20151008 TZHC Mwanza

IN, THE .... ,,~-:-•>y ..

HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY

ATMWANZA .,_ MISCELLANEOUS LAND APPEAL NO. 146 OF 2014 (Appeal from Misc. Application No. 132 of 2013 of the District Land and Housing Tribunal MWANZA, . Originating from Butimba Ward Land Application No. 88/2013)

HARUNA ABDALLAH ............................................... APPELLANT 1. VEDASTO MAZIGO 2. DEO MTAKI 3. ROBERT NDOKEJI .................•.......... SPONDENT 4. SEMENI NAJIBV

JUDGMENT 8/10/2015&8/10/2015 M.R. GWAE, J.: The above named appellant was aggrieved by the District Land and Housing decision dated 15 th August, 2014. The appellant before the executing tribunal (DLHT) filed an execution for application against the above named rfft;!~ 1 respondents and the tribunal found that execution of decision of the Ward Tribunal at Butimba was overtaken by event and the same was accordingly struck out. Aggrieved by the D LHT's decision the appellant filed this appeal contending that the trial DLHT erred in law and facts by not awarding costs to the applicant now, appellant. The respondents 1n their joint reply to the Memorandum of Appeal stated that the DLHT was correct for not awarding the costs. At the hearing of this appeal both parties were unrepresented the appellant prayed for adoption of his appeal. All . respondent appeared in court contesting for being . wrongly joined in this matter (appeal) and before the . executing tribunal that is District . Land and Housing 1 ·. - , , . )J~ } . . . Tribunal. 2 Having looked at the record of the tribunals below that 1s District Land and Housing Tribunal of Mwanza and Butimba Ward Tribunal. I am of the following observations:- Firstly, that the 2 nd , 3 rd and 4 respondent were wrongly joined I say so for an obvious reason that in· the original Land Case No. 88 of 2013 they were not party except the 1st

respondent, Vedastus Mazigo who was not present at the hearing of this appeal. Following the evident fact that the respondents were joined in the execution stage and not in the trial stage, this is found to be leagally wrong. Secondly, the ground of appeal is obviously baseless 1n law as what the DLHT did was striking out the appellant's application for execution for being overtaken by event. Hence to award ·him (appellant) costs while he had in fact lost his execution application would to amount to 3 grant costs to dirty hands instead of clean hands, I think " ,,·. the respondents would be proper prisons to complain that G-~! they were entitled to costs and not the appellant. · Thirdly it is evidently clear that the appellant joined the 2 nd and 3 rd respondent in the execution merely because they are leaders of the respective local authority, this is legally wrong as they were not party to the trial tribunal proceedings. If the appellant sued one Vedastus Mazigo, 1st respondent in his individually capacity he cannot thereafter delivery of decision hold ·the office or any other persons who was not a party to the Land Case No. 88/2013 responsible. In light at the above observation and respondents contention, this appeal is entirely dismissed, proceedings before the DLHT are hereby nullified, if the appellant is still desirous to pursue an enforcement of his award, he is ~ 4. advised to lodge an execution application against the 1st ..-- , respondent. \._hJ No order as costs is made. Ordered accordingly. ~ M.R.~~ 8/10/2015 R. ll,,,,,,j~B.:QD explained. ~ I '....,1 •tI; I ,',{~ \ ' M.R.G-.. . . ,3 8/10/2015 5