epimaki usinga administrator of the estate of the late maria masele usinga and others vs evarist usinga and others 2023 tzhc 23070 28 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT MOSHI MISCELLANEOUS LAND CASE APPLICATION NO. 13 OF 2023 (C/F Misc. Application No.318 of 2021 of the District Land and Housing Tribunal for Moshi at Moshi; Originating from Application No. 115 of 2013 of the District Land and Housing Tribunal for Moshi at Moshi) EPIMAKI USINGA (Administrator of the Estate of the late Maria Masele Usinga) ……...….…….……….…………....................... 1st APPLICANT VICTORIA MARTIN KIMBORI (Administratrix of the Estate of the late Kusare Usinga) ....................................................... 2nd APPLICANT RIZIKI USINGA ................................................... 3 rd APPLICANT VERSUS EVARIST USINGA …………….…….…………….... 1st RESPONDENT MARIA MKAJAJI USINGA ………………………... 2nd RESPONDENT ANNA MANKA USINGA …………………………... 3rd RESPONDENT ELIZABETH TAABU USINGA ........................... 4th RESPONDENT RULING 25/10/2023 & 28/11/2023 1 SIMFUKWE, J. The applicants herein filed this application under section 79 (1) (b) and (c) and section 95 of the Civil Procedure Code, Cap 33 R.E 2019 and section 41 (1) and 43 (1) (b) of the Land Disputes Courts Act, Cap 216 R.E 2019 seeking the following orders: a) That, the Execution order issued by Honorable H. Lukeha – Chairman in respect of Misc. Application No. 318/2021 dated 20/3/2023, be revised. b) Costs be in the course. c) Any other relief(s) this Hon. Tribunal (sic) deems fit, just, proper, fair and equitable to grant. The application was filed by way of chamber summons supported by reasons and grounds advanced in the affidavit sworn by Advocate Gideon Mushi for the applicants. The matter was ordered to be argued by way of written submissions. The applicants were represented by Mr. Gideon Mushi learned counsel while the respondents enjoyed the service of Mr. Faustine Materu learned counsel. In his written submission, Mr. Gideon Mushi learned counsel for the applicants prayed to adopt his affidavit in support of the Chamber 2 Summons to form part of his submission. He submitted that, pursuant to the ruling in Misc. Application No. 318/2021, the Hon. Chairman misdirected himself when he issued an order which is not in existence. The learned counsel quoted the decisions in Application No. 115/2013 of the District Land and Housing Tribunal of Moshi and Misc. Application No. 318/2021 and contended that what was executed in respect of Misc. Application No. 318/2021 was totally different with what was decided in Application No. 115/2013. He gave an example of the following order: “Pia Washindwa hukumu wanaamriwa wawalipe Washinda tuzo sh. 11,960,000/= (fidia ya kutumia vyumba vitatu vya biashara vyenye mgogoro na vipande vitatu vya ardhi vyenye mgogoro ambazo ni mali halali ya washinda tuzo, ndani ya siku 14 kuanzia tarehe ya Amri hii....” Mr. Gideon informed this court that the above quoted order is nowhere to be found in the judgment of Hon. J. Silas – Chairman in Application No. 115/2013. He was of the view that, it is absurd for the Tribunal to execute or to issue an order for the decree which is not in existence. The said order went further to declare that the suit premise is the lawful property of the respondents while the judgment declared that the suit premise is 3 the lawful property of the late Usinga Juma Kimbori subject to administration by the appointed administrator. Mr. Gideon submitted further that; execution of the decree is a very sensitive process. That, the one with mandate to determine the same, should satisfy himself that all procedures and laws relating to execution are properly adhered to. He cited the case of Oryx Oil Co. Ltd v. Community Petroleum Ltd and Another, Misc. Land Revision No. 02/2019, High Court of Tanzania at Moshi, in which Hon. F. A. Twaib, J quoted with approval the case of M/s Sykes Insurance Consultants Co. Ltd v. M/s Sam Construction Co. Ltd, in which at page 8 it was observed that: “Execution of decree is a judicial function which must be carried out transparently and judiciously which entails observing a high degree of discipline and care for all court officers vested with such duty because non-compliance with the mandatory legal provision relating to execution of decrees occasioning material irregularities may result to the vitiating to the entire process. I would add, with respect, that execution is a sensitive process, and all caution should be taken to ensure that, it is done properly. Perhaps that is the reason why the practice has been that in District 4 Courts and resident Magistrates Courts, it is only the Resident Magistrate in-Charge who deals with executions.” It was emphasized that, since execution order issued in Misc. Application No. 318/2021 does not conform with the judgment in Application No. 115/2013, the said execution order is tantamount for being issued without a lawful decree of the Tribunal. Even the suit premise mentioned in Misc. Application No. 318/2021 was not specifically addressed and/or shown in Application No. 115/2013. In conclusion, Mr. Gideon prayed that, this application be granted with costs, the execution order be revised and the application for execution be ordered to be tried de novo pursuant to mandatory provisions of the law. In their joint reply submission, on the outset, the respondents submitted that the application has no merit at all. They quoted the decree of the trial tribunal which reads: “DECREE CLAIM FOR: - (i) A declaration that the applicants are the owners of the suit property as divided by the 1st Applicant and the respondents 5 should be evicted from the portions of their shamba and the rooms allocated to the 2nd, 3rd and 4th applicants. (ii) An order that the respondents pay general damages to the tune of Tshs. 60,000/= per month for the 3 rooms