fortunatus nyigana vs idd ally and others 2021 tzhclandd 836 17 november 2021

IN lilt H1UI1 LUU KI Ul" IANIAN1A (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO.2 OF 2021 (Originating from Haia District L^nd and Housing Tribunal Application No. 10 of 2018 and Tabata Ward Tribunal complaint no. 78 of 2017) J ' FORTUNATOS NYIGANA...;....... it}* ’ ............ ...... APPLICANT VERSUS IDDY ALLY ....... .......... ................ .............. 1st RESPONDENT RICHARD KIHONGOSL.......... ....... 2nd RESPONDENT MWENYEKITI MTAA WA MTAMBANI (BRIGITA NCHIMBI) ...................... ...3rd RESPONDENT JUGDMENT 29th September 2021 & 17th November 2021 A. MSAFIRL J; This appeal originated from the Land Case No. 78 of 2017 at Tabata Ward Tribunal whereas the appellant, herein sued the respondents claiming that the 1st respondent had erected a wall on a public open space and the 2nd and 3rd respondents herein have authorized the construction. The matter was heard exparte against the respondents for failure to enter appearance and after the Ward Tribunal's efforts to order maintenance of status proved futile. The decision was in favor of the appellant herein whereas the 1st respondent was ordered to demolish his wall as well as any structure constructed on the open space. The appellant herein files his application for execution at the District Land and Housing Tribunal at Ilala, and upon the hearing of the execution, the Chairman exercised his revisional powers suo motu by nullifying the decision of the Ward Tribunal for want of right to be heard and order the matter to be retried. Aggrieved by the said decision appellant herein filed the current appeal with the following grounds; 1. That the learned Chairperson erred in law and fact to invoke her revisional powers and nullified the proceedings and decision of the Tabata Ward Tribunal on the ground that the respondents were condemned unheard. 2. That the learned Chairperson erred in law and fact to hold that the respondents were condemned unheard by the Tabata Ward Tribunal. He therefore prayed for this Court to set aside the decision of Ilala District Land and Housing Tribunal and Order the said Tribunal to proceed with execution of the decision of Tabata Ward Tribunal in accordance with the law, with costs. The appeal was heard by way of written submissions whereas the appellant was represented by Wilson Edward Ogunde, Advocate and the respondents were represented by Hussein Hashim Msekwa, Advocate. The submissions was filed as scheduled. Mr. Ogunde submitted on both grounds of appeal jointly that after the decision of the Ward Tribunal, the appellant filed application for execution at the District Land and Housing Tribunal for Ilala District which was basically an application for execution. He submitted that the respondents was summoned to show cause why execution should not be issued. He submitted that the respondents did not prefer an appeal while they were aware of the Ward Tribunal decision. To him the District Land and Housing Tribunal was sitting as an executing court, it was not sitting as an appellate or revisional court. He submitted that its mandate was to execute decree of the Ward Tribunal if the application made before it was in accordance with what was decided by the Ward Tribunal. He added that there was no appeal or revision before it against the proceedings, and decision of the Ward Tribunal. He added further that in other words, decision of the Ward Tribunal was not challenged by the respondents as already submitted above. It is his submission that there was ho memorandum of appeal and the 1st respondents statement that he was not served before the Ward Tribunal was not made under oath as such it was wrong of the Tribunal to hold that the respondent was condemned unheard. He submitted further that this was not the issue before the District Tribunal. He insisted that the respondent had the right to challenge decision of the Ward tribunal by filing appeal or revision and raise the issue of breach of a right to be heard. He argued that the District Land and Housing Tribunal exceeded its powers by dealing with an issue which was not before it. In view of the above arguments, he submitted that the first and second grounds of appeal be allowed. In reply Mr. Msekwa submitted each ground separately that on the first ground he stated that the appellant failed to provide any law or facts which District Land and Housing Tribunal contravened while exercising its powers. He submitted that it is paramount to state that right to be heard is a point of law and not factual issue. He added that the District Tribunal was right to invoke its revisional powers since the respondents werej unheard by Ward Tribunal. He cited the case of Travel Partner vs. Revocatus Mshane, Misc. Application Nd. 354/2020, High Court (Labour Division) at Dares salaam (unreported), where it was held that; "It is un- procedural for a court to givejudgement against defendant without giving him an opportunity ofright to be heard. Everyjudicial or quasi-judiciai tribunal must apply the fundamental principles of natural justice and natural justice will not allow a person to be jeopardized in his person or pocket without giving him an opportunity of appearing and putting forward his case." He also cited Regulation 23(5) of The Land Disputes Courts (The District Land and Housing Tribunal) Regulations, GN. No 174 of 2003 that it grants the Chairman of the Tribunal powers to make orders as may be appropriate after hearing of an objection raised by judgement debtor. He asked whether a revision is an appropriate order which the Chairman is allowed to make after execution hearing, and answered in affirmative. He cited section 36 (1) of The Courts (Land Disputes Settlement) Act, GN. NO.2 Of 2002 that it expressly vests District Tribunal with revisional jurisdiction after finding that the decision of the Ward Tribunal is in conflict with natural justice. He argued that section 36 does not strip off District Tribunal revisional jurisdiction in execution proceedings nor does it impose mandatory requirement to invoke such revisional powers when there is only appeal or revision application. It is his submission that GN. No. 174 of 2003 and GN. No. 2 of 2002 as mentioned hereinabove does not provide what kind of objections can be raised in execution hearing, however, such lacuna is filled by the Civil Procedure Code, CAP 33 R.E 2002 per section 38(2) which provides that any objection like limitation and jurisdiction can be raised. He submitted further that the grounds for revision can be raised by parties or the District