deus kashasha vs longino rwegasira 2023 tzhc 23381 24 november 2023

IN THE HIGH COURT OF TANZANIA (THE DISTRICT REGISTRY OF BUKOBA)

AT BUKOBA MISC. LAND CASE APPEAL No. 3 OF 2021 (Arising from Land Appeal No. 177 of 2016 at the District Land and Housing Tribunal for Kagera at Bukoba and Originating from Wise. Land Application No. 380 of2020) DEUS KASHASHA......................................... APPELLANT

VERSUS LONGINO RWEGASIRA............................... RESPONDENT

RULING 24th October & 24th November, 2023 OTARU, J.: This Appeal was filed by the appellant Deus Kashasha against decisions and orders of the District Land and Housing Tribunal for Kagera at Bukoba dated 10th June 2020 and 16th June 2021 in respect of taxation of costs awarded to the respondent, Longino Rwegasira. In a nutshell, the facts leading to this matter are such that the respondent won the case at the District Land and Housing Tribunal for Kagera at Bukoba in Land Appeal No. 177 of 2016 and was awarded costs. He filed an application for taxation of the Bill of Costs at the District Land and Housing Tribunal for Kagera at Bukoba. Ruling thereto was delivered by Mr. E. Mogasa, Hon. Chairman, on 10th June 2020. One year thereafter, on 16th June 2021 a decision is issued by Mr. R. Mtei, Hon. Chairman, stating an amount that the applicant deserves to be i paid. On the same day, an order appointing Samba Service Company to execute the order is issued. On 3rd August 2021 another order is issued to sell the respondent's landed property to recover the costs. This prompted the appellant to file this Appeal. When the matter was scheduled for hearing, Mr. Rogate E. Assey and Mr. Gerase Reuben, learned Advocates for the appellant were met with a Preliminary 0 • Objection filed by Mr. Lameck J. Erasto, learned Advocate for the respondent that the appeal against the decision of 10th

June 2020 was unfounded and deserved to be dismissed because it was filed out of time and by way of appeal instead of reference contrary to Order 7(1) & (2) of the Advocates Renumeration Order (GN No. 264 of 2015). Albeit not readily, counsel for the appellant conceded to the same and prayed to abandon the appeal against the 10th of June 2020 decision. He thus argued against the decision of 16th June 2021 only. The relevant ground reads as follows;- 'that the trial Tribunal erred in law for issuing two contradictory orders on the same matter and for trying the same as two separate application^ (emphasis mine). Counsel for the appellant contended that the respondent had filed Misc. Application No. 380 of 2020 for taxation of Bill of Costs which had already been decided through Misc. Application No. 341 of 2018. They insisted that it was wrong to do so because firstly, it was opened as a separate application and secondly, because there was a decision already, albeit unprocedural and illegal. 2 They thus prayed for the court to intervene in what they termed as illegality of both decisions of the Tribunal. Citing the case of Diamond Trust Bank v Idrisa Sheikh Mohamed (CAT Z'bar) Civil Appeal No. 262 of 2017 that the higher court has a duty to address illegalities in lower courts, counsel urged the court to allow the Appeal. On his part, Mr. Erasto contended that Misc. Application

No. 380 of 2020 was filed to execute the decision arrived at in Misc. Application No. 341 of 2018. He added that since the appellants are barred by law of limitation to challenge the decision in Misc. Application No. 341 of 2018, the whole Appeal lacks legs to stand on and therefore it should be dismissed with costs. In rejoinder, Counsel for the Appellant insisted that the decision for costs had no basis thus urged the court to look into both Applications. Having heard the submissions of the rival parties, there are two questions for determination before this court; what is being challenged and whether the court has been properly moved. From the court's records it is gathered that counsel for the respondent filed Misc. Application No. 380 of 2020 for purposes of executing the order dated 10th June 2020 for payment of Tshs. 748,000/= as costs. The applicant contested the application on the basis that there was qo order providing for such an amount and prayed for dismissal of the application. The Hon. Chairman proceeded to 3 determine the amount to be paid to the respondent and came up with Tshs. 718,000/=. That decision is subsequently followed with an order appointing Samba Service Company to execute it. At this point I directed parties to address the court on the competence of the appeal challenging the execution order. Parties addressed the court as directed. Mr. Erasto for

the respondent argued that the order is not appealable and cited section 38 and Order XLI Rule 1 of the Civil Procedure Code [Cap. 33 R.E. 2019], hereinafter CPC. He also referred the court to the case of Chacha Nyikongoro v. Ndege Kiseke, Misc. Land Appeal No. 145 of 2020 (HC Musoma). Mr. Assey on his part, was unbending to the position as argued by Mr. Erasto. He insisted that section 41 of the Land Disputes Courts Act (Cap. 216 R.E. 2019) provides for appeals from the District Land and Housing Tribunal to the High Court on any orders, such that the impugned order is appealable. As narrated above, Application No. 380 of 2020 was intended to execute the decision dated 10th June 2020 in Miso. Application No. 341 of 2018, existence of which begun as Taxation Cause No. 341 of 2018 when the respondent filed for taxation of the Bill of Costs. The matter had mysteriously changed to Misc. Application No. 341 of 2018, the file of which could not be traced. It was however observed by the court that proceedings in Taxation Cause No. 341 of 2018 or Misc. Civil Application No. 341 of 2018 were recorded in the closed appeal file titled Appeal No. 177 of 2016. Instead of dealing with execution, the chairman 4 determined the amount as Tshs. 718,000/= when he stated 'Hivyobasi, mwenye Tuzo anastahi/i kurejeshewa kiasi cha Tshs. 718,000/- kama gharama'. He then proceeded to appoint a court

broker to execute the same. The amount determined was different from the initial Tshs. 748,000/= taxed on 10th June 2020. I believe that this decision created confusion to the appellant to consider it a second taxation decision while in fact it was execution decision/order. As correctly submitted by Mr. Erasto, an appeal against the execution order is not specified under section 74(1) and Order XL of the CPC as an appealable order. I am also persuaded by the decision of Chacha Nyikongoro (supra), that available remedies to a person aggrieved by the execution decision/order are to file application for revision of the proceedings; litigate the questions relating to execution under section 38 of the CPC; or file reference to this court under Order XLI Rule 1 of the CPC. An appeal is not one of available remedies. Even section 41 of the Land Disputes Courts Act (supra) does not provide for it. Thus, for this court to intervene in the impugned order, it has to be moved properly but not by way of appeal. Consequently, as the impugned order is not appealable, this appeal is incompetent and I hereby strike it out from the books of the High Court of Tanzania Sub-Registry of Bukoba at Bukoba. Considering the circumstances of this case, no order as to costs is given. 5 DATED at BUKOBA this 24th day of November, 2023. M.P/Otaru Judge Court: Judgment delivered in court in the presence of the appellant and the respondent, both in person as well represented by learned Advocates Mr. R. Assey and Mr. L. Erasto, respectively. The right of appeal is duly explained to the parties. M.P. Otaru Judge 24/11/2023 6