates at Plot No.14 Block "GG" M-ajengo street Mtwara Municipality, Which !s the house iri ~l~pute. It ·appeared thc1t the house having been attached, was sold to the appellant herein ASMA MOHAMED. 1 --- - ... _._, __,.. , :, ..... _...~·...... ,.. .:....~-~-n.~.,;~..~~k--"~:e:d;~::i~~~~~-!L~..-~--,2:.:~.'.!~{j-~~;!;.~;;,.,~;:;;.{-l'rj~m~"M~·~~~1ir~~~tl?'!;:..?.pi..;Z~,-ti•~~•·-;:; ·•'t••~~l,'Jtfl~,i,;!ill'1:~J~·~; / T-he Respondent' Damiani Nannfmuka wh.o was _living

the_re}n refused to . vacate the suit hous~ claiming thatJhe same -was legally in the _property. · .- On 4/4/2011 an ··evicti~n order ·was::issued _by the Resident Magistrate inGharge -~/"t1twaf~:;~ ,req~ir1ng the j0dgment .Debtor MAM CU or any other ' . ·-··• . person living . therein.: to ·.·v~_~ate ~he suit house. Objecting to the sai~ ",., '' .., t(,,•; - . :::~::i:~t ~~::rvi~~::ro!:i•·t::::stf(:~~~~~:::an~::n;t~k~~~ Procedure Code [Cap.33 R.E 2002) praying for his prope~eleased from attachment and an ·order for p_ermanent injf~(dtsi' against the st appellant. He filed that application on 31 May, 2 ~~. . . .· 1£:J _ 0~ her. part the . app~llant who was ~ Defendant in the said apphcatIon through the service of Mr. M~~ learned advocate, raised a i· ·preliminary objection stating amon@t~il9er grounds, that the .applicant's _ [Respondent herein] applicatign~..,a\ overtaken by event. The said {.ffif::~Yt~~:" .:··:,. ·· 7~. ~- .v. ~~ t ~':::-:;.;..rr.:IJ"T•r-:·· !',.:, - :;~•-f;_,_v\~ •:•.:;• :·.t--:-1.{'~#s.i-1'.· ..;,...'',~ .,; · . .. Preliminary-•'o6jection"was 'ii~q~·'6y-:way-'"bf written submissi.QD,;>;xlrlowev§t,1,,-;r0,;:h·:.",'~!~::,c'i¾;;~/: in deciding on the sama•th~Resident Magistrate opted not to confine his · .. reasoning on it a n d ~ his view that the_ application was prematureiy filed as the isslt~f ownership of the _disputed house was not yet determined 0y, 0

cpurt of competent jurisdicti0n. He went further and . f) vacated tREl \Jcti;~ ''o~der · wheri it allowed the 1st Respondent Dami~ni · ' Nann&o continue residing in the suit house on the ground that neither ~party had a nght to evict the other the issue of ownership will be d~rmined by the Court of competent jurisdiction. . · The appellant -~SMA MOHAMED who was the first defendant in the said objection proceedings_wa.$ _aggrieved by the District Court findings, 2 .,, ... !'(-t'". ·: ...'-.. : :. r, !• .... .. ' . ...,,:.i .-- . ~ ~ ~ ··{:.. 1,.· ._ .. -- - -- ---- and through the service of.'Mr. Mtembwa.~~_arned Advo_~ate has filed this ,• . • • • I , _ appeal relying on the following.grounds:-.. •· 1. That the Honourable trial Magistr~~e erred in law and in fact by ,. . -. . ., ._:_ . :..~ . determining the niatt~~-on m~rit,s, before qe!~r-Wining the r_ai~ed . . "t,, .. ~:, ~ ·;• • ,.. . • -:- L preliminary objection... .

2. The honourabl'e trial magistra~~ erred in law and in f a i t ~ _ failure to realize that the issue of ownership of the d1~lted house could not be determined by the honorable ~ t such preliminary stage._ _ _ · _ §. · 3. 'fhe honourable tnal magistrate erred in la~~1lure to realize that the trial court having issued th~- e ~ order became functus officio and thus could y9J~ have ·jurisdiction· to invalidate or issue contradici.o#eP. · 4. The honourable trial magistr~.~"- e:ed in law and in fact by \-;,·:;,:· ..:,,,:• .. ""' failure to -_realize that ~n~r~kr allowing the 1st ~espondent to · ,, ••"V:'''"''stf&'in the disputet¢,~e was.with no leg~.L!?,?.sis:," . ,.1 . . ,,,•. ;_,_.,..,". ~: ~,.~ . -_ . ~ .-- . . . . - . At the comm~ment of the hearing of this appeal the appellant vla·s representeRy~r. Mtembwa learned advocate. The 1st respondent on his part v~.erson and unrepresented. ." . :·~ ~ g i n su_pport· of the appeal, Mr. Mtembwa submitted on th_e'first gr&-~ci that _the District Court ought to have f1 rst determined -the raised p~minary objection before going into the ment of the applic-ation as required by Order XIV rule 2 of the civil Procedure code. He supported his contention by citing the case of MSANGANG'ANDWA vs. CHIEF JAPHET WANZAGJ AND OTHERS [2006) TLR 351. 3 • ',..;...~,., •'. '•''• ,..:,.,,.,__ ;..'-:.~::•~•~:-::;.:>,.- -•.M~.:~~~~:, •.';',"~Ji!~...-~ •~ - -..

. . . =•·-·•~~;~·:-.' • . ._f!_ . .,_ On the second ground Mr. Mtembwa was of the .view that the trial Magistrate was not required to determine the issue ·of ownership, as the· same had already been delt by the trfal court When it issued an order of _--~-attachment and .,sale.iof the_ attachme:ht.'.prop·e,rty. ·-.He added that t~e . respondent ~as supposed at the very time wtien the property. was being·. attached to fil_e an objection for attach_ment under Order XXI rule W_~d · (2) of the C1v1I Procedure Code, and 1f the court could ha,ve be~~fie~ that the same was ni:>t a prop/'rlY of MAMCU, it could ~~~ased the property. But since the issue of attachment and sale wtJs already effected it could have been imp~~sible for the sarrie court to~~~therwise. . . ~y- . l) On the third ground Mr. Mtem~bwa ~nnitted that, the Resident .. , Magistrate ha~ing issued an eviction OF, e~1 was functus officio. The ·. same court could not have invalidat1~t;iat unless where it is proved that . . · there was fraud or misinformati~ \Citing the· case of SCHOLASTICA . , · · · .-·;;.,,-.;,,r;,,:;;,_:'.*BENEDIC '. TV ,. 5: 4 MA !~,-,~ · · ,, ·, 0 -r1N ,a,c:::~.#D/CT [19931 TLR ··;,, ...·.•u-~r-····'·:"w<:,,i-;,,,,·,,.•.,,...... ·w-.-~ ... · ,.:,..;,~,.. ......-• ..... •·; · ~~~1!... anu the tase· of·B/B1 ·.~i/J~+,.,·~I-;.-,_:;.• . KISOKO MERD~RD ~~1J1sTER FOR LAND [1983] TLR 250. H.e .. · :.,. viewed

that m this ,C-~~~th~ Resident Magistrate havmg vacated that order, It ,ec . erre d as h e Was·w:~ US Oll . --o . . u:· . ICIO. r~ , ,·. ,t\ . · .·. ~~~ on\he last ground, Mr. Mtembwa argued that the order of 1 . ·:\. the .t~ag.istrate allowing_ the 1s res~onded_ to reside in the "disputed_ ~ ~ a s with no legal basis, and the tnal. magistrate was not im~artial on this matter as 1t considered the matter basing on the social and economic status of the litigant contrary to what is provided under article 107(2) (a) of J) the Constitution of United Republic of Tanzania. He concluded by praying for his appeal to be ~llowe~:--~,- :- ~ ._. '~~~=}~"'.~---;, ~. __ .. _., -l- . ',( 4 . . .. . -- ,:_i,:,, -~ ... . ~~ On hi$'.>part,_ . . . . . ,.'. • :·:~·.-.. :...-·., treJ ;espondent b~ing. -~ Layman not knowl~dgeable· in st ~,~:-,·-..-.:·~.-, ;·.< ..i,)i'. _ . "· ..." ~ ., • ~ ' . .. . . law, had. :nothing _mater_ial: to res·pond to the appellant's submission. . He . . . . ;:.;~},,t\_·:_;·'·'..·,_;' ·.,_~-. :··>·('·.t,,~.-\.-·.~_... · . . , .7 • • simply .).~YJ}~.c:i :·?8i:s :(f~urf to cori-sider · his -doc_ument a reply to the .. J. ~--,·,•. 1• ·, f-'" < • ' •• ,•. • . me.moranduni "qf appeal filed in this appe.?I ,<;3.hd dismiss _t~e=-appeal. . ,~-:~ _ -,·.:./i,.,,,,: ..... , --,,.~_,:i-:,~_':_:t::~:,..~~::\C:\.~"1!.t_:/_)-, ·~ •,( 'ti._ .... ,,. . . . ._.. 1.? . L ~ .. . t,' . . . : :

