Land Appeal No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 27884 OF 2023 (Arising from the decision of the District Land and Housing Tribunal for Mkuranga at Mkuranga in Land Application No. 47 of2021 before Hon. P.I Chinyeie, Chairperson.) HAMISI LIELEPWIKE MOMBOKA................................................ APPELLANT VERSUS HAFIDHU ATHUMANI (The Administrator of the Estate of the late ATHUMANI SAIDI MCHUCHULI)................. RESPONDENT RULING Date of Ruling: 30/5/2024 A. MSAFIRI, J, The appellant herein above was aggrieved by the judgment and decree of the District Land and Housing Tribunal of Mkuranga at Mkuranga District (herein the trial Tribunal) whereby the said Tribunal dismissed the application which was instituted by the appellant (then applicant). The appellant lodged this appeal by filing a Memorandum of Appeal basing on four (4) grounds of appeal which I have no intention to reproduce herein. The appeal was set to be argued by the way of written submissions whereby both parties complied with the schedule order. The submission in chief and rejoinder in support of the appeal was drawn and filed by Mr. Heriel Munisi, learned advocate while the reply submission was drawn and filed by Phales Mshana, learned advocate. // i While going through the submissions by the parties particularly the reply submission by the respondent, the court discovered that the respondent has raised a preliminary objection in the submissions. The objection was to the effect that this appeal is incompetent for the reason that the memorandum of appeal is accompanied by the judgment and decree of the impugned decision which each has different verdict. The respondent has averred that there is a difference of the verdict between the said judgment and decree whereby the judgment dismissed the application while the decree states that the application is granted with no order as to the costs. The objection was un-procedurally raised but since it was a point of law which goes to the root of the appeal itself, the court summoned the parties and direct them to address it on the obvious contradiction of the judgment and decree. Unfortunately, the parties being laymen, (at this stage they appeared in person, none of the advocate was present in court). The parties then left the matter for court's guidance. I have read the judgment and decree which the appellant is challenging by the way of appeal. The judgment shows that the appellant was the applicant in Application No. 47 of 2021 before the trial Tribunal. He was claiming to be the lawful owner of the suit land. After hearing of the evidence from the rival parties, the trial Tribunal found the Application to 2 have no merit and dismissed it with no order as to the costs. This is reflected at page 13 of the impugned judgment which states thus; "Maombi haya yametupiliwa mba/i, kita mdaawa atabeba gharama zake" Surprisingly the decree of the same decision does not reflect the above decision. The decree shows that the Application is granted with no order as to the costs. This is reflected at the second page of the said decree which states that:- " Maombi haya yamekubaliwa bila gharamd' Order XX Rule 6 (1) of the Civil Procedure Code, Cap 33 R.E 2019 provides as follows; The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties and particulars of the claim and shall specify clearly the relief granted or other determination of the suit, "(emphasis added). In the present appeal, the decree does not agree with the judgment and this is a fatal error as both the judgment and the decree are in-executable. The fatal error cannot be amended by the appellate court but only the trial Tribunal which is the author of the said judgment and decree. Having said so, and considering that the error is apparent on the face of record, I hereby invoke my supervisory powers invested in me under 3 Section 43(1) (b) of the Land Disputes Courts Act, Cap 216 R.E of 2029, and remit the case file to the trial Tribunal for the correction of the decree. The correction should be done within one month from the date of this Ruling. The appeal is struck out with no order as to the costs since the error did not emanate from either of the parties. 4