dhow mercantile ea limited vs lupembe farmers co operatives joint enterprises ltd muvyulu 2 others 2022 tzhclandd 12588 25 november 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISCELLANEOUS LAND APPLICATION NO. 434 OF 2022 BETWEEN DHOW MERCANTILE (EA) LIMITED......................... 1st APPLICANT LUPEMBE TEA ESTATES LIMITED............................. 2nd APPLICANT VERSUS LUPEMBE FARMERS CO-OPERATIVES JOINT ENTERPRISES LTD (MUVYULU)................. 1st RESPONDENT THE TREASURY REGISTRAR....................... 2nd RESPONDENT WAKALA WA MAENDELEO YA WAKULIMA WADOGO WA CHAI (TSHTIDA)............................. 3rd RESPONDENT RULING 17/11/2022 & 25/11/2022 A. MSAFIRI, J. This application is brought under sections 38(1), 95, 68 (1) of the Civil, Procedure Code Cap. 33 R.E 2019, (the CPC) and Order XXXVII Rule 2(1) also of the CPC. The applicants are seeking for the following Court's orders; 1. A declaration that the findings, conclusions and recommendations of a Committee purportedly and unilaterally appointed by the 2nd Respondent are wrongful, invalid and unlawful for being contrary to and or challenging the undisturbed and unreversed findings and conclusions of fact and law by the High Court of Tanzania, Land Division at Dar es Salaam (The Land Court) regarding lyembela Forest in its judgment in Land Case No. 193 of 2008 (the suit) dated 31st December 2014 involving the applicants as plaintiffs and the 1st & 2nd respondents as defendants; 2. An order directing the parties to the Land Court's Judgment and Decree not to derogate or disobey in any manner the terms of the Adjusted Decree and comply with the said terms and conditions to achieve their faithful intentions and purposes of settling the suit and the appeal amicably; 3. An order of temporary injunction to the 2nd respondent from handling over lyembela Forest to the 3rd respondent or to any other person until such time that the agreed valuations and verifications are done and refunds of the purchase price and the verified investment amounts are paid and/ or made to the Applicants; Aj /!, „ 2 4. An order that the costs of this application shall be in the cause; and 5. Any other reliefs) that the Hon. Court may deem just, fit and proper to grant to the applicants in the circumstances. The application is supported by the affidavit of one Yusuf Nawab Mulla who deponed that he is one of the Directors of Dhow Mercantile (EA) Ltd, (the 1st applicant) and also the Managing Director of Lupembe Tea Estates Ltd (2nd applicant). The application was opposed vehemently by the three respondents who filed their counter affidavits contesting the same. With leave of the Court, the application was disposed of by way of written submissions. The submissions by the applicants were drawn and filed by Mr. Michael IT. Ngalo, learned advocate. The reply submissions by the 1st respondent were drawn and filed by Dr. Rugemeleza A.K. Nshala, learned advocate, and the reply submissions by the 2nd and 3rd respondents were drawn and filed by Mr. Ponziano Lukosi, learned Principal State Attorney. In his submissions Mr. Ngalo gave introductory background to the current application. He stated that, the application emanates from Land Case No. 193 of 2008 where the applicants were plaintiffs and the 1st and 2nd 3 respondents were the 1st and 2nd defendants respectively. The 3rd applicant was not part to the said suit. The subject matter of the said suit was and is still Lupembe Tea Factory (Tea Factory). That previously, the majority shares of the said Tea Factory were owned and held by the Government and the rest by the 1st respondent. Later, during privatization in 1990's the Government sold its shares to the 1st applicant. That the Tea Factory was then handed over to the 1st applicant who, together with the 1st respondent formed and established Lupembe Tea Estates Ltd (2nd applicant). Mr. Ngalo submitted further that, the applicants instituted Land Case No. 193 of 2008 after the act of the 1st respondent of invading and unlawfully entering on and taking control over the Tea Factory. After the trial and determination of the suit, this Court delivered its judgment on 31/12/2014 and decided in favour of the applicants mainly against the 1st respondent. The 1st respondent was aggrieved and lodged an appeal to the Court of Appeal. While the appeal was pending, the applicants and the 1st and 2nd respondents, made an out of court settlement negotiations. The parties reached a settlement and proceeded to execute a Deed of Settlement which 4 compromised and adjusted the terms and initial decree of the suit. The Deed of Settlement was filed and recorded by the Court as an Adjusted Decree. Having given the background of the dispute, Mr. Ngalo prayed to adopt the contents of the affidavit supporting the application. He also prayed to abandon the ex-parte prayer as it was overtaken by events. Having gone through the detailed submissions by Mr. Ngalo, and having considered the same, I can safely paraphrase that, the reason the applicants are before this court is to seek its assistance to interpret the terms of the Adjusted Decree especially on the role of and its performance by the 2nd respondent's obligations vis-a-vis the rights and obligations of the other parties to the Adjusted Decree i.e. the Applicants and the 1st respondent and then give compliance directives and/or orders. Mr. Ngalo submitted that, the