ELINISA NDANSHAU SCANNED

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND REVISION NO 29330 OF 2024 (Arising from Mise, land Application No 333 of2024, Kinondoni District Land and Housing Tribunal, Dated24/10/2024, Hon. R.L. CHEN YA) ELINISA NDANSHAU..................................... APPLICANT

VERSUS ELINISAFI MSHANA....................................................... RESPONDENT

RULING Date of last Order: 5/2/2025 Date of Ruling: 24/2/2025 LALTAIKA, J, The Applicant herein ELINISA NDANSHAU has moved this Court to exercise its revisionary power Land Disputes Courts Act and the Civil Procedure Code in respect of the Decision of the District Land and Housing Tribunal (the DLHT) for Kinondoni in Mise. Land Application No. 333 of 2024. The specific points highlighted are: Page 1 of 15 1. That the trial chairperson granted an execution order which is contrary to the decree.

2. The trial chairperson failed to entertain objection to execution contrary to Mandatory requirement of Regulation 23 (4 and 5) of GN NO. 174 of2003. When the application was called for hearing on the 15th day of November 2024, representation by Counsel was as follows: For the Applicant: Mr. Stephen Miyombo, learned Advocate. For the Respondent: Mr. Augustine Kusalika, learned Advocate. Parties chose written submissions as a form of hearing. With a nod of approval from this Court, the following schedule was agreed upon: (i) Appellant's written submission in chief: 29th November 2024 (ii) Respondent's Reply 13/12/2024 (Hi) Appellant's Rejoinder (if any): 20/12/2024 (iv) Mention necessary orders to schedule the date of Judgment 5/2/2024 at 10:00 I take this earliest opportunity to register my appreciation to Counsel for their spot on compliance with the scheduled order. This time management trait is essential to enable this Court to fulfil its constitutional mandate of timely dispensation of justice. The next part of this ruling is, in that order, a summary of submissions by both parties, my reasoning/analysis of the law and the verdict. Page 2 of 15 Addressing the first ground, Mr. Mayombo submitted that the central issue for determination was whether the executing court had issued an order for execution that was inconsistent with the decree. He proceeded to quote the wording

of the decree issued by the Makumbusho Ward Tribunal on 8th September 2015, which stated: "Ukuta wa bwana Ndanishau mlalamikiwa ambao yeye mwenyewe alikubali kuwa ndiyo mpaka ufuatwe hivyo hivyo mpaka kwenye Mnazi na kwamba baraza Hnapofika eneo hiIo Hiijiridhisha kwa kupima na kukuta futi 4.3 ni eneo la bwana Mshana mlalamikaji mpaka kufikia kwenye mnazi ambao upo mbe/e ya nyumba ya bwana Mshana ambao ndio mpaka." He asserted that the executing officer, in respect of Mise. Land Application No. 333 of 2024, had issued an order inconsistent with the decree by introducing new facts that were not part of the original decision. He pointed out that the execution order incorrectly stated that the Ward Tribunal's decision of 8th August 2015 had granted victory to the decree­ holder and ordered the judgment debtor to demolish the portion of the wall exceeding 4.3 feet into the decree-holder's land. Mr. Mayombo emphasized that the executing court had improperly added two key phrases— "Ukuta wake uliozidi wa futi 4.3" and "Kuvunja ukuta wake". He argued that it was a well-established legal principle that an Page 3 of 15 executing court could not grant reliefs that were not contemplated by the decree. In support of this position, he cited Rachel Nakware Mgeni v. Josephine Joseph Magelanga t/a Apex Car Care, Execution No. 28 of 2022, HCT (unreported). Reinforcing this principle, he also

