Judgment CRDBPLC AND ANOTHER V DICKSON BYARUBAGA BIGILA CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MWANZA AT MWANZA MISC. LAND APPEAL NO. 4074 OF 2024 (Arising from the Ruling and Extract Order of the District Land and Housing Tribunal for Mwanza at Mwanza in Misc. Application No. 276 of 2023 delivered on 17th January, 2024. Arising from the Consent judgment and Decree of District Land and Housing Tribunal for Mwanza at Mwanza in Land Application 323 of 2019 entered on 18th December, 2019). CRDB BANK PLC ………………………………………………………….. 1ST APPELLANT MEM AUCTION M ARTI ………………………………………………….. 2ND APPELLANT VERSUS DICKSON BYARUGABA BIGILA …………………….………………….… RESPONDENT JUDGMENT 30th July & 6th August 2024 CHUMA, J. The basis of the conflict between the parties before the District Land and Housing Tribunal for Mwanza (the DLHT/tribunal) and eventually before this Court is the interpretation or rather compliance with the terms agreed in the deed of settlement reached and recorded as a decree on 10 December 2019. Initially, the respondent filed before the tribunal Land Application No. 323 of 2019 seeking among other reliefs, a declaration that payment of the outstanding loan was in progress hence the 1st appellant's intention to sell the mortgaged properties was unlawful. The respondent therefore asked the 1 tribunal to restrain the appellants from auctioning the suit premises. However, before the hearing, the parties agreed to settle the matter out of court but also to have had the deed of settlement adopted and passed as a decree pursuant to Order XXIII rules 3 of the Civil Procedure Code, Cap. 33 R.E 2019 (the CPC). In the consent judgment, parties agreed in the following manner: 1. That, the applicant is the lawful owner of the disputed properties. 2. The applicant undertakes to pay the whole amount of the loan of TZS 42,917,686.00 which is indebted to the 1st respondent based on monthly installments, within sixty (60) months. 3. That the applicant shall pay an installment of TZS 1,066, 000.00 every month and the first installment shall be paid before or on 30th December 2019. 4. That the aforesaid mode of payment based on (monthly installments) shall be made by the Applicant until the whole amount of loan debt owed by the Applicant to the 1st respondent is wholly discharged on or before November 2023. 5. That, the properties in dispute [Plot No. 310 Block ‘M’ Pasiansi Mwanza and Plot No. 165 Block 7 Nyamhongolo, Mwanza] shall remain as collaterals and the same shall be considered mortgaged by the Applicant to the 1st Respondent until when the loan is fully paid. 6. That both the 1st respondent and 2nd respondent undertake not 2 to proceed with the intention of selling the disputed properties of the applicant or attaching the disputed properties to satisfy the payment of the loan pending the execution of this deed 7. That, the parties hereby agree that upon payment of the whole amount of loan, this matter would be considered to have been fully determined by this Honourable Tribunal. 8. This Settlement Deed shall be effective on the date it shall be signed and lodged in the Tribunal by both parties. 9. That the applicant abandons further costs and interests after the judgment. 10. That if any party to this Deed defaults to the terms and conditions set herein, the usual default clause shall apply, that is, this Deed upon being filed in the Tribunal shall have the same effect as a decree duly made by the Tribunal capable of being executed in the same manner as any other decree of the Court. 11. Each party shall bear its own costs so far incurred in this case. On July 5, 2023, the appellants filed Misc. Application No. 276 of 2023 before the Tribunal seeking execution of the decree on account that the judgment debtor (respondent) failed to honor the terms by paying the agreed debt to the 1st appellant. They asked the tribunal to issue an order for the attachment and sale of the mortgaged premises for the realization of TZS 26,107,930.00, being an outstanding loan due to the respondent. The respondent opposed the application for execution stating that he 3 never breached the agreement since payment of TZS 1,066,000.00 per month as agreed was still in progress. He added that the actual amount owed was TZS 6,000,000.00 and not TZS 26,107,930.25 claimed by the appellants. The respondent argued further that the application was prematurely lodged, for, the 60 months of performance was not yet due. Upon consideration of the parties’ evidence as well as competing submissions, the tribunal was not persuaded by the appellants’ claims. It dismissed the application on the ground that the respondent had paid all the decreed amount to the 1st appellant. The tribunal held further that the interest money claimed by the 1st appellant was not part of the settlement deed. Troubled by the decision, the appellants lodged this appeal raising the following grounds: (i) That the executing Tribunal erred in law and facts in holding that there was admission by the appellants’ counsel on the outstanding loan balance which the respondent ought to repay to the 1st appellant contrary to the submission and proof adduced tendered at the hearing. (ii) In the alternative without prejudice, the executing tribunal erred in law and fact by relying on the respondent’s bare assertions of 4 fully repaying the loan without proof to that effect. (iii) That the executing tribunal erred in law and facts in holding that there was no interest agreed upon at the time of executing the deed of settlement. (iv) That the executing tribunal erred in law and fact in disregarding the proof submitted by the appellants to prove the outstanding loan balance as ordered by the executing tribunal. At the hearing of this appeal Messrs. Stephen Charles Kaswahili and Geofrey Kange, both learned advocates, appeared representing the appellants and respondent respectively. By consent, the appeal was disposed of by way of written submissions. Before examining key issues in the appeal, it is important to deliberate two concerns with a view of putting the record in a proper perspective. Mr. Kaswahili in his rejoinder raised one aspect that the reply submissions by the respondents were filed out of the scheduled time. The other concern is on the propriety or otherwise of the consent judgment/consent decree deduced before the tribunal. This was raised by the Court and the parties had the opportunity to give their insights on Date 30 July 2024. Starting with the first limb, Mr. Kaswahili submitted that the 5 respondent’s reply submissions filed on 31 May 2024 were in violation of the court order dated 2 May 2024 which required the respondent to file it on or before 30 May 2024. The learned advocate implored the court to find that failure to file written submissions on the scheduled date amounts to non- appearance at the hearing date hence they are liable to be struck out. Supporting his proposition, Mr. Kaswahili referred to the case of Elizabeth Salehe Said Vs. Entrepreneurs Financial Center & 4 Others, Misc. Land Application No. 688 of 2020. Not surprisingly, Mr. Kange resisted the proposition that the respondent’s reply submission was electronically filed on 30 May 2024 as per the Electronic Filing Rules, GN. No. 148 of 2018. He argued that the control number was issued on 31 May 2024 and they effected payment on the same day. The learned advocate added that the computation of time should be from 30 May 2024 when they electronically filed their submissions. By way of postscript, Mr. Kange alluded that issuance of a control number has been a challenge as it has been delaying for the parties to effect payment. In essence, I have been invited to examine the nexus between the electronic filing of documents and the date of payment of court fees. The procedure of filing documents electronically and paying court fees is governed 6 by the Judicature and Application of Laws (Electronic Filing) Rules, 2018, G.N. No. 148 of 2018, and the Court Fees Rules, 2018. G.N. No. 148 of 2018. The former on the one hand provides the procedure of filing, service, conveyance, and delivery of documents using the electronic filing service. The Court Fee Rules on the other hand regulate the manner of paying court fees and their exemptions. The nexus between the electronic filing of documents and the date of payment of court fees seems to be a grey area in the two respective laws. Nevertheless, the same is accommodated through courts’ precedents, for instance, in John Chuwa Vs. Anthony Ciza, [1992] T.L.R, the Court held that the date of filing the application is the date of payment of fees and not that of receipt of the relevant documents in the registry. Also, in National Bank of Commerce Vs. Ballast Construction Company Limited (Civil Application No. 445/01 of 2022) [2023] TZCA 17798 (8 November 2023), the Court restated the same principle that: “I think this ground cannot tie me up for good reason that the question of when the Court document is deemed filed, is well settled. Rule 119 (1) of the Rules provides that a document is taken to have been lodged in Court upon payment of requisite fees”. Guided by the above position, in spite of Mr. Kange's argument being attractive, I am not prepared to go along with him that a document is taken 7 to have been lodged in Court upon filing it electronically. Truth be told, the date of filing a document in court is the date when the prerequisite fee is paid and not when the document is electronically submitted. Therefore, when a party files a case electronically on any date before the last date of the limitation period, he is also required to pay court fees. Failure to do so not only invalidate the document but also makes the entire act unacceptable under the law. Thus, the respondent’s written submissions filed on 31 May 2024 were indeed time barred. It is a trite law that anything filed out of time without leave of the court must be disregarded. See the case of Elizabeth Salehe Saidi Vs. Entrepreneurs Financial Centre and 4 Others (Misc. Land Application 688 of 2020) [2021] TZHC Land Division 433 (5 August 2021). Under the circumstances, the respondent’s reply submissions are liable to be struck out from the record, as I hereby do. Proceeding with the second aspect, the issue is whether the DLHT had before it a valid consent decree capable of being executed. On the 30th day of July 2024 when invited the parties to address this court on the above-pointed concern, Mr. Kaswahili, while making reference to paragraph 10 of the deed of settlement filed on 10th December 2019, submitted that the parties had agreed that the deed of settlement once filed 8 shall have the same effect as a decree made by tribunal capable of being executed. To him, the deed of settlement was a decree of the court pursuant to Order XXIII Rule 3 of the CPC. He added that the expression “application marked withdrawn” appearing in the order of the DLHT endorsing the deed of settlement as consent judgment, was a clerical error. He invited the court to expunge them from the record. Mr. Kange had no qualms in supporting the stance taken by Mr. Kaswahili. He, however, added that regulation 18 of the Land Disputes Courts Act (District Land and Housing Tribunal) Regulations, provides that where parties settle the matter, the tribunal is required to enter consent judgment which will be a decree giving rights for execution. I am in agreement with learned counsels that Order XXIII rule 3 of the CPC which regulates the procedure of adopting and registering a deed of settlement, provides that after the court or tribunal is satisfied that the terms in the deed were mutually agreed, it must mark the matter settled and proceed to issue the consent judgment in which the terms of the deed of settlement are recorded and adopted to form part of it. More so it should be noted that under the above quoted provision, a consent decree can only be passed after there has been an order recording 9 the compromise which is missing on record in this matter. It is a well-settled position and practice that, when the court satisfies itself of the existence of an agreement resolving the dispute between the parties concerning the suit before it, and when the parties appear to understand the terms of the compromise, which is not tainted with fraud or misrepresentation, a consent judgment is entered. It is from that judgment a consent decree is extracted for enforcement purposes. If we are to go by the submission of Mr. Kange who made reference to Regulation 18, such regulation bears a similar spirit to Order XXIII Rule 3 of CPC with slight departure. Regulation 18 of the Land Disputes Courts (The District Land and Housing Tribunal), Regulations of 2003 (hereinafter the Regulations) provides; (1) Where parties at any stage of proceedings have agreed to settle the matter before the tribunal the chairman may enter consent judgment or order upon such terms as may be agreed by parties. (2) A consent judgment or order so entered under sub-regulation (1) may be executed by the tribunal in case of default or non- compliance 10 (3) A consent judgment or order so entered under this regulation shall be written signed by parties and certified by the chairman. According to the above-quoted regulation, where parties agree to settle the matter, the chairman is required to do the following; one; it may enter consent judgment or order upon such terms of settlement; two, to make sure that the consent judgment or order is in writing, signed by parties and certified by the chairman. Upon fulfilling these procedures, such consent judgment or order becomes capable of being executed. Having regard to the import of the provisions and intent of the parties under paragraph 10 of the deed of settlement as submitted by the parties' counsel, in the light of the impugned order of the DLHT dated 10 December 2019, it is glaring according to them all the threshold requirements were met making the order capable of being executable. However, in the order dated 18.12.2019, the tribunal admitted the deed of settlement. The said order was only signed by the chairman. The deed of settlement which was so admitted was only signed by parties and filed in court, there was no endorsement of the signature of the chairman in accordance with sub regulation 3 above. Be that as it may, the record further reveals that the matter was marked 11 withdrawn. The procedure to withdraw the matter is provided under Regulation 17 (1) and (2) of the regulations and Order XXIII Rule 1-4 of the Civil Procedure Code, Cap 33 R.E 2019. When the matter is withdrawn the applicant (plaintiff) is deemed to have waived his rights of claim in those proceedings. The submission of Mr. Kaswahili, an advocate for the appellant that the expression “application marked withdrawn” appearing in the order of the DLHT endorsing the deed of settlement as consent judgment, was a clerical error that has to be expunged from the record though convincing but I decline to side with his stance. This is because siding with such an argument is to make this court assume that the trial tribunal meant so. This court cannot decide the matter on assumption so to speak. Therefore, in my view, there was no tribunal’s consent judgment or Order capable of being executed under the law. Having so observed, it is clear from the record that the DLHT proceedings fell short of the mandatory requirement of the law. It is apparent that on 18 December 2019, the DLHT made an order to the effect that the Deed of Settlement was admitted as Consent Judgment and proceeded to withdraw the application. However, there is neither consent judgment, order nor decree on record capable of being executed and crafted subsequent to that order. It is obvious, in the absence of the decree, that DLHT did not have 12 any jurisdiction to hear and decide execution application. With such a state of affairs, the DLHT had nothing valid before it to be termed as a consent judgment or decree clothing it with jurisdiction to execute the purported deed of settlement. The raised and discussed concern suffices to dispose of this appeal without venturing to the grounds of grievances advanced by the appellant in this appeal. In view of the foregoing, I quash the trial tribunals’ proceedings in application no. 323 of 2019 and that of 276 of 2023 and set aside its orders. Parties are at liberty to approach the trial tribunal for proper recording of the settlement to obtain an executable consent judgment or decree as per the dictate of the law if they still wish to proceed with their settlement. Owing to the circumstance of this matter I desist from making an order for cost. It is so ordered. DATED at MWANZA this 6th day of August 2024. W.M. CHUMA JUDGE 13 Court: Judgment delivered in court in attendance of Mr. Kaswahili and Mr. Kange Learned counsels for the appellant and respondent respectively this 6th day of August 2024. J. MSAROCHE DEPUTY REGISTRAR 14