other reason for seeking the assistance of the Court is because there are certain rights and interests reserved to accrue to the applicants once the agreed valuations and verifications are done and concluded. Mr. Ngalo prayed for the Court to grant the reliefs prayed and costs to be awarded against the 2nd respondent alone who is claimed to be the source and cause of the dispute. JXfl In. 5 Dr. Nshalla, representing the 1st respondent, responded to the submissions by the applicants. He adopted the counter affidavit of the 1st respondent which was sworn by Dr. Rugemeleza A. K. Nshala. He submitted that, Lupembe Tea factory ownership was in the hands of Tanzania Tea Authority (TTA), but in 1999, the 74.24% of its assets were owned by the 1st respondent even though they were in the hands of TTA. Mr. Nshalla submitted that, the 1st respondent never entered into a sale of the said assets to the applicants but the entity that signed the sale agreement was Muungano wa Vyama vya Ushirika Lupembe (MUVYULU) and not Lupembe Farmers' Cooperative Joint Enterprises Ltd which is the registered name of the 1st respondent. That, the 2nd respondent's predecessor Parastatal Sector Reform Commission (PSRC) had no legal mandate to sell the said assets on behalf of the Government. He averred that the establishment of the 2nd applicant was not in accordance with the law. He admitted that, in 2008 a dispute ensued between the 1st respondent and the applicants which led to the filing of Land Case No. 193 of 2008 and the judgment was in favour of the applicants. That, the 1st respondent was^ 6 not satisfied and filed Civil Appeal No. 64 of 2016 at the Court of Appeal of Tanzania. However, the applicants and the 2nd respondents pushed for an out of court settlement which culminated into a Deed of Settlement dated 09/9/2021 leading to the Adjusted Decree. He lastly prayed that, the parties should finish the valuation of Lupembe Tea Factory and assets so that the factory and other assets are returned to the 1st respondent as per the terms of the Adjusted Decree. The 2nd and 3rd respondents also filed their reply submission. Through the learned State Attorney, they prayed to adopt their counter affidavit and its annexures to form part of submissions. The 2nd & 3rd respondents averred that paragraphs 18, 19 and 29 of the applicants submissions are not part of this application because they are not contained in the affidavit and reply to the affidavit by the applicants. They pray for the Court to disregard the said paragraphs. In their submissions the 2nd & 3rd respondents admitted the existence of Land Case No. 193 of 2008 and its judgment which was delivered in 31/12/2014. They also admitted that the parties to the dispute decided to settle their dispute out of Court and recorded their agreements by way of < 7 Deed of Settlement made on 09/9/2021 which was filed at the Registry of this Court on 10/9/2021. They added that, facts on record show that terms and conditions of the Deed of Settlement as were adopted in the Adjusted Decree are binding to the parties and overrides all the entitlements addressed in the Decree and Judgment in Land Case No. 193 of 2008. The 2nd and 3rd respondents argued that, in out of the court Deed of Settlement it was agreed that in case of any dispute arising from execution of the compromised decree it shall be resolved by discussion and in case of disagreement, a 3rd party shall be appointed to mediate them and lastly be submitted to Court for enforcement. Basing on that, the 2nd and 3rd respondents submitted that, since the parties agreed on the choice of forum in dispute settlement mechanism as per paragraph 12 of the Adjusted Decree, then this Court cannot entertain this application. They prayed for the Court to dismiss this application with costs. In alternative, the 2nd 3rd respondents submitted that, the action complained by the applicant i.e. handing over the lyembela Forest from 2nd c 8 respondent to 3rd respondent has already taken place and the applicants were informed of the same by the letter dated 27/7/2022. They stated that the act of handing over the lyembela Forest to the 3rd respondent was part and parcel of the agreement as per the Deed of Settlement. That, the applicants were part of the whole process of facts regarding to the ownership of lyembela Forest. To cement their points, the 2nd and 3rd respondents cited authorities including the case of Dar-es- Salaam Water Supply and Sanitation Authority & Another vs. Tabu Hassan (as a Legal representative of the late Salma Pili Tamaambele) & Another, Misc. Land Case No. 247 of 2021, HC (unreported). They prayed for the dismissal of this application with costs. There was no rejoinder by the applicants. I have gone through the affidavit, counter affidavits and the replies to the counter affidavits and their annexures. I have also read the detailed submissions of all parties and I should say that I am thankful for the energy put up by the counsels for the parties in the detailed submissions. Since I could not reproduce every words and arguments advanced by the parties in 9 their submissions, let is suffice to say that the Court have considered the same accordingly in the determination of this application. The major issue is whether this application has merit. I will determine this major issue by analysis of the evidence surrounding every prayer/relief sought by