referred to Mihayo Maziku Massana (Administrator of the Estate of the late Maziku Missana) v. Abdallah Mashimba Nzingula, Land Revision No. 3 of 2021, arguing that an executing court was bound by the terms of the decree and could neither add to nor vary its provisions. Counsel further argued that the Ward Tribunal's decision had clearly established that the Applicant's wall was the boundary and was to be followed as it was up to the coconut tree. According to him, there was no directive in the decree stating that the wall had encroached beyond the boundary, nor was there an order mandating its demolition. He contended that the executing court had acted beyond its powers by ordering the demolition of the Applicant's wall by 4.3 feet, a decision which effectively altered the decree. Page 4 of 15 Based on this reasoning, Mr. Mayombo urged the court to quash and set aside the decision of the executing court, as it had exceeded the limits of the decree. Turning to the second ground for revision, he submitted that the trial executing court had failed to comply with the mandatory requirements of Regulation 23(4) and (5) of GN No. 174 of 2003, which provided that an executing court must determine any objections raised within 14 days from the date of the execution order. He argued that the quoted provisions clearly imposed a duty upon the Chairman to consider any objection raised by the

judgment debtor before issuing a final execution order. He pointed out that in the present case, the judgment debtor (the Applicant) had filed a notice of objection on 4th November 2024, which was within the 14-day period required by law. He referred to annexure EFC-4 of the Applicant's affidavit to support this assertion. According to Counsel, the Chairman ought to have determined the objection before making a final order appointing the auctioneer, Kabango General Business Ltd, to forcibly demolish the judgment Page 5 of 15 debtor's wall and submit a report. He contended that the failure to consider the objection constituted a denial of the right to be heard, thereby contravening the cardinal principle of natural justice. He further argued that the Chairman had violated the duty of the court to fully engage the parties in the proceedings, as he was required to determine the objection raised within time by the judgment debtor. In support of his submission, he cited Highland Estate Ltd. v. Kampuni ya Uchukuzi Dodoma Ltd & Another, Civil Application No. 183 of 2004 (unreported), where the court had held that: "It is now a settled principle of law that a decision which is arrived at in violation of the basic right to a fair hearing is a nullity even if the same decision would have been reached had the party been heard fairly." Relying on this authority, Counsel maintained that the

proceedings and the execution order should be quashed and set aside for failure to comply with the mandatory provisions of Regulation 23(4) and (5) of GN No. 174 of 2003. In conclusion, he the application should be allowed with costs. Mr. Kusalika, Counsel for the Respondent, countered the submission made by Mr. Mayombo by first commenting that the relief Page 6 of 15 sought in the chamber summons and the reasons advanced in the affidavit did not support the application at hand. For clarity, he proceeded to reproduce the first relief sought, which requested the Court to call for and examine the proceedings of the District Land and Housing Tribunal for Kinondoni in Mise. Land Application No. 333 of 2024, presided over by Honourable R. L. Chenya, CP, to assess the correctness, legality, and propriety of the decision and to reverse, quash, and set it aside. The relief was sought on the ground that the Tribunal had failed to entertain an objection to execution contrary to Regulation 23(4) and (5) of GN No. 174 of 2003 and had granted execution contrary to the decree. Mr. Kusalika contended that upon reading the relief sought, it became apparent that the reason advanced by the Applicant was the failure to entertain an objection to execution and granting execution contrary to the decree. However, he found it surprising that the Applicant's submission and affidavit supporting the

application instead addressed the issue of an order issued by the Executing Tribunal for the demolition of a 4.3-foot fence between the Applicant and the Respondent. He argued emphatically that the relief sought and the reasons demonstrated were distinct and far apart, likening the discrepancy Page 7 of 15 to the difference between the sky and the earth. Accordingly, he urged the Court to treat the application as incompetent and to strike it out. Furthermore, Mr. Kusalika pointed out that the Applicant had not adopted the contents of the affidavit that supported the application, which had been filed before the Court on 16th November 2024. He maintained that this constituted another apparent error in supporting the application, reinforcing the Respondent's position that the application should be struck out for lacking submissions to support its hearing. Mr. Kusalika then turned to the merits of the application. He stated that the Respondent had contested the application by filing a counter­ affidavit on 18th December 2024, specifically addressing paragraphs 2, 3, 4, 5, 6, 7,8, and 9, which he prayed to adopt as part of his reply. He elaborated that the Respondent was executing a decision that had been entered on 8th August 2015. The application for execution had been filed before the District Land and Housing Tribunal on 28th September 2024, and the matter had been heard on 24th

