MPUNI SAFII

IN THE HIGH COURT OF THE UNITED REPUBLIC OFTANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL 24482 OF 2024 (Arising from the decision of Miscellaneous Application No. 141 of2023 of the District Land and Housing Tribunal for Kibaha, before Hon. Mbuga, dated 22nd July, 2024) BETWEEN HALFAN MOHAMED MPUNI as an Administrator of the Estate of the late MOHAMED HALFAN MPUNI............................. APPELLANT VERSUS MIRAJI RAJ ABU MLANGA............................................................................ 1stRESPOND WINIFRIDA KAYANZA PINDA.................................................................... 2ndRESPOND WINIFRIDA KAYANZA.................................................................................3rdRESPOND JUDGMENT 20/11/2024 & 04/12/2024 N.E. MAN DI A, J The Appellant above named, being aggrieved by the decision of the District Land and Housing Tribunal for Kibaha in Land Application No. 141 of 2023 dated 22nd July, 2024, hereby appeals against the said decision and order thereof on the following grounds: 1. That the Trial Chairperson erred in law and in fact by illegally departing from the judgment and decree she pronounced in the main Application No. 56/2016. 2. That the Trial Chairperson erred in law and in fact by 1 declaring the non - disputed plot to be the plot subject to execution which in effect contravenes the former order(s) and deprives the appellant and other beneficiaries the rights to the said disputed plot. 3. That the Trial Chairperson erred in law and in fact by confirming, legitimizing and siding with the actions of the Tribunal Broker which were not part of what he was required to perform as per the Execution order issued by the same Tribunal requiring to remove the trespassers from the disputed plot. 4. That the Trial Chairperson erred in law and in fact by intentionally and without any good reason agree with the Tribunal Broker without assuring herself on the correctness of the statements of the Broker assuming to execute the orders while he did not. The tribunal did not visit the area in dispute where the houses subject to execution are located but agreed with the broker who went to a non - disputed plot assuming to have executed the orders. 5. The Trial chairperson further erred in law and in fact by her failure to order the broker to go back and execute as per the Tribunal's orders as prayed by the counsel for the decree holder nor appointing another broker capable of heeding to the orders of the Tribunal. 6. That the Learned Chairperson erred in law and in fact by Legitimizing the statement/ submission, report and actions of the Tribunal Broker without considering that the one who knows the disputed plot is the Decree holder and that all former Applications described the 2 disputed plot being the one with the house where later on more houses were built. 7. That the Trial Chairperson erred in law and in fact by considering the report and statement / submission of the Tribunal broker which provides that he was shown and assured of the disputed plot by the villagers who are not parties to the case. 8. That the Trial Chairperson erred in law and in fact by entertaining a stranger who is not party to the suit, affording him hearing in perplex of the 1st respondent while in reality has long passed away and giving a ruling in favour of him while he is a stranger and not part of the case. 9. That the Trial chairperson erred in law and in fact by failing to record properly the decree holders complains as addressed by his advocate even after the counsel prayed to be recorded. The appeal was disposed by way of written submission. The appellant was by represented Mr. Aretas Kyara, learned counsel. The respondents' despite being duly served through publication they did not appear in or file any document hence, the appeal was heard ex parte against the respondents. In support of the first ground of appeal, Mr Kyara submitted that the trial chairperson illegally departed from judgment and decree she passed in Land Application No.56 of 2016 in favour of the appellant. That the decree barred the respondents, agents and their relatives from trespassing into the appellant land and ordered them to vacate forthwith and handover the disputed land to the appellant. The counsel submitted that on 15th June, 2023, the appellant filed Application No. 141 of 2023 for execution of the decree issued in Land Application No.56 of 2016 and ruling was delivered 26th March, 2024. That the Tribunal appointed NOLIC COMPANY & COURT BROKER to conduct the execution and was directed that the appellant was the legal owner of the disputed land measuring 20 acres located in Makabe- Mwetemo A Bagamoyo District in Pwani region. That, the respondents and other people not in connection with the appellant were ordered to vacate the disputed land from 13th March, 2024 and to remove all their properties and handover the land to the appellant. The counsel submitted further that the tribunal ordered the execution to be done after the respondents have been given 14 days' notice and the broker to give a report on how she executed the orders before 26th April, 2024. Mr. Kyara submitted further that the respondents have not obeyed the orders of the tribunal and that the court broker did not conduct the execution as ordered by tribunal instead, the court broker conducted the execution on another area which was also the property of the appellant but 4 was not in dispute. The counsel contended that, the action by the court broker to conduct the execution in contravention of the order of the tribunal was illegal. The counsel submitted that the location of the disputed land was expressly provided in the execution order. That the respondents have built their houses and mabanda ya mbuzi in the disputed area and the same are still there. The counsel submitted that the tribunal ordered for the demolition of the respondents' properties, remove the trespassers and handover the suit land to the appellant. Mr. Kyara submitted further that on 28th June, 2024, he wrote a letter to the tribunal chairperson complaining that he was dissatisfied with the court broker who intentionally and illegally failed to execute any of the orders given by the tribunal. That on 22nd July, 2024 the chairperson ruled on the appellants complain and agreed with the court broker who did not execute the orders of the tribunal. That the tribunal chairperson departed from her previous orders. The counsel referred to the case of RACHEL NANKWARE MGENI (AS THE LAWFUL ATTORNEY OF SANGIWA AMANI MGENI) VS. JOSEPHINE JOSEPH MAGELANGA, Execution No. 28 of 2022 and FORTUNATA EDGA KAUNGUA VS. GEORGE HASSAN KUMBURU Misc. Civil Appeal No. 71 of 2019, where it was held at page 7 and 8 that: 5 "Executing Court has no jurisdiction to criticize or go behind the decree, all that concerns it is the execution of the respective decree... The role of the execution court is to finalize the case, that is, to deal with the orders and decrees as decided by the trial court." He was of the view that execution proceedings must strictly comply with procedural rules and the specific terms of the decree and that actions beyond the court's orders are considered null and void. That the tribunal chairperson departed from the judgment and decree she delivered which has raised a serious legal and procedural concern. The counsel cited the case of TBL VS. EDSON DHOBE, Misc. Application No. 96 of 2006 as quoted in BURUHANI OMARI VS. VICTORIA REVELIAN Misc. Land Case No. 90 of 2020, at page 4 the CAT emphasized that: "Court Orders should be respected and complied with. The Court should not condone such failures. To do so is to set a bad precedent and invites chaos. This should not be allowed to occur. Always court should exercise firm control over proceedings." That the departure by the chairperson from the judgment and decree she made was illegal, intentional and breach of Article 13(1) and 107 A (2) (b), (d) and (e) of the Constitution of the United Republic of Tanzania. On the second ground of appeal, Mr. Kyara contended that the declaration by the trial chairperson that the undisputed plot be subject to o execution contravened the orders issued. That in Land Application No.141 of 2023, the land in disputed was clearly demarcated and there is no doubt as to the location of the disputed land. The counsel was of the view that the tribunal chairperson illegally concurred with the court broker who changed the judgment and decree of the tribunal. That the decree specifically stated that: "Sasa unaeiekezwa kwenda kwenye eneo la mgogoro kuwaondoa wajibu maombi na wote wasiomhusu mleta maombi na kuondoa mall yoyote ya wajibu maombi na ya wote wasiomhusu mleta maombi na kisha umkabidhi mleta maombi eneo hiio" That the court broker did neither go to the disputed land, remove the respondents, remove those who are not related to the appellant, remove any of the properties of the respondents nor did he hand over the disputed land to the appellant. That everything remained the same except for the payment of 3,200,000 which was made by the appellant as execution fee. That the court broker effected the execution in another area measuring 20 acres and pretended to execute the orders issued by the trial tribunal. Mr. Kyara contended that on 22nd July, 2024 when the matter came for ruling at the appellant's dismay the chairperson conceded with the court broker execution instead of the execution as per the judgment and decree of the 7 tribunal. That non-compliance by the court broker and blessings