the plaintiff in this application. The applicant has submitted that the basic provision upon which the application is based is section 38(1) of the CPC which provides thus; "38(1) AH questions arising between parties to the suit in which the decree was passed or their representative, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit." Hence, this Court being the Court which executed decree in Land Case No. 193 of 2008 and later on an Adjusted Decree which was arrived by Deed of Settlement recorded in this Court, is vested with the mandate to hear and determine this application. The first prayer of the applicant is for declaration that findings, conclusions and recommendations of a Committee purportedly and io unilaterally appointed by the 2nd respondent are wrongful, invalid, and unlawful for being contrary to undisturbed and unreserved findings and conclusions of fact and law by High Court of Tanzania regarding lyembela Forest in its judgment in Land Case No. 193 of 2008. In the Decree of Land Case No. 193 of 2008, at paragraph 5, both the defendants were ordered to vacate the Tea Factory and lyembela Forest within one month from the date of delivery of the judgment. However, the applicants and the 1st and 2nd respondents entered a compromised Deed of Settlement and adjusted the said decree. At part A, paragraph 1 of the Compromised Settlement Deed, the Decree Holder (the 1st applicant) agreed to waive and forgo specifically and wholly, all the awarded sum and benefits granted by the High Court of Tanzania, in Land Case No. 193 of 2008 and that upon signing the Settlement Deed, the Decree Holder shall be bound by the same permanently. The Adjusted Decree was recorded by the Court as Court Decree binding to all parties. Hence, as per the Settlement Deed, the findings and conclusions of the High Court regarding lyembela Forest in its judgment in Land Case No. 193 of 2008 were changed/adjusted. While the findings and conclusions of the Court in its Judgment and Decree regarding lyembela Forest was for the said forest to be handed over to the plaintiffs (now applicants) within one month, all these were changed in the Adjusted Decree whereby it was agreed by parties to set up a Committee to find out or establish whether lyembela Forest is or is not part of Lupembe Tea Factory and if the answer is in affirmative, then the appointed audit firm shall carry out its valuation so as to determine its actual value. And in case it is found not to be part of the factory, then the Committee should strive to establish who is the really owner of lyembela Forest (refer paragraph 5 of the Adjusted Decree). At this juncture, the lyembela Forest was no longer to be handed over to the applicants as it was formerly decreed by this Court. The applicants had relinquished all the awards and benefits granted by this Court in Land Case No. 193 of 2008. 12 What was agreed as per the Adjusted Decree is for the parties to the Deed to set up a Committee to establish whether lyembela Forest was or was not part of Lupembe Tea Factory. The question is was the Committee established and carried out the said duty? According to the contents of paragraph 15 of the affidavit of the applicants, the Committee was appointed by the Treasury Registrar (2nd respondent) without any consultation with or involvement of the applicants or the 1st respondent. However, the applicants admitted that they appeared before the Committee to explain their knowledge of the facts regarding ownership of the forest and nothing more. On or about February 2022, the Committee released its report on its findings. Briefly the Committee founded that the handover of lyembela Forest to Dhow (1st applicant) was not done in accordance with the Sale Agreement hence it was not valid. It was recommended that the said forest should be handed over back to the Government and placed under the 3rd respondent. 1 13 At paragraph 20 of their affidavit, the applicants contends that the intended hand over of the forest to the 3rd respondent is premature, wrong and un-procedural because first; the 2nd respondent cannot circumvent the terms of the decree by handing over the forest to a person who has neither ascertained ownership of the forest nor a party to the suit or Decree. Second; the applicants averred that they have not been formally informed of the Committee's recommendations. According to the available evidence, the Committee was formed which was composed by various stakeholders among them being the 1st applicant who was represented by one Eng. Joanes Mbuji. In the Committee's report, it is stated that all the members of the Committee approved to the findings of the same except for Eng. Mbuji, the representative of the 1st applicant. After going through the evidence in the pleadings from all parties to the dispute, it is my finding that the findings, conclusions and recommendations of a Committee formed as per the requirement of the Adjusted Decree was valid and lawful. The reasons for my finding are that; first, the Committee was formed in conformity of paragraph 5 of the Adjusted Decree. 