13136 of 2024 scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND REVISION NO. 13136 OF 2024

BETWEEN HAWA JUMA ZAKUMBA................................................. APPLICANT

VERSUS ASHA JUMA ZAKUMBA................................................................... 1stRESPONDEN MOHAMED ALI NOORAN...............................................................2ndRESPONDEN MALINYI SECURITY COMPANY LIMITED.......... 3rd RESPONDENT

RULING Last Order: 26/9/2024 Date ofJudgement: 19/11/2024 A. MSAFIRI J, This is an application for revision within which the applicant is moving this court to revise the proceedings of District Land and Housing Tribunal for Temeke at Temeke (herein as the DLHT) in Land Application No. 243 of 2023 and an order for eviction made on 30/5/2024 by Hon. Kiiza, Chairperson and declare that the proceedings and its orders are unlawful. According to the records, the brief background of the dispute is that the applicant and the 1st respondent were declared joint legal owners of the suit property described as House No.2, Plot No. 75 Block A situated along Bahati i Street in Temeke Municipality, Dar es Salaam, by way of inheritance from their late father Juma Zakumba in Land Application No.04 of 2005. That, due to the dispute between the applicant and the 1st respondent, the suit property was sold by order of the DLHT in the public auction with the proceeds to be equally divided between them. That the 2nd respondent was the purchaser who bought the suit property in an auction. However, that the 1st respondent challenged the legality of the sale and instituted Misc. Application No. 172 of 2019 against the applicant and one Msolopa Investment Company Ltd in which the sale was nullified by Temeke DLHT. That at the time, the suit property was under possession of the two sisters who co-own the

property. It is on record that from there the 1st respondent as decreeholder in Misc. Application No. 172 of 2019, filed Misc. Application No. 243 of 2023 against the 2nd and 3rd respondents leaving out her sister Hawa Juma Zakumba (the applicant), seeking the order to evict the 2nd and 3rd respondents from the suit premises in which the eviction order against the 2nd and 3rd respondents was granted by Temeke DLHT. The applicant, who was not party to Misc. Application No. 243 of 2023 and having interest to the suit property, nocked the doors of this court by way of revision seeking for the court orders that the proceedings and order of DLHT in Land Application No. 243 of 2023 are 2 unlawful. The hearing of this application was conducted through written submissions. The submissions in chief and rejoinder were drawn and filed by Mr. Aliko Harry Mwamanenge, learned Advocate, and the reply submission was drawn and filed by Mr. Fraterine Munale, learned Advocate. Both parties complied with this court's scheduling order. In support of the application, Mr Mwamanenge argued that the applicant was not a party in Application No. 243 of 2023, he stated that it was done purposely so that the applicant could lose her right and interest in the disputed premises. He insisted that the applicant was co - decree holder and she was the one who instructed the 3rd respondent to safeguard

the premises pending the determination of applications. The counsel for the applicant argued further that the applicant's right to be heard was deprived thus the DLHT violated the principle of natural justice. He referred to Article 13(6) of the Constitution of the United Republic of Tanzania 1977 and the case of DPP vs S.I.Tesha [1993] TLR 237 and Abbas Sherally and Another vs Abdul Fazalboy, Civil Application No. 33 OF 2002. He also insisted that the applicant was a necessary party in the Application No. 243 of 2023. To emphasize the issue of the necessary party, he cited the case of Abdulatif Mohamed Hamis vs Mehboob Yusuph 3 Othman & Another, Court of Appeal of Tanzania Civil Revision No. 6 of 2017. The counsel for the applicant submitted on the ground of illegality which is on the face of the record in Application No. 243 of 2023. He argued that the execution of the land decree is governed by Part V of the Land Disputes Courts (The District Land and Housing Tribunal) Rules GN No. 174 of 2003. That under Regulations 23(3) it is provided that the judgment debtor must comply with the decree or order has to be executed within a period of 14 days. He stated that a decree cannot be altered anyhow during execution except by the superior court acting on appeal or in revision, to cement the position cited in the case of National Microfinance Bank Another vs Emmanuel Kasala Evarest

& Others, Land application No. 13 of 2021. He went further and argued that in Misc. Application No. 172 of 2019 there was an order to set aside the sale of the disputed land. The 1st respondent filed execution through Application No. 243 of 2023 aimed to evict the 2nd and 3rd respondents in the suit premises without the involvement of the applicant as part of the suit while in Misc Application No. 172 of 2019, the DLHT declared the applicant and the 1st respondent joint owners of the suit property and issue an eviction order against the 2nd and 3rd respondents. Mr Mwamanenge argued that the DLHT granted the sought reliefs and 4 added that the suit property be handed to the 1st respondent. He said that this relief of handing suit property to the 1st respondent was not requested by 1st respondent. To support his point the counsel cited the case of The Lahore Bank Limited vs In Liquidation vs Ghulam Jilani (1924) LL.R V Lah, where the court held that an execution court has no jurisdiction to criticize or go behind the decree. He contended further that Misc Application No. 243 of 2023 was contrary to the scope and order of the decree in Misc. Land Application No. 172 of 2019 by issuing an eviction order. That this was contrary to the judgment and decree in Misc. Application No. 172 of 2019 and Application No.4 of 2005. The counsel prayed the court to revise the proceedings and

order of DLHT in Misc. Application No. 243 of 2023 and set aside the said decision with costs. In reply, Mr. Munