HAMISI M

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI LAND APPEAL NO. 49 OF 2023 (Originating from Mise. Land Application No. 49 of 2023, District Land and Housing Tribunal for Babati at Babati) HAMISI M. FUNGAMEZA.................................................... APPELLANT VERSUS MWANAHARUSI M. MAGANGA........................................RESPONDENT JUDGMENT 3rd April & 17th April, 2024 D. C. KAMUZORA, J. Before Bagara Ward Tribunal (the trial tribunal), the appellant sued the respondent for trespass on his land namely Plot No. 1593 Block X situated at Negamsi area. The respondent denied to have trespassed into the appellant's land and alleged that her piece of land which is located adjacent to the appellant's land was separated by naturally grown trees. After hearing the parties, the trial tribunal decided in favour of the appellant and ordered that the previous boundaries be respected by the parties, also the beacon that was installed during the pendency of the Page 1 of 7 matter be removed. The respondent was also condemned to pay the costs of the suit. It is on record that the respondent attempted to challenge the decision of the trial tribunal vide Land Appeal No. 44 of 2020 before the District Land and Housing Tribunal (the DLHT) but the appeal was dismissed for want of prosecution. The appellant filed an application for execution before the DLHT (Mise. Land Application No.49 of 2023) seeking to enforce the decision of the trial tribunal. In responding to that application, the respondent raised two preliminary points of objection which are translated as follows: - 1. That, the application for execution is incompetent for emanating from Land Dispute No 2 of 2020 before the Ward Tribunal which was instituted without involving the commissioner for land and District Executive director who are responsible for surveying suit land. 2. That, disputed land is a surveyed land with certificate of tittle thus, the suit was supposed to be filed before the High Court for it also involves government institutions and that, the ward tribunal erred in entertaining land dispute No 2 of 2020. Page 2 of 7 It is on record that the DLHT allowed parties to argue the objections and invited the land surveyor to verify the boundaries of the land owned by parties herein. At the end, the DLHT formed view that the decision of the trial tribunal was inexecutable for failure to join necessary parties who are; the commissioner for land and Babati District Executive Director. It therefore invoked its powers of revision and proceeded to nullify the proceedings and the decision of the trial tribunal. The appellant was aggrieved with the decision of the DLHT hence he has preferred the instant appeal with three grounds of appeal as follows; 1. That, the tribunal chairman grossly erred in law and in fact for failure to observe the law in determining the Mise, application for execution as a result arriving in erroneous decision. 2. That, the decision is bad for being marred by irregularities. 3. That, the tribunal chairman decision is bad in law for lack of legal reasoning. The appeal was disposed of by way of written submissions. The appellant was represented by Mr. Joseph Masanja, learned advocate while Mr. Raymond Kim, learned advocate represented the respondent. Page 3 of 7 In his submission in support of the first ground of appeal, Mr. Masanja faulted the DLHT for acting on the opinion of land surveyor and invoking its revisionary powers without properly confining itself to the principles governing execution. He argued that re-negotiation of decree is illegal and incredible as a decree for recovery of land is a command to the judgment debtor. To buttress his arguments, the learned advocate for the appellant referred the case of Laemthong Rice Company Vs Principal Secretary Ministry of Finance [2002] TLR 389 and Shell & another Vs University of Dar es Salaam [2002] TLR 225. He invited for this court's intervention on ground that, the DLHT wrongly invoked its powers of revision contrary to the law. In reply, Mr. Kim argued that the DLHT rightly invoked its powers of revision suo motu since there was a need for the experts to be involved to solve the matter as the judgment of the trial tribunal was inexecutable. To support his argument the learned advocate for the respondent referred the case of Balozi Abubakar Ibrahim & another v Ms. Benandys Ltd & others Civil Revision 6 of 2015) [2015] TZCA 5 TZCA 5 in which the Court of Appeal revised the proceedings of the subordinate courts upon receiving a complaint from the applicants. Having considered the parties' rival submissions, the issue for determination is whether the DLHT properly invoked its powers of revision Page 4 of 7 by nullifying the proceedings and the decision of the trial tribunal in execution process. As stated before, the DLHT nullified the proceedings and the decision of the trial tribunal on account that the land commissioner as well as the executive director for Babati district were not joined as parties. I am of the settled view that the learned chairperson wrongly invoked the powers of revision at the stage of execution. The competency of the decision of the court/tribunal cannot be challenged in execution proceedings. Basically, application for execution is meant to execute the court/tribunal's decree or order and not to amend it. Regulation 23(5) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations GN No. 174 of 2003, gives direction on how objections during execution can be entertained. Logically, the objection referred under Regulation 23 are related to the execution process. The objections which were raised by the respondent regarding non-joinder of the land commissioner and the district executive director was challenging the competency of the decision to be executed. The same could properly be raised before the trial tribunal or on appeal and not in execution proceedings. In its decision, the DLHT indicated that it invoked its powers of revision in terms of section 35 (l)(c) and 36(1) of the Land Disputes Page 5 of 7 Courts Act [CAP 216 RE 2019], (hereinafter referred to as the LDCA). However, powers under section 35(l)(c) of the LDCA could only be exercised on appeal and not in an application for execution. Basically, the gist of the raised objections was to challenge the decision of the ward tribunal and the DLHT could not entertain any matter challenging the decision of the ward tribunal while sitting as executing tribunal. If any error was observed by the DLHT, it could have invoked revisionary powers under section 36(1) of the LDCA in separate proceedings and not in an application for execution. The said provision reads; A District Land and Housing Tribunal may call for and examine the record of any proceedings of the Ward Tribunal for the purpose of satisfying itself as to whether in such proceedings the Tribunal's decision has- (a) not contravened any Act of Parliament, or subsidiary legislation; or (b) not conflicted with the rules of natural justice; and whether the Tribunal has been properly constituted or has exceeded its jurisdiction. Looking at the scope in which powers of revision can be exercised as shown in the above quoted provision, the objections based on non­ joinder of parties refers the jurisdiction of the ward a tribunal and that could not be discussed or revised in an application for execution. Page 6 of 7 On the respondent's arguments in view of the decision in the case of Balozi Abubakar Ibrahim & another Vs. Ms. Benandys Ltd & others (supra) this court find the same distinguishable to the matter at hand. In that decision the execution itself was marred by serious illegalities and irregularities which are not the case in the instant matter. In this case, the respondent challenged the decision of the ward tribunal which could not be challenged in an application for execution. Determination of the first ground of appeal sufficiently disposes of the instant appeal. The decision of the DLHT is quashed and set aside, the matter is remitted to the DLHT for continuation before another chairperson with competent jurisdiction. The appeal is allowed with costs. DATED at BABATI this 17th Day of April 2024. D. C. KAMUZORA JUDGE Page 7 of 7