of the tribunal to such non-compliance constituted procedural and legal violations which has led to severe consequences to both the appellant and all heirs of the late Mohamed Halfani Mpuni. On the third ground of appeal, Mr. Kyara submitted that the execution order issued by the trial tribunal which directed for the removal of trespassers to the suit land was not supposed to be violated by the court broker. The tribunal grossly erred by clothing the court broker with its authority. That such actions lead to loss of credibility, abuse of court and erosion of trust. On the fourth ground, the counsel submitted that the tribunal chairperson failed to visit locus in quo which would have enabled her to confirm the actual location of the disputed land. That, the inaction by the trial tribunal undermined the tribunal's ability to make an informed decision. Mr. Kyara was of the view that had the tribunal chairperson visited locus in quo she would have seen the correct location of the disputed land instead of conceding to the deceit made by the court broker. That the failure by the trial tribunal to visit the locus in quo has affected the fairness of the trial. 8 On the fifth ground, Mr. Kyara submitted that after noting the irregularities of the court broker, he prayed to the tribunal chairperson to order the court broker to go back and conduct the execution as per the orders issued in the judgment and decree or alternatively a new court broker be appointed to execute the correct orders of the tribunal. That the prayers were rejected and they were not recorded as part of the tribunal's records. On the six and seventh ground, Mr. Kyara contended that during hearing of the complaint, the tribunal broker among other things informed the tribunal that he conducted the execution as ordered and, that the villagers know the disputed land and the case file showed the disputed land. The counsel was of the view that the averment made by the court broker cannot be taken as a judgment or decree of the tribunal. That execution of a decree is a legal process by which a court's judgment or decree is enforced or carried out. That the chairperson legitimized wrong statements and submission made by the court broker which raised a serious concern about the fairness and integrity of the chairperson. That contravention made by the court broker has denied the appellant of his land. 9 On the eighth and ninth ground, Mr. Kyara contended that the trial chairperson grossly erred by entertaining a stranger, NIA MIRAJI, who was neither party to the suit nor had letters of administration to represent the late MIRAJI RAJABU MLANGA. The chairperson afforded him hearing in perplex of the 1st respondent while in reality the 1st respondent has long passed away. The chairperson gave a ruling in favour of NIA MIRAJI regardless being a stranger and not party to the case. Finally, Mr. Kyara prayed for the following orders: - 1. quashing and setting aside the decision and order of the District Land and housing Tribunal in Miscellaneous Application No. 141 of2023 dated 22nd July, 2024; 2. the termination of the former tribunal broker and appointing another one to execute all the orders as were given in the judgment, decree and the Execution Application; 3. that Nolic Company Ltd & Court Broker returns TZS 3,200,000 to the appellant; 4. that the one who is capable to show the disputed Land is the decree holder and not otherwise; 5. permanent injunction against the respondents from entering or interfering in any manner whatsoever with the land of the appellant; 6. Costsand; 7. any other order(s) as the Honorable Court may deem fit and just to grant. io After going through submission made by Mr. Kyara, the question for determination is whether the appeal is meritorious. Having looked at the grounds of appeal submitted by Mr. Kyara, I am convinced that they are all interrelated except for the eighth ground which for the reason to be appreciated latter I will not discuss herein. The main complaint by the appellant is that tribunal chairperson has erred in law and fact by departing from the judgment and decree she pronounced in the Application No.56 of 2016 and confirming and legitimizing the action of the tribunal broker which were not part of what was required of her to perform as per the execution order issued by the tribunal. It is on record that on 15th June, 2023 the trial tribunal issued a judgment of Application No. 56 of 2016 which declared the appellant, HALFANI MOHAMED MPUNI as the lawful owner of the disputed land described as 20 acres located at Makaba- Mwetemo A, Mwetemo village, Kiwangwa Ward, Bagamoyo District in Pwani Region. That from the said date of judgment, the respondents, their agents or relatives were barred from trespassing the disputed