CHARLES PAULO SHIMO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SHINYANGA SUB REGISTRY

AT SHINYANGA LAND APPEAL NO. 11218 OF 2024 (Originating from Land application No. 43 of 2022 at Shinyanga District Land and Housing Tribunal) CHARLES PAULO SHIMO………………………………....1ST APPELLANT EMMANUEL MASHILINGI…………………………………2ND APPELLANT EDWARD MASHILINGI……………………………………3RD APPELLANT NGWASHI MAKOYE …………………………….…….……4TH APPELLANT PALULA MANILIZI………………………………………….5TH APPELLANT ELIAS KAYILA………………………………………………..6TH APPELLANT JUMA SHIJA……………………………………………..…...7TH APPELLANT KANGWA LIFA………………………………………….……8TH APPELLANT VEIKO………………………………………………………….9TH APPELLANT

VERSUS ISANZULE HOBELA …………..……………………………..RESPONDENT

JUDGMENT 13th & 23rd August, 2024 MASSAM, J.: Respondent filed this Land Application No. 43 of 2022, before the District Land and Housing Tribunal of Shinyanga at Shinyanga sued the appellants on the plot of land situated at Mwajilyenge hamlet, Ilobashi village at Masengwa ward estimated to be 30 acres. Respondent added that the said plot of land belonged to his late father one Hobera Machiya Tungu which estimated to be 60 acres which he acquired it in 1957 after bought it from 1 Lushinanjige Ngw’ikomanja after exchanging it with five goats. He said that the said 30 acres situated at Ikoma Itilima ward while another 30 acres situated at Mwajilenge hamlet Ilobashi village Masengwa Ward. He said that he used that land undisturbed until on 1982 when one Paulo Shimo started to trespass the said land which situated at Ikoma village, Itilima ward but the remaining land with had 30 acres remained undisturbed. He said that on 2001 he filed a case against Paulo Shimo at Samuye Primary Court where he won the case, Also in the appeal No 64/2002 he won again and the matter went to the High court and where he won the case but he decided to handover the said 30 acres to Paulo Shimo to use it until on 2018 the son of Paulo Shimo together with the other appellants invaded to his 30 acres and starting to use and sell it to 4th to 9th appellants by using the same judgment of High Court Tabora

which he won the case. The trial tribunal heard the matter inter parties and held in favour of the respondent herein above by declaring that the said land belonged to him as the administrator of the estate of deceased one Hobera Machiya, the appellants hence they were strictly forbidden to enter into the respondent’s land. Being aggrieved by the decision of the trial tribunal, the appellants herein appealed to this court with three grounds of appeal namely, First That, the Trial Tribunal erred in law and facts in hearing the application which is res judicata, Second, the Trial Tribunal erred in law and facts in 2 failing to adhere to guiding principles when visiting the locus in quo.Third ,the Tribunal erred in law and in fact for failure to consider and analyse the evidence tendered before him which proves on balance of probability the suit land to be the property of the late father of the first appellant one Paulo shimo. When the matter was called the for hearing, the appellants were represented by Emanuel Sululu learned counsel while the respondent was represented by Mr. Tully the Learned counsel. Before urging this appeal on perusal of the decision and decree given, this court found out that there was difference between the decision and the decree and this court finds out that the said error is fatal so it invited parties to address on it. Mr. Sululu advocate submitted that

it is trite law that the decision and decree must be the same as the decree comes from the decision. But in this case the decision and decree are different as the decision said that the suit land belonged to the appellant while the decree said that the suit land belonged to the respondent. According to that the execution of this case became difficult to be executed. So, he prays to this court to nullify the proceedings and set aside the judgment and orders and the party who still interested with this case will file it in the competent court. He cemented his 3 submission with the case of Anthony Josephat Kabula vs. Hamisi Maganga, Civil Appeal No. 150/2020 CAT Kigoma, the situation like that happened and the court nullified the proceedings and set aside orders and judgment. In his reply Mr. Tully advocate for respondent conceded that the decision and decree are different and he added that the said error cannot cause the failure of justice to nullify the proceedings but the proper way is to remit the said file to the trial tribunal in order for the decree and decision to be corrected and the appeal to proceed on merit. Again he said that in mentioned case, Mr. Sululu did not give us the principle used in order to see if the same can be applied in this case In his rejoinder, the appellant counsel submitted that, the said errors are fatal which goes to the root of the case so, it

needs to be struck out. This court has carefully considered the conceding arguments of both parties and get satisfied that there was a gross mishandling of this case by the trial court as the decision and decree granted was different. In the circumstances, this court is of the considered view that the trial court did not properly direct its mind to abide with the procedures 4 required when giving the decision and decree as we all knows that decree emanates from the decision so the same must be the same. Coming to this case the decision and decree are different because in the decision it said that appellant won the case and declare him as a legal owner of the suit land while decree said that the respondent was the one who won the case and was declared a legal owner of the said suit land. According to that this court is in support with the submission from Mr. Sululu that having two decisions in one case is fatal which cause the execution to became difficult. This court after been heard the conceding argument from both parties asked itself what is the consequences of filing appeal without a valid decree? In the side of Mr. Tully advocate prayed to this court that to remit this case to the lower court in order the said decision and decree to be corrected and the same to be returned to be heard on merit while Mr. Sululu advocate informed this court that this appeal required to be

strike out. This court finds some answers in the case of Tatu Manyoka vs Charles Kaberuka, in Civil Appeal No. 27/2004 CAT Mwanza which held that an incurably defective decree resulting in an incompetent appeal which renders the appeal to be struck out. Also in the case of The Managing Director Majira Newspaper and Business Printers Ltd vs. Majura Magafu and 5 Peter Swai Civil Appeal No. 90 of 2003 CAT DSM it was held that the consequences of filing an appeal without a valid decree make an appeal incompetent for being filed without a valid decree and its remedy is to be struck out. According to that this court is in support of the submission from Mr. Sululu that this appeal is required to be struck out for being incompetent as the decree is not valid as it is different from the given decision while the decree and decision required to be the same. Subsequently, since this appeal is incompetent for want of valid decree this court is hereby struck out this appeal. In regard of the circumstances of this case. No order to the costs. It is so ordered. DATED at SHINYANGA this 23rd AUGUST, 2024. R. B. Massam Judge 6