. . . . . . . Havin~'!g~}e:f~:fi•y and with the eyes of caution gone _t!7~ough ~£_~r court's r~~6~~~{··:and the respective documents filed by th~ par1Je~\his court togeth~r. with the submission from Mr. Mtembwa 1ear~!d:Ocate, the question to be determined is whether the appell~~s merits._ On the first and second ground$ I partly agree with Mr Mter,nbwa that the trial Magistrate erred and grossly misdirected hims~not entertaining the preliminary objection which· was raised by ~~pellant a_nd whfo_h. Was c_rdered by the same court to _be a r g u ~ y of written submission .. In view of Order XIV rule 2 of the C1v1it•~..cedure Code, the tnal magistrate .• : had a duty to determine · mat!e~): law first before laboring o.n other __ ,,s,Hrs~a~:~:::~~:!~!~;:!;~~::'9:~Q::~;-t~:t:i::::a;::~:lst::t::::• ~t•½:i~ application to ha~~ t~prematur~ly fll~d on account that the ~art_ies were disputing on the_ 1s~ of ownership which was not ye!. deter~rnned by the · court of compQnt jurisdiGtion. If- the'.. fri~i'.;;;~~g1~trate would have · _,,,entertai~~a~plication on _merit.we would have expected for the said 'tf~ applicrafj;e.fl, to· be granted by_ releasing the attached property and setting a-s~'i?e sale, or reje~ted by dismissing the appiication without /J'uowing t~espondent to continue residin·g in the suit house. . - . _ The trial magistrate took· its own path in determining the·

said application. However, _ I am of the further view that such path had no legal _ ·backing. · He wrongly rejected to entertain· the a·pplicc1tion on the gr~und _·that the isi_u~ o(o~wner?hip was not yet resol~~d. ,.-~.·<•_,,:.._._ -~_::~~~;=r·.;.~~:~_.,-__ :.-:#·-:;:." ... ~~•.-> -=-;... :~_-;_;•·- ·. -- - bi the cb·u·rt ~f.compete~t . -_ - _· :: - - - .- - . . .. ~ 5 t.;'>- 1''.. . . ,;. ~. : .,,:'; · - .1 lt• j · .·· 1i'1' it ';~;~d~~:~,-~-~#t~r'f~~¥~;1:~·t,~ j~risdiction .. He ought to have noted that the said application was simply .brought unde<QrderXXI rule 57 (1) and (2) and.59 of th~ Civil Procedure Code objecting tli~ -attachment made in execution of the. decision in . EmP,loym~nic~us=e ·No·. 1'1';:6f1'997. It lfad ·juri~tlicti0°1l therefore to reiease. · 1 ~ .. the property frdm· attachment upon being satisfied that the property was wrongly attached:· It could have gone to that. extent after entertafl~~e Prelim_inary O~jection raised by _the appellant -He nei:her en~i~ the prelimmary ob1ect1on no_r entertained the application on.,l~ Both the Respondent's application and the appellant's prelim~'abjection were nev~r _touc~ed b~ t~e _trial. magistrate, that was c~,-ef'ely wrong in the ,f adm1rnstrat1on of 1ust1ce. • ~l. _· _ _ ,,,; -. This takes me to the third :nd fo~~ounds which will also be discussed generally. On these groq~, am in ful! agreem,:int with "Mr.

'~'~'- Mtembwa tha_t the trial Magistr~J·rred in vacating the eviction order hfrr."~~?=---.· issuea·"bt'the{~s~-frfr~~·~et>urt;•11~ftii,(::-if.::'i:i'llcwed the 1st res·p-0'r:ld~nf';t;o "'continu'e··\~;~i~~:~fi.t~~i1 0 ;j ~. res.iding in the suit house, ~hile the order of the same court attaching the property and. orderl~~ same to be sold are still intact. It should be .; noted that inval~ '1e_ evict.ion order without first releasing thf property: from attachffe~t-J:llnQ- .setting aside the sale 1s meaningless. This means . •- !fl': that _e~~'tt!e ·eviction order wm be v_acated still _the 1st _respondent Dam1~~nrnmuka would not be entitled to the property because there is " ~)¥er which declared him the legal owner of the property as ~ell as no· o~r which did set aside the attachment and sale of the property. 1 therefore subscribe to Mr. _Mtembwa argument that the order. of the trial st Magistrate to allow ttle 1 responden_t _to continue residing_ i~ the suit house ha~ no legal basis. _. ___ . :.· Having discussed as above, 1. have thought of the possib_ility of ordering a re-trial as ·prayed by Mr. Mtembwa, but I am of the opinion ·that doing so will caus~· unnecessary hardship to both parties for the following ·-·•_ .... ·.- • ·~ . . . . . . ~- r-.. •- . . . . . . :-. , .... - . .. reasons. First the a'ttachmenr of lhe ~aid . p'rop·erty and ultimately' sale-·of .. the same

