awadhi ibrahim msuya vs jamila salehe kiluwasha another 2022 tzhclandd 711 25 july 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 279 OF 2021 (Originating from Kinondoni District Land and Housing Tribunal in Land Application No.217 of 2021) AWADHl IBRAHIM MSUYA (Administrator of Estate of the Late Ibrahim Swalehe @ Ibrahim Swalehe Msuya) ...........................APPELLANT VERSUS JAMILA SALEHE KILUWASHA (Administratixofthe Estate of the Late Mwanaidi Msuya @ Mwanaidi Msuya) 1®^ RESPONDENT EUDIA SAMWEL BANGU 2i^° RESPONDENT Date of Last Order; 18.07.2022 Date of Judgment; 25.07.2022 JUDGMENT V.L. MAKANI.J This Is an appeal by AWADHl IBRAHIM MSUYA. He Is appealing against the decision of Kinondoni District Land and Housing Tribunal (the Tribunal) In Land Application No. 217 of 2021 (Hon. M.L. Rugarabamu, Chairman). The appellant filed Land Application No.217 of 2021 praying for, among others, an order to nullify the sale by the 1^ respondent to the 2^^ respondent house No.KAW/ML/404(the suit house)allegedly claiming that It is part of the estate of the late Ibrahim Swalehe. The application was dismissed for being functus officio. Being dissatisfied with the decision, the appellant has preferred this appeal under the following ground of appeal: 'That, the learned Magistrate (sic!) misdirected himseif on the ambit and appiication offunctus officio doctrine vis a vis the tribunals power on Land Appiication No.217 of2021 and hence reached at unjust decision." The appellant prayed for the appeal to be allowed and the decision of the Tribunal be quashed and set aside. The matter proceeded orally. The appellant and the 1^' respondent appeared In person while the 2"'' respondent enjoyed the services of Ms. Juliana Swai. The appellant said he is objecting to the decision of the Tribunal because he was not involved while he was the administrator of the estate of the late Ibrahim Salehe Msuya. He said he has the documents In relation to the suit house but was not Informed about the case at the Tribunal. That he knew that he was still under the power as an administrator and the ownership of the suit house. He prayed for the appeal to be allowed. The respondent prayed to adopt the Reply to the Memorandum of Appeal. She said she was just appointed as administratix of the estate of the late Mwanaldl Msuya, but she Insisted for the justice to be done. She prayed for the court to look Into the matter. Ms. Swal for the 2"'' respondent said that the decision of the Tribunal was correct because Land Application No.217 of 2021 had already been decided. That there was land application No.443 of 2018 at the Tribunal between EUDIA S. BANGU vs. SAUD MSUYA, KASSIMU MSUYA, SUBIf^ MSUYA & MKOMBOZI KASIMU MSUYA. That the dispute In this matter was the ownership of Hoyse No.KAW/ML/404 which Is at Mlalakuwa area Dar es Salaam. That the Tribunal's decision of 18/03/2010 was In favour of the 2"'' respondent herein and all the respondents were ordered to vacate the suit house Immediately. She said there was no appeal as a result an Application for Execution followed (Application No.76/2018). Since the respondent refused to vacate, Yono Auction Mart were appointed to evict respondents. She said the appellant In Misc. Land Application No. 279 of 2019 arising from Land Application No. 443 of 2008 and Misc. Land Application No. 776 of 2018 filed an application objecting to vacate the suit house and prayed further for the court to Investigate the execution as he was Interested In the suit house. The said application was by the appellant as an objector and the 2"'' respondent SAUDA MSUYA, KASSIMU MSUYA, SUBIRA MSUYA MKOMBOZIIBRAHIMU MSUAYA and YONO AUCTION MART. She said the application was struck out on 23/01/2020. According to Ms. Swal the appellant decided to file Misc. Application No.217 of 2021 which was concluded on preliminary objection that the court Is functus offido. That In the sequence, the appellant has already exercised his rights by bringing objections (Misc. Land Application No. 279 of 2019). She said the appellant had another remedy of revision as he was not party to the former suit but since he Is out of time It Is Improper to proceed without seeking extension of time. Ms. Swal relied on the case of Malik Hassan Suleiman vs SMZ, Criminal Appeal No.77 of 2004(2005)TLR 236 In which she said the court becomes functus offido making orders finally disposing off the case. She said the decision by the Tribunal has not been appealed against and that the decision In