October 2024 in the presence of both the Applicant and the Respondent. However, no notice of objection had been filed before the Executing Tribunal. Page 8 of 15 Counsel noted that, according to the Applicant's affidavit, the notice of objection was filed on 4th November 2024—almost ten days after the hearing of the execution application. Therefore, he argued that the Applicant's contention that the Trial Chairman had failed to entertain an objection to execution was devoid of merit, as no notice of objection had been filed at the time of the hearing. Consequently, Counsel averred, the Trial Court had nothing to consider, and the application for execution had been granted in accordance with the law, especially given that the Applicant had taken no steps for nine years to contest the judgment and decree of the Ward Tribunal of Makumbusho. Mr. Kusalika further submitted that the Applicant's counsel had extensively discussed the order given by the Executing Tribunal, which directed the demolition of a fence measuring 4.3 feet. He pointed out that the order explicitly stated that the Ward Tribunal's judgment, delivered on 8th August 2015, had granted the successful party a decree requiring the judgment debtor to demolish the fence that encroached upon the decree holder's land. Since there had been no subsequent judgment setting aside the Ward Tribunal's decision, Counsel asserted,

the judgment debtor had been given 14 days to comply with the order. Page 9 of 15 Based on this order, Mr. Kusalika maintained that there was no doubt that the Executing Tribunal had granted the application for execution as prayed by the Respondent. He stressed that the intended demolition was based on the Ward Tribunal's order and that all grounds advanced by the Applicant's counsel were devoid of merit. Given that no objection had been filed at the time of hearing the application for execution, he emphasized, the Executing Tribunal had been justified in granting execution. He, therefore, prayed for the application to be dismissed for want of merit. Turning to the authorities cited by the Applicant's counsel, Mr. Kusalika submitted that the case of Rachel Nakware Mgeni v. Josephine Joseph Magelanga, t/a Apex Car Care, Execution No. 28 of 2022, HTC was distinguishable from the matter at hand. He argued that the Executing Court had not exceeded the limits set by the Ward Tribunal's decree, making the authority inapplicable. Similarly, he contended that in Mihayo Maziku Massana (Administrator of the Estate of the Late Maziku Missana) v. Abdallah Mashimba Nzingula, Land Revision No. 3 of 2021, there had been no violation of the decree's terms, and the Executing Court had acted within its jurisdiction. Page 10 of 15 Regarding the second ground concerning the notice of objection,

he reiterated that at the time the Executing Court had heard Mise. Land Application No. 333 of 2024 on 24th October 2024, no notice of objection had been raised by the Applicant. Accordingly, he argued that Highland Estate Ltd v. Kampuni ya Uchukuzi Dodoma Ltd & Another, (Supra) was also distinguishable, as no pending notice of objection had existed when the execution application was heard. For these reasons, he submitted that the application lacked merit and should be dismissed with costs. Mr. Mayombo, Counsel for the Applicant, rejoined by reiterating his earlier submission albeit with a counterattack on the attempt by his learned brother to water down relevance of the authorities cited. I have dispassionately considered the grounds of revision and thoroughly examined the records. The primary issue for determination is whether the execution order issued by the DLHT was inconsistent with the decree of the Ward Tribunal dated 8th September 2015. The decree in question states as follows: "Ukuta wa bwana Ndanishau mlalamikiwa ambao yeye mwenyewe a/ikuba/i kuwa ndiyo mpaka ufuatwe hivyo hivyo mpaka kwenye Mnazi na kwamba baraza iinapofika eneo hiio IHijiridhisha kwa kupima na kukuta futi 4.3 ni Page 11 of 15 eneo la bwana Mshana miaiamikaji mpaka kufikia kwenye mnazi ambao upo mbe/e ya nyumba ya bwana Mshana ambao ndio mpaka. " The Applicant contends that the Executing Tribunal,