unlawfully occupied by them in the house until they are given vacant possession, and Tshs. 500,000/= per year for the 3 portions of the shamba in dispute being used and cultivated by the respondents, till vacant possession of the shamba. (iii) Costs and advocate’s fees. (iv) Any other relief the tribunal deem fit and just to grant. This Application is coming for Judgment this 14th day of September, 2017 before Hon. J. SILLAS -Chairman in the presence of parties. IT IS HEREBY ORDERED THAT; (i) The Application is hereby granted and due to the nature of this dispute that the parties to the suit are family members. (ii) There is no order as to costs. Given under my Hand and Seal of the Tribunal this 14th day of September, 2017. Sgd J. SILLAS 6 CHAIRMAN DISTRICT LAND AND HOUSING TRIBUNAL MOSHI Issued this 19th day of October 2017.” The respondents noted that, the above decree has been extracted from the judgment of the DLHT of Moshi. That, after being granted all the prayers in the judgment as extracted in the decree of the DLHT as shown above, the respondents filed their amended application for execution on 13th of February 2023 which was argued before the Chairman Hon. Lukeha who delivered his ruling on the 20th of March 2023. They were of the view that there is no fault with the findings of the DLHT. They prayed that the applicants’ application be entirely dismissed with costs as this is a delaying tactic to bar the respondents from enjoying the fruits of their judgment since 14th September 2017 and some of them have already passed away. I have examined the affidavit of the learned counsel of the applicants in support of the application, the counter affidavit of the learned counsel for the respondents, the submissions of both parties and the records of the trial tribunal. The issue for determination is whether this application for revision has merits. 7 Section 79 (1) (a) (b) and (c) of the Civil Procedure Code (supra) provides that: “79 (1) The High Court may call for the record of any case which has been decided by any court subordinate to it and in which no appeal lies thereto, and if such subordinate court appears- (a) To have exercised jurisdiction not vested in it by law; (b) To have failed to exercise jurisdiction so vested; or (c) To have acted in the exercise of its jurisdiction illegally or with material irregularity, The High Court may make such order in the case as it thinks fit.” Emphasis added Section 41 (1) of the Land Disputes Courts Act (supra) provides that: “41. -(1) Subject to the provisions of any law for the time being in force, all appeals, revisions and similar proceeding from or in respect of any proceeding in a District Land and Housing Tribunal in the exercise of its original jurisdiction shall be heard by the High Court.” Section 43 (1) (b) of the Land Disputes Courts Act provides that: 8 “43. -(1) In addition to any other powers in that behalf conferred upon the High Court, the High Court- (b) may in any proceedings determined in the District Land and Housing Tribunal in the exercise of its original, appellate or revisional jurisdiction, on application being made in that behalf by any party or of its own motion, if it appears that there has been an error material to the merits of the case involving injustice, revise the proceedings and make such decision or order therein as it may think fit.” Emphasis added The above cited provisions vest revisionary powers on this court and prescribes grounds for revising decisions of subordinate courts/tribunals. In this application, the applicants implore this court to revise the execution orders in Misc. Application No. 318/2021 on allegation that the said orders were contrary to the judgment and decree in Application No. 115/2013. The respondents quoted the decree and part of the judgment of Application No. 115/2013 to support their assertion that there is no fault with the findings of the DLHT in Misc. Application No. 318/2021. In his submission before the trial tribunal Mr. Materu for the respondents submitted among other things that, in Application No. 115/2013 the applicants herein were ordered to pay 60,000/= per month for three 9 rooms from 10/07/2013; which are 116 months, making a total of Tshs. 6,960,000/= and Tshs 500,000/= for each year, for each piece of land, for ten years making a total of Tshs. 5,000,000/=. The grand total being Tshs. 11,960,000/=. At page 4 of the ruling in Misc. Application No. 318/2021, the learned Chairperson stated that: “Nimepitia hukumu na tuzo ya Baraza hili katika Maombi namba 115 ya mwaka 2013 na hukumu na tuzo ya Rufaa namba 33 ya mwaka 2017 ya Mahakama Kuu Kanda ya Moshi (Mkapa, J) ninakubaliana na Maombi haya kama yanavyoombwa na washinda tuzo kupitia wakili Materu. Hii ni kwa sababu hakuna Rufaa katika Mahakama ya Rufaa ya Tanzania ili kuipinga tuzo iliyotolewa na Baraza hili katika Maombi Namba 115 ya mwaka 2013 na Rufaa namba 33 ya Mwaka 2017.” Emphasis added According to the decree of the trial tribunal and the findings in Misc. Application No. 318/2021, I agree with Mr. Materu for the respondents that execution orders issued by the trial tribunal was pursuant to the decree sought to be executed. Thus, there is no illegality nor irregularity nor an error material to the merits of the case involving injustice, occasioned by the District Land and Housing Tribunal in the execution 10 orders which it issued. Therefore, this application is devoid of any ground of revision as prescribed under section 79 (1) (b) and (c) of the CPC (supra) and section 43(1) (b) of the Land Disputes Courts Act (supra). Consequently, I am of considered opinion that this application for revision is unfounded, frivolous and vexatious. I therefore dismiss it forthwith with costs. It is so ordered. Dated and delivered at Moshi this 28th day of November 2023. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 28/11/2023 11