CIVIL RERENCE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (KIGOMA SUB-REGISTRY) AT KIGOMA CIVIL REFERENCE NO. 1 OF 2023 DOTO DU NIA MUSSA APPLICANT VERSUS BI CHU KI IBRA HIM MASALA ... . .. .. . RESPONDENT (Arising from a Note of Reference of Question by the District Land and Housing Tribunal for Kigoma at Kigoma) (F. Chinuku, Chairwoman) Dated 14th day of July 2023 In Miscellaneous Land Application of No. 209 of 2020 RULING Date: 16/07 & 22/08/2024 NKWABI, J.: This is a ruling following the learned chairwoman recording "a note of reference of question" to this Court. The learned chairwoman had entertained an application for execution of a decree of the District Land and Housing tribunal. It was at the time of composing a ruling when she found that there are two conflicting decisions, one of the Kibirizi ward Tribunal which gives right on the suit land to the applicant and another from the District Land and Housing Tribunal which says the suit land is unknown thus it has to be identified first, then be handed over to the applicant. 1 She nurtured opinions that: 1. As the District Land and Housing Tribunal observed anomaly in the ward tribunal's proceedings, then the appeal ought to have succeeded. 2. It was improper for the District Land and Housing Tribunal to order the disputants to help the village executive office with the elders of Butunga to identify the land in dispute and the same be handed over to the applicant/decree holder herein. So, she brought this reference for directives. Parties were accorded a right to a hearing, orally. Mr. Method Kabuguzi, learned counsel represented the applicant while the respondent appeared in person, unrepresented. It was Mr. Kabuguzi's contention, in submission in chief, that on 23/11/215 the applicant won a land case in the trial tribunal which decided that she was the owner. He went on to state that the respondent appealed to the District Land and Housing Tribunal for Kigoma in Land Appeal No. 101 of 2015 where the applicant won the appeal as the appeal was dismissed on 06/07/2017. He advanced that when the appeal was dismissed, the District Land and Housing Tribunal ordered that the disputed piece of land was just a portion 2 and directed that the elders identify the piece of land and be handed over to the applicant that was at page 6 of the judgment. Mr. Kauguzi further submitted that then the respondent unsuccessfully appealed to the High Court. It is thus, explained Mr. Kabuguzi, execution proceedings were filed as Miscellaneous Land application No. 209 of 2020. He asked me to see the reference note at the 2nd page. He is of the view that there are no conflicting decisions because the ward tribunal decided that the applicant was the owner of the disputed piece of land. Mr. Kabuguzi maintained that the anomaly in the decision of the District Land and Housing Tribunal is minor, so, execution ought to proceed. He was of the opinion that the decree which ought to be executed is that of the trial tribunal. He beseeched this Court that the case file is returned to the executing tribunal to proceed with execution of the ward tribunal judgment. The Respondent replied to the submissions made by Mr. Kabuguzi. She stated that she was not present when the decision was delivered. She also stated that she appealed to the District Land and Housing Tribunal which dismissed her appeal but directed them to go to the elders to determine. She said the elders went to the disputed piece of land, but she was not involved 3 and the decision of the elders was not communicated to her. She emphasized that she used to attend to the tribunals and added that the piece of land has tombs of her relatives. She said, this Court dismissed her application for extension of time. She finally stated that that piece of land belongs to her and the applicant is not entitled to it. In rejoinder submission, Mr. Kabuguzi reiterated his earlier submission that the applicant won the land case in the ward tribunal and the district land and housing tribunal. He further stated that the respondent cannot stay in the land in dispute. He prayed the case file be returned to the district land and housing tribunal with a direction that the judgment of the ward tribunal which has never been overturned be executed accordingly. I have closely watched the rival submissions. I should state clearly, at the outset, that I have never heard that there would be two decrees or decisions that are to be executed by an executing court or tribunal. All I know is that an executing court/tribunal executes the original decree where it has neither been appealed against nor been overturned or in other words it has been upheld by a superior court/tribunal. Also, an executing court/tribunal may 4 execute, in appropriate circumstances, a decree passed by an appellate court/tribunal. In this reference, the executing tribunal has to determine which decree the applicant is seeking to be executed by looking at the application form and its attachments. In any way, there is only one decree attached to the application. See also the application form for execution at paragraph 3. Then, it should determine whether the decree is executable or it cannot be executed. In my view, it is not. open for an executing court/tribunal to determine the validity of a decree. That is open to a court/tribunal clothed with appellate or revisionary jurisdiction. Mr. Kabuguzi acknowledges that there is an oddity in the decree of the District Land and Housing Tribunal but downplays it urging that it is minor. I do not think that I am entitled, in this reference, to make a finding on the same. Further, though Mr. Kabuguzi said that his client won in the trial tribunal, he ran short of saying that decision was left intact by the District Land and Housing Tribunal. In my view, if the chairwoman finds that the decree of the District Land and Housing Tribunal is vague and that it cannot be executed, she should 5 proceed to rule so. If she finds it is executable, she should proceed to execute the same. But if need be, it is open to the chairwoman to call upon the parties to address her on whether the decree of the District Land and Housing Tribunal is executable, then decide. Having said the above, I order that the case file be returned to the District Land and Housing Tribunal for determination as to whether the decree of the District Land and Housing Tribunal is executable in the circumstances where parties were directed to go and ascertain the piece of land under the assistance of other persons and leaders. It is so directed. Wl~/_(~,\ J. F. NKWABI JUDGE 6