Tribunal itself (suo motu) at any stage of the case soon after decision of Ward Tribunal is made. He added that the executing Tribunal in the case at hand suo motuexercised its revisional powers after hearing both parties on objection raised. He added further that such practice is supported by the case of Halais Pro-Chemic versus wella A.G (1995)TZCA 26,1996 TLR the Court of Appeal held the following; "The court may suo motu, embark on revision whether or not right of appeal exists or whether or not it has been exercised in the first place". On the second ground of appeal that the Learned Chairperson erred in law and facts to hold that respondents were unheard by Tabata Ward Tribunal, Mr. Msekwa submitted that there is no proof of service to the respondents as it was found by Executing Tribunal. He stated that, the appellant sued Iddy and not Iddy Ally as it is evidenced on the Ward Tribunal Judgment. He contended that Iddy is a common name therefore the Ward Tribunal ought to be specific which Iddy is being sued. He also challenged the quorum of the Ward Tribunal that it was not properly constituted. Also, on the cause of action, he challenged the jurisdiction of the Ward Tribunal and concluded that the appeal is devoid of substance and prayed for the Court to dismiss it with costs. In rejoinder, Mr. Ogunde submitted on the 1st and 3rd respondents having cited Regulation 23(5) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, GN No. 174 of 2003 which gives power to the Chairperson to give or mark-orders as may be appropriate after hearing objections. He submitted that the appropriate orders are those orders in relation to execution of the decision which is a subject of 5 execution. He submitted further that appropriate orders under Regulation 23(5) do not entail sitting as appellate or revisional court against the decision which has never been challenged. He argued that Regulation 23(5) as suggested by the 1st and 3rd respondents and section 36 of the Court's (Land Disputes Settlement) Act, G.N. No. 2 of 2002 did not confer jurisdiction on the Chairperson as the Ward Tribunal's decision was never appealed against. He submitted further that the issues raised by the respondents in their submission and also the one of not being served which was raised at the execution stage could only be dealt with in appeal or revision against decision of the Ward Tribunal. He then reiterated his submission in chief. Having heard the submissions from both parties, the only issue before me is whether the appeal has merit. Before I begin my determination, I have noted that Mr. Msekwa while submitting in reply, raised his own grounds of appeal such as the appellant sued the wrong party, the Ward Tribunal was not properly constituted, there was no cause of action, etc. These are new issues and were not pleaded. It should be noted that parties are bound by their pleadings (see the case of YARA Tanzania Limited vs. CharEes Aloyce Msemwa and 2 others; Commercial Case No.5 of 2015 High Court Commercial Division DSM (unreported)). The appellant is the one who moved the court, hence parties are supposed to confine themselves on the grounds of appeal pleaded. No any parties are supposed to come up with anything that was not pleaded in a petition or memorandum of appeal, unless on the point of preliminary objection. Ah L _ I have also noted from the outset that the issue before the District Tribunal was application for execution. As the requirement of law, the executing Tribunal issued the summons to the respondents to show cause why execution should not proceed. After having heard them, the Chairman was supposed to issue 14 days to the respondent to comply with the decree as provided under Regulation 23 (4) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, G.N No. 174 of 2003. Then under Regulation 23(4), the Chairman shall make an order of execution as s/he thinks fit after the lapse of those 14 days unless there is objection. Mr. Msekwa thought what the respondents stated in the District Tribunal that they were not served with summons in the Ward Tribunal was the objection as per Regulation 23(4) (supra) and that is why the District Tribunal came up with the decision of revising the decision of the Ward Tribunal, but that is not correct. On my side, I am of the view and findings that there was no objection before the District Tribunal but rather summoning of the judgment debtors. The respondents were called to show cause why execution should not be carried on. The District Tribunal as executing court was to determine whether there was sufficient cause not to grant execution before it. The act of the District Tribunal moving itself suo motu in execution at the time of composing Ruling and quashing the decision of the Ward Tribunal was unprocedural. After all the respondent did not file any objection or any application to stay execution. Had the District Tribunal seen that there was a need to revise the decision of the Ward Tribunal as they are empowered by Section 36 of the Land Disputes Act Cap 216 R. E 2019, it was supposed to open a fresh file in the name of Revision and give parties 7 right to be heard before making its decision. Therefore, the case at hand had three defects, One; the matter was for execution thus it was wrong for the Chairman to use his power suo motu to come with revision while composing the judgment the fact that was not in issue before him; Two, the matter being application for execution he was supposed to open distinct file for revision and allowed parties to address him on the said defect. Three, parties were not afforded right to be heard on the said defect. The act of Chairman of revising the decision of the Ward Tribunal resulted into confusion to the parties and thus they filed the current appeal as the application for execution was not determined on merits. Now due to the above stated confusion and in order to put the records straight, I hereby quash the decision of the District Tribunal on the matter at hand. The appellant is at liberty to file the fresh application for execution. If the respondents had any intention of contesting the said application they had and still have the room of applying for stay of execution as per Regulation 25 of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations and if that is not enough, there is also a room to challenge exparte judgment of the Ward Tribunal. Having said that I find the appeal to have merits and it is therefore upheld with no orders as to costs since the wrong was committed by the District Tribunal- Dated at Dar es Salaam this 17th day of November 2021. 9