Land Application No.443 of 2008 Is still valid and It was known to everyone Including the appellant. She prayed for the appeal to be dismissed with costs. In rejoinder, the appellant reiterated his main submission. Having heard the parties the main issue for consideration is whether this appeai has merit. The records are clear that Initially the 2"'^ respondent herein instituted Land Appiication No.443 of 2008. The appiication was against SAUDA MSUYA, KASSIM MSUYA SUBIRA MSUYA and MKOMBOZI IBRAHIM MSUYA. The 2"'' respondent prayed for eviction order against the respondents and the Tribunal granted the said order. The 2""^ respondent then successfuily appiied for execution vide Appiication No.776 of 2018. From that juncture, the appellant herein came in as an objector though unsuccessful vide Misc. Civii Appiication No.279 of 2019. He then appiied for nuiiification of the sale on the ground of having interest in the said suit house, this was through Appiication No.217 of 2021. In the said Application No.217 of 2021, the Tribunal dismissed the appiication based on a preliminary objection that the matter was functus offido, and that is the basis of the appeai at hand. Now, was the matter at the Tribunal functus official To determine whether or not the matter was functus officio, we first have to get the meaning of the term functus officio. In the case of Cipex Company Limited vs Tanzania Investment Bank (TIB), Civii Appeai No.137 of 2018 (HC-DSM District Registry) (unreported) the court was faced with a similar situation. My sister, Hon. Masabo, J quoted the case of Maiik Hassan Suieiman vs. SMZ[2005]TLR 236 wherein it was stated that: court becomesfunctus offido when it disposes a case by a verdict ofguiity or by passing a sentence or making orders fmaiiy disposing ofthe case" The court further cited the case of Kamundi vs. R(1973) EA 540 in which the court stated that: ".4 further question arises, when does the magistrate's court become functus officio and we agree with the reasoning in the Manchester City Recorder case that this case oniy be when the courtdisposes ofa case by verdict ofnot guiity or of by-passing sentence or making some orders fmaiiv disoosina ofthe case" It is apparent from the records that the respondent herein in Land Application No.443 of 2008 was praying for among others, the eviction order and the appellant herein was not among the respondents. In the judgment of the Tribunal in the last paragraph the 2"'' respondent herein was declared the lawful owner of the suit house namely House No. i<AW/ML/404 Miaiakuwa which has six rooms. So, in this case as said by Ms. Swai the issue of ownership was determined, and the respondents were ordered to vacate the said house. The respondents were aiso condemned to costs. In appiication No.217 of 2021, the appeiiant herein was praying for; (a) Nullification of the sale between the and the 2P'' respondents herein. (b) The Tribunal to declare that the Z"' respondent continued occupation of the land In dispute is unlawful. (c) The respondent be ordered to demolish all buildings and structures developed thereon on her own costs. (d) The Z''respondentbe ordered to vacate from the suit premisesandleave vacantpossession to the appellant herein. (e) The respondents be ordered to pay specific and general damages. (f) Costs ofthe suit and any other reliefs. The reiiefs above, cieariy depict that the appeiiant herein was claiming for ownership of the suit house. The two first prayers cieariy shows that the complaint by the appeiiant herein was that the ownership of the suit house by the 2"'' respondent which was facilitated by the sale agreement was unlawful. That is why he prayed for nullification of the sale. Now, since there was already a decision on the ownership * • • of the suit house by the Tribunal in Land Application No. 443 of 2008, it was therefore correct for the Tribunal in Land Application 217 of 2021 to declare itself functus offido as the issue of ownership was conclusively determined by the same Tribunal in Land Application No. 443 of 2008 (see the case of Cipex Company Limited (supra). In other words, if the Tribunal had decided on the ownership of the suit house in Land Application No. 217 of 2021, then there would have been two co-existing decisions on ownership of the said suit house. In the result, I find no fault in the decision of the Tribunal. Subsequently the appeal is hereby dismissed with costs for want of merit. It is so ordered, o s V.L. MAK/fNI JUDGE 25/07/2022 OfviS^C