in Mise. Land Application No. 333 of 2024, introduced additional terms not contemplated in the decree, specifically by directing the Applicant to demolish a portion of his wall exceeding 4.3 feet. He argues that the order effectively varied the decree by inserting terms that were neither expressed nor implied in the original decision. This Court finds merit in the Applicant's argument. The law is settled that an executing court has no power to go beyond the terms of a decree. As held in Rachel Nakware Mgeni v. Josephine Joseph Magelanga t/a Apex Car Care, Execution No. 28 of 2022, HCT (unreported): "The duty of an executing court is to give effect to the terms of the decree. It has no power to go beyond its terms. Though it has power to interpret the decree, it cannot make a new decree for the parties under the guise of interpretation. " From the wording of the decree, it is evident that the Ward Tribunal confirmed the boundary as being along the Applicant's wall up to a coconut tree. There was no directive in the decree that the wall encroached beyond the boundary or that it should be demolished. By ordering the Applicant to Page 12 of 15 demolish 4.3 feet of the wall, the Executing Tribunal exceeded its jurisdiction and effectively modified the decree. Consequently, the execution order issued by the DLHT in Mise. Land Application No. 333 of 2024 is found to be illegal and

improper. This ground of revision is therefore upheld. The second issue for determination is whether the Executing Tribunal failed to entertain an objection to execution contrary to Regulation 23(4) and (5) of GN No. 174 of 2003. These provisions require an executing tribunal to consider and determine any objection raised within 14 days before granting execution orders. The Applicant argues that he filed a notice of objection on 4th November 2024, within the prescribed 14-day period, but the Executing Tribunal ignored it and proceeded to appoint an auctioneer, Kabango General Business Ltd, to forcibly demolish the wall. He submits that this constituted a denial of the right to be heard, violating the principle of natural justice. On his part, the Respondent contends that no such objection was on record at the time of the hearing of the execution application on 24th Page 13 of 15 October 2024. He argues that the Applicant only filed the objection on 4th November 2024, after the execution order had already been issued. Upon reviewing the record, it is clear that the execution application was heard and determined on 24th October 2024, whereas the Applicant filed the notice of objection on 4th November 2024. This means that, at the time the Executing Tribunal made its decision, no objection had been formally lodged. The Tribunal, therefore, cannot be faulted for failing

to entertain an objection that was not before it at the material time. The Applicant s reliance on Highland Estate Ltd v. Kampuni ya Uchukuzi Dodoma Ltd & Another (Supra) is distinguishable. In that case, the court nullified proceedings where an objection was filed within time but was ignored. In contrast, in the present matter, the Applicant's objection was filed after the execution order had already been granted. Accordingly, this ground of revision is found to be without merit and is dismissed. Premised on the above, I find that the execution order issued by the DLHT in Mise. Land Application No. 333 of 2024 was inconsistent with the decree of the Ward Tribunal, thus rendering it improper. However, I find no merit in the second ground of revision, as the objection was filed belatedly. Page 14 of 15 In the upshot, the execution order issued in Mise. Land Application No. 333 of 2024 is quashed and set aside for being beyond the scope of the decree. The learned Chairman is directed to rectify the variation. The second ground of revision is dismissed for lack of merit. Each party shall bear their own costs. It is so ordered. E.I. LALTAI KA

JUDGE 24/02/2025 Court: Ruling delivered in Court Chambers this 24th day of February2025at 15:00 PM in the presence of Mr. Amrani Matumbo, legal officer for Counsel for the Respondent, Ms. Elizabeth Mushi wife of the Applicant and the Respondent. Page 15 of 15