14 The Committee was to establish whether lyembela Forest was or was not part of Lupembe Tea factory. The Committee found that the ownership of the lyembela Forest is still in the hands of the Government and that the forest was wrongly placed in the hands of the 1st applicant. That, the 1st applicant bought Lupembe Tea Factory only, and the sale did not include lyembela Forest. The Committee found that the placing of lyembela Forest to the 1st applicant was unlawful and contrary to the sale agreement between PSRC and the 1st applicant. Hence, the Committee found that lyembela Forest is owned by the Government as it was discovered that the forest was not part of Lupembe Tea factory. So, the Committee findings and recommendations have never been contrary to the Adjusted Decree. Also, since the Decree and judgment of this Court in Land Case No. 193 of 2008 have been overridden by the Adjusted Decree which bound the parties including the applicants, then the Committee performed its duties as per terms of Adjusted Decree. M 15 Second reason is that, according to the evidence, the 1st applicants were aware of the findings of the Committee since they had a representative in the said Committee. The 1st applicant was informed about the Committee by a letter dated 01/2/2022 and requested to appoint a representative to join the Committee as a member. The applicants did that as one Eng. Jonas Mbuji appeared and was a member of the Committee. The applicants have denied that the said Eng. Jonas Mbuji was their representative in the Committee. However, the applicants were informed and as said earlier requested to appoint a representative and Eng. Jonas Mbuji appeared at the Committee meetings as a representative of the 1st applicant. In the circumstances, the Committee was correct to accept that the applicants were represented. The fact that Eng. Jonas Mbuji at the end refused to sign the Committee Report, does not mean that he was not a member of the Committee and was not representing the applicants particularly the 1st applicant. The Committee findings were as per the terms of Adjusted Decree at paragraph 5. It was established that the ownership of Lyembela Forest is still in the Government hands and has never shifted. The decision of handing the disputed forest to the 3rd respondent was not wrong and was not 16 contrary to the terms of Adjusted Decree. I say so because, having established that Lupembe Forest is still owned by the Government, then the same was handed to 3rd respondent who is one of the Government entities. The letter from the Treasury Registrar dated 23/5/2022 shows that the 1st applicant was among the institutions/offices which were sent the Report of the Committee. Furthermore, on 27/7/2022, again, the letter dated 27/7/2022 from Treasury Registrar was sent also to the applicants, informing them about the handing over of the forest to the 3rd respondent. All these letters show and proves that the applicants at all time were aware of the whole process i.e. from the establishment of the Committee, how it conducted its duties, its final report and the process of handing over the forest to the 3rd respondent. The terms of the Adjusted Decree did not dictate that the owner of the forest has to be a party to the suit, but it simply state that if the forest is not found to be part of the factory, then the Committee should strive to establish who the real owner of lyembela Forest is. To sum up on the first prayer by the applicants, this Court cannot grant the same as this Court finds that the findings, conclusions and. 17 recommendations of a Committee was valid and lawful as it was in accordance with the terms of Adjusted Decree. The second prayer is that the applicants prays for an order directing the parties to the Land Court's judgment and decree not to derogate and or disobey the terms of the Adjusted Decree. I find that, the parties have complied with the terms of the Adjusted Decree particularly Item/paragraph 5 of the Adjusted Decree. A Committee was formed as agreed, the parties were informed including the applicants. The Committee performed its duties, came with the findings that the ownership of lyembela Forest has never been transferred from the Government and the residents (wananchi), and recommended the hand over to the 3rd respondent, a Government entity. I hold that this prayer by the applicants cannot be granted since it has not been established that any party to the Adjusted Decree has breached the terms and conditions of the Adjusted Decree. The third prayer by the applicants is for an order of temporary injunction to the 2nd respondent from handing over lyembela Forest to the,; 18 3rd respondent or any other person. It is this Court's view that this prayer is already overtaken by events. According to the letter dated 27/7/2022 which was attached in the application by the applicants as "Annexure A" the handing over of lyembela Forest was done on 01/8/2022. Among the stakeholders invited to the handing over ceremony was the Managing Director of the 1st applicant. This is also averred by the 2nd and 3rd respondents in their counter affidavit that the said forest has already been handed over to the 3rd respondent. Since there was no order for maintenance of status quo and it is shown clearly by the contents of the affidavit by the applicants and counter affidavit by the 2nd and 3rd respondents that the handing over of the disputed forest has been done on 01/8/2022 which is proved by a letter dated 27/7/2022 which was also copied to the 1st applicant, then the Court cannot issue an order of temporary injunction on the same as the prayers are nugatory. In the upshot and foregoing reasons I find that the application has no