has been effected way back in 2011, even before the said application objecting to that attachment was filed on 31/5/2011. ~~g that the house has already been sold to the third party wh~ is tb~ppellant. Under Order XX\ rule 57(1) and (2) of the Civil Procedur~e, the trial court has power to investigated the objection to attac~nt, but where there i~ such a delay as in this case the trial coµrt~~not be in good position to investigate on the matter. The prov~~der XX\ rule 57(1) is to that effect, ·and it provides:- . ~--- "Provided that no such i~ve's?tg,ation s_~all b.e made · ....:. where the court consider,t~?-ttne claim or objection was designed by ~ · ··'lfnnecessarily delayed . [EnJp_hasis supplieg] . - .. _ .. . .. . .. . . . . , . .-· --· ·,·:.; ,.,.'. -"' . . .. r::..:<;:.•·. -.. . .; -~<.::/• :>·.'.::.;:.:?/:·:;_:;~)·,::;:':;·· , Since, the order J/fr ~tabhment and ..sale are still intact 'it is the 1st respondent Who is t~G}ig party in the whole circumstances of the case, st the on\~ good ~~hat the 1 respondent may wish to take is provided under Order{~)(l 62 which reads:- .. AwJere ~ claim or an objection is preferred the party r ~ against whom an order is made may insUtute a suit .... ~\:.,I to establish the right which he claims to . the , , property in dispute ... " [Emphasis supplied] · In our case tho_ugh it is the appellant ASMA MOHAMED who brought this appeal,

the decision of the trial Magistrate was by and large in favour of st the appellant. If the 1 respondent's application would have been su-~~~-s~ful ~e -.wou-tif hav~ ·~xp~;t~d. for· the·· safd p·roperty· t6-' be ·released 7 •.J..,.._ •· -+n -~ ., tr:~· ~&<,, ·,~~~~...:-: from attachment, and an order setting aside that sale, but since the said • • . .-.. • . ' ,' ···., • t t orders are still intact, the 1s respondent has an option to fil~ a separate suit as requi,red b~ Order XXI rule 62 and proye his ownership to the property in tjblestion. :,$ucti~e·pa-r§lte suit"·TT-l'ay bet-•filed~ before' a court ,of competen"t. , .... ...;·~ . .. .... ~ jurisdictio.~:- : : .• ., · . 0 Lastly, it should -also be noted that in principle an objector r.e,~!s two options. First is to object for attachment and upon b~i~\~ed to file a separate suit as I have indicated above. The secon~ion is that the objector or may by pass·the requirement of filing a~~tion proceedings and file a separate · suit before a court of ~~tent jurisdiction and establish ownership of the prop·erty, see th~se of OMOKE OLOO VS. WEREMA MAJ/RA [1983] TLR 144 [H~era J, W~;re it was ~elcf :- . .. _ "(r) Order XXI rr.57, 58, 59, $:~1lJao not provide that the only way 0l,1lf;to a party objecting to g\H?/' ::: oiJ?'.:. \(fi} ··£'\l~16;~ta~~?J1ti?~ii-i~g{ii~tt~~~·-tst\W:,jt~;c,o<\ii?iJI\i/.i-&~\'.?;'i, · render a sy~sequent s-uit

on the same dispute res judic~"ftld so a party can decide to _ bypasJ; ~bjection proceedings and resort to &«~~is a sut3/ecover his wrongly seized prope_rty. supplied]· (t . · ~~ the above authority in mind,· in our instant case, since the 1 st Rei~~ent's · application objecting the seizure. of his prop~rty was not . · l e~~ained on merit, the tri;I court's ·order attaching the property and . ordering the same to be sold together with the said eviction order are still . intact. But that will be subject to the outcome of the suit that wiil be filed. And therefore if the 1st Respondent_ wish~s to recover his allegedly w·rongiy_ · __ 8 ',· ~""-·•. ;.· ·J.. ' ~ . _.· .':~.:'. ·'' seized property he should resort to a suit before a • court of competent jLirisdictio~ and establish his ownership of that property. .. • .,.. ,· 1 • ... ~' •• • _, . - .. • .• • . To the extent above; thil={appcial is'here6y alfow~cf with no' order as tp costs. ' . ,•, ~-· ·.-,:- • ,.~,._- r ~ • t> . . _.. • - (f 9 - +- - ~ - ~. - ~::;2!!,~~ffllii . .