land and were ordered to vacate the disputed land immediately and hand over the disputed land to the ii appellant as the administrator of the estate OF MOHAMED HALFANI MPUNI. It is also on record that after delivery of the said judgment and decree, the appellant filed an application for execution through Application for Execution No. 141 of 2023 in which NOLIC COMPANY LTD & COURT BROKER were ordered to go to the disputed land and evict the respondents and all others not related to the appellant and to remove all properties of the respondents and those not related to the appellant, and to hand over to the appellant the disputed land. This order was supposed to be implemented after lapse of 14 days' notice. Similarly, the court broker was ordered to submit report on how the execution was implemented before 26th April, 2024. Following this order, the court broker issued a 14 days' notice to the respondents and thereafter effected the execution. In her report to the tribunal, the court broker stated that she implemented the execution order however, the appellant who was the decree holder was not satisfied as he forced to be given a big land that it was not ordered in the execution. This situation prompted the applicant to complain to the tribunal chairperson that the execution order was not implemented and the respondents, those not related to respondents are still in the disputed land 12 and, that the respondent's properties and of those not related to them are still in the disputed land. In other words, the appellant was complaining that the execution order was not obeyed by the court broker. Following this complaint, the trial chairperson ruled in favour of the submission made by the court broker that she was convinced to see the execution process was done correctly because the disputed land was a forest area and there was a stop order to it which was in the case file. The trial chairperson was of the view that it was not proper for the execution to be implemented in another area. From the above facts and records, it is my considered position that the judgment and decree of the trial tribunal was very clear and what is disputed is how the decree was executed by the court broker. It is on record that the respondents and those not related to the appellant and, the properties of the respondent and of those not related to the appellant are still in the disputed land to which execution was supposed to be implemented. The land claimed by the appellant was described as 20 acres located at Makaba Mwatemo A, Mwatemo Village, Kiwangwa Ward, Bagamoyo District within Pwani Region. The land was also decribed in the application 13 for execution as bordered by one MAULID TAMUE in East, SAID BWIKU in South, HALFANI MPUNI in West and MUHODE MKALI in North. This description in my view, would have enabled the court broker to have a correct and proper location of the disputed land before conducting the execution. It is my considered position that since the appellant who was declared to the lawful owner of the land in dispute was not satisfied with the execution process on account that the court broker did not adhere with the execution order issued by the trial chairperson, the tribunal was supposed to visit the locus in quo with the parties and satisfy itself to the correctness and propriety of the execution process conducted by the said court broker. Alternatively, the trial chairperson would have appointed another court broker instead of conceding with the report and submission made by the said court broker. It will be surprising if the appellant who was the applicant in Application No. 56 of 2016 and was declared to be the lawful owner was not aware of the land he claimed to be the owner. The executing officer was duty bound by the order issued and she was supposed to be led by the declared lawful owner as he should have known better his land prior to the filing of Application No. 56 of 2016. It is equally 14 awkward if at all the court broker ignored the execution order on reason that villagers knew the land better than the appellant himself. Having said so, I should admit here that I have no problem with the judgment and decree delivered in Application No. 56 of 2016. However, i find some irregularities in the execution process and to be more specific with the ruling delivered on 22nd July, 2024 following the appellant's complaint to the chairperson. Therefore, I hereby allow the appeal with costs, quash and set aside the decision and order of the District Land and Housing Tribunal in Application No. 141 of 2023 dated 22nd July, 2024. The trial chairperson is hereby ordered to appoint another court broker to execute the order issued in Land Application No. 56 of 2016. It is so ordere^RT'^ ip' q.E MAN DI A * JUDGE 12/2024 15