Mohamed Hassan v Walji Hassanali and Another Application

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA MISC. LAND APPLICATION NO. 202407241000017857 (Arising from Land Appeal No. 17859 of 2024 which is pending before this court) MOHAMED HASSAN@ MOHAMED HUSSEIN …………………….….. APPLICANT VERSUS 1. WALJI HASSANALI (NEXT FRIEND OF ZIDANI HASSANALI) 2. NGWANDU JOSEPH TENGA T/a …...………………… RESPONDENTS SHASHINHALE AUCTION MART & TRIBUNAL BROKERS. LTD RULING Date of Last Order 05.09.2024 Date of Ruling: 04.10.2024 MWAKAHESYA, J.: The applicant, Mohamed Hassan @ Mohamed Hussein, is seeking an order of this court to stay the execution of a 14 days eviction notice granted by the District Land and Housing Tribunal for Maswa at Maswa. The application made under section 68(c),(e); Order XXXIX rule 5(1), (3)(a)(b)(c)(d) and (4) of the Civil Procedure Code (the CPC) has been brought by way of chamber summons and is supported by the applicant’s affidavit. The respondents, Walji Hassanali (next friend of Zidani Hassanali) 1 and Ng’wandu Joseph Tenga t/a Shashinhale Auction Mart & Tribunal Brokers Ltd, resisting the application, have filed a joint counter affidavit. A brief background of this application is as follows: In the District Land and Housing Tribunal for Maswa District (the tribunal) the first respondent filed Land Application No. 52 of 2024 seeking to evict the applicant from a house located on Plot No. 1 Block “C” Nyalikungu minor settlement, Maswa District – Simiyu Region (the suit premises). In the process, allegedly under threat of the applicant demolishing the suit premises, through Misc. Land Application No. 52 of 2024 filed by the first respondent, the tribunal issued an ex parte eviction order against the applicant pending hearing and determination of Misc. Land Application No. 52 of 2024 inter partes. Aggrieved with the decision and with an eviction looming over his head the applicant has resorted to challenge the same before this court. At the hearing of the application the applicant was represented by Mr. Frank Samwel, learned advocate, while both respondents were represented by Mr. Steven Mhoja, learned advocate. Submitting in support of the application, Mr. Frank Samwel, was of the view that if the decision of the tribunal will be executed it will cause 2 hardship to the applicant as the applicant has nowhere else to live other than the suit premises. He submitted further that, the respondent, in his counter affidavit, has not refuted that the applicant was born and raised in the said house and he has nowhere else to live. The learned advocate stressed that this application has been brought through a certificate of extreme urgency. With regards to security for the due performance of the order, he was of the view that this court should abide to the decision of the Court of Appeal in Dr. Louis B. Shija v. Kellu Kamo Lucas, Civil Application No. 209/14 of 2024 (unreported), where the Court held that in matters of stay of execution, where it involves land, the applicant is supposed to file a commitment bond that the land in dispute will remain the same. He submitted further that, in the cited case the Court allowed the application on condition that a commitment bond should be filed within 30 days. It was his submission that the applicant is ready to file a commitment bond within a time that the court will order. 3 In reply, Mr. Mhoja submitted that, before a court can grant stay of execution it must be satisfied that: One, a substantial loss might occur to the applicant; and Two, security has been given by the applicant for the due performance of such decree. He elaborated that, these conditions were stated in the Court of Appeal decision of Jennifer Mkapesa Chuwa v Farsy Adinani Msuya, Civil Application No. 688/01 of 2023 (unreported). On the issue of substantial loss, the learned advocate submitted that, the applicant has failed to prove that he will suffer substantial loss, and further to that, what the applicant stated is not quantified in the eyes of the law. He urged the Court to dismiss the application. In rejoinder, Mr. Frank Samwel stressed that, the applicant losing his dwelling house will make him a vagabond and this will amount to substantial loss. He went further to state that the respondents have not refuted this contention. Having gone through the necessary documents in relation to this application as well as the rival submissions of the parties, it is now the duty of this court to determine the merit or otherwise of this application. 4 I find it prudent to reproduce the provisions of the law that the applicant has banked on in support of his application. Section 68 of the CPC provides: “68. In order to prevent the ends of justice from being defeated the court may, subject to any rules in that behalf- (a) N/A (b) N/A (c) grant a temporary injunction and in the case of disobedience commit the person guilty thereof as a civil prisoner and order that his property be attached and sold; (d) N/A (e) make such other interlocutory orders as may appear to the court to be just and convenient.” Order XXXIX rule 5 of the CPC provides: “5. -(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree but the Court may, for sufficient cause, order the stay of execution of such decree. (2) Where an application is made for stay of execution of an appealable decree before the expiration of time allowed for appealing therefrom, the court which 5 passed the decree may, on sufficient cause shown, order the execution to be stayed. (3) No order for stay of execution shall be made under sub-rule (2) unless the High Court or the court making it is satisfied that-(a) that substantial loss may result to the party applying for the stay of execution unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. (4) Notwithstanding anything contained in sub-rule (3), the court may make an ex parte order for stay of execution pending the hearing of the application.” [Emphasis added]. Meanwhile, a decree is defined in section 2 of the CPC as: “…the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final and it shall be deemed to include the rejection of a plaint and the determination of any question within section 38 or section 89, but shall not include- 6 (a) an adjudication from which an appeal lies as an appeal from an order; or (b) any order of a dismissal for default.” Undoubtedly, what was granted by the tribunal in Misc. Land Application No. 52 of 2024 was an order and not a decree, and the same was interim in nature and did not conclusively determine the rights between the applicant and the first respondent in neither the application itself nor Land Application No. 52 of 2024. It follows then that, the applicant cannot rely on Order XXXIX rule 5(3) as the same must be read in conjunction with sub-rule (2) as highlighted above, the latter sub-rule dealing specifically with decrees and not orders. Thus, the authorities cited by both counsels, that is Dr. Louis B. Shija v. Kellu Kamo Lucas (supra) and Jennifer Mkapesa Chuwa v. Farsy Adinani Msuya (supra) are inapplicable to this application. Likewise, section 68 of the CPC is equally inapplicable since it deals with temporary injunctions and other interlocutory orders during the pendency of a suit. To drive home the issue, an “order” has been defined in Section 3 of the CPC as: 7 “the formal expression of any decision of a civil court which is not a decree”. [Emphasis added]. Reverting to the nature of the order given by the tribunal, the same is rather odd and seems to defeat the whole purpose of an interim order, the applicant (respondent at the tribunal) is residing in the suit premises, if there was any likelihood of him demolishing or otherwise wasting the suit premises the tribunal could make any other order to stop him from doing the same. An ex parte order for eviction of the applicant seems, in actual sense, a determination of the application, at the tribunal, on merits, and it also seems to be a too heavy-handed approach from the learned tribunal chairperson. In light of the foregoing, this application seemingly misplaced is struck out. However, in the exercise of this court’s powers of revision under section 43(1)(b) of the Land Disputes Courts Act. I set aside the “Eviction Order” of the District Land and Housing Tribunal for Maswa at Maswa, given on 18.07.2024 in Misc. Land Application No. 52 of 2024 between Walji Hassanali (Next Friend of Zidani Hassanali) v. Mohamed Hassan @ Mohamed Hussein. The applicant is to refrain from demolishing or change 8 use of the suit premises pending the hearing and determination of Land Application No. 52 of 2024. No order as to costs. N.L. MWAKAHESYA JUDGE 04/10/2024 9