edisela daud v severiani salvatory laurian 2023 tzhc 22078 26 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF BUKOBA AT BUKOBA IN THE MATTER OF LAND REFERENCE NO. 06 OF 2023 AND IN THE MATTER OF LAND APPLICATION NO. 15 OF 2020 AT THE DISTRICT LAND AND HOUSING TRIBUNAL FOR KARAGWE BETWEEN EDISELA DAUD...................................................................... APPLICANT VERSUS SEVERIANI SALVATORY LAURIAN........................................RESPONDENT RULING 24th and 26th October, 2023 BANZI, J.: On 29th August, 2023, this Court received the opinion of learned Chairman of the District Land and Housing Tribunal for Karagwe ("the DLHT") seeking directives of this Court on jurisdictional issue concerning the competence of Application No. 15 of 2020 which was filed by the applicant. The reference was brought under section 77 and Order XLI, Rule 1 of the Civil Procedure Code [Cap. 33 R.E. 2019] ("the CPC"). The genesis of this reference traces its root way back in 2014 at Nkwenda Primary Court where Solena Denis sued Stephano Daud, the Page 1 of 6 applicant's husband for attacking and injuring her through Criminal Case No. 413 of 2014. After being convicted, the applicant's husband was sentenced to pay compensation of Tshs.500,000/= to Solena Denis. However, he failed to pay such compensation as a result, Solena Denis successfully applied for execution before the same court. In the course of execution, Solena Denis attached the land of Stephano Daud ("the suit land") and the same was sold to the respondent on public auction conducted on 9th September, 2015. Following the sale of the suit land, the applicant filed Application No. 43 of 2015 before the DLHT contending that, the suit land was matrimonial property and thus, it is not subject to attachment and sale. She further claimed not to be aware of the sale of the suit land. The DLHT declared her as the lawful owner of the suit land. However, on appeal before this Court via Land Appeal No. 20 of 2018, the proceedings and judgment of the DLHT were nullified and quashed and an order of trial de novo was issued. After the order of re-trial, the applicant filed Application No. 15 of 2020 before the DLHT with a prayer to be declared as the lawful owner of the suit land. In his written statement of defence, the respondent raised preliminary objection on two points one that, the tribunal had no jurisdiction to determine the matter which had already been determined by the primary court and two that, the applicant had no locus to sue without being Page 2 of 6 appointed the administratrix of estate of Stephano Daud. In determining the objection, the Chairman, (Hon. E. Masao) overruled them and ordered the case to proceed on merit. Nonetheless, before commencement of hearing of the application on merit, the successor Chairman (Hon. D.S. David) had another opinion on the merit of the objection in respect of jurisdictional issue despite being finally determined by his predecessor. Considering that he had no jurisdiction to overturn the decision of his fellow Chairman, he made this reference to this Court seeking directive on whether it has jurisdiction to determine this matter. In his opinion, he was of the view that, as the applicant was not a party to the execution proceedings, she was required to file objection proceeding before Nkwenda Primary Court instead of filing application before the DLHT as she did. He went on opining that, as the execution had already been fulfilled, the remedy was to set it aside as per rule 85 of the Magistrates' Courts (Civil Procedure in Primary Courts) Rules, GN No.310 of 1964 ("the CPPC Rules"). Hence, he is of the opinion that the tribunal has no jurisdiction to determine the matter. Having received the opinion of the learned Chairman and in upholding the right to be heard, learned counsel for both sides were summoned to appear and address the Court on the jurisdiction issue raised by learned Page 3 of 6 Chairman. Mr. Frank John, learned counsel appeared for the applicant and Mr. Abel Rugambwa, learned counsel represented the respondent. Mr. John submitted that, after going through the opinion of the Chairman and perusing relevant laws, the Chairman was correct in his opinion that, the tribunal has no jurisdiction to determine this matter. On his side, Mr. Rugambwa conceded to the observation of Mr. John and added that, rules 70 (1) and 85 (1) of the CPPC Rules give the remedy for the party before and after auction. In the circumstance, the tribunal has to be directed that it has no jurisdiction to entertain the application. Having considered the submission of learned counsel for both sides together with the opinion of the learned Chairman, the issue for determination is whether the DLHT has jurisdiction to determine the application in question. 'It is undisputed that, the subject matter of the claim before the DLHT is the suit land located at Ruhita village. It is also undisputed that, the same suit land was attached and legally sold in public auction on 9th September, 2015 in the course of executing compensation order made by Nkwenda Primary Court in Criminal Case No. 413 of 2014 against the applicant's husband. From her application before the DLHT, it is apparent that, the applicant is challenging the whole process from attachment of the suit land Page 4 of 6 to the moment it was sold through public auction without her knowledge. As rightly opined by learned Chairman and observed by learned counsel for both sides, since the objection proceeding under rule 70 of the CPPC Rules is no longer a proper remedy for the applicant, she had and still have another remedy under rule 85 of the CPPC Rules. That is to say, the applicant who was not a party to the execution in question and claiming ownership of the suit land can apply for setting aside the sale of the said suit land pursuant to rule 85 (1) (a) and (b) of the CPPC Rules. Apart from that, as correctly opined by learned Chairman, the argument by the applicant that her complaint was brought under Order XXI, Rule 62 of the CPC is misplaced because, unlike Order XXI, Rule 62 of the CPC which permits a separate suit for aggrieved party against an order made in objection proceeding, the CPPC Rules governing the process of execution before primary courts do not provide for such remedy. Besides, had the CPPC Rules provided for such remedy, yet still her application before the DLHT would be prematurely instituted because such suit can only be instituted after dismissal of objection proceeding. Under the prevailing circumstances and as correctly opined by learned Chairman, the DLHT is not clothed with jurisdiction to entertain the application in question. The only remedy available to the applicant is to pursue her right through rule 85 (1) (a) and Page 5 of 6 (b) of the CPPC Rules. She can start by applying extension of time within which she can file the application for setting aside the sale of the suit land. That being said, I agree with the opinion of learned Chairman that, the DLHT has no jurisdiction to entertain Application No. 15 of 2020. Consequently, I invoke revisional powers and nullify the whole proceedings and quash the ruling dated 23rd November, 2021. The applicant is directed to pursue her right through rule 85 (1) (a) and (b) of the CPPC Rules at Nkwenda Primary Court. It is accordingly ordered. I. K. BANZI JUDGE 26/10/2023 . Delivered this 26th day of October, 2023 in the presence of Ms. Gisela Rugemalira, learned counsel holding brief of Messrs. Frank John and Abel Rugambwa, learned Advocates. I. K. BANZI JUDGE 26/10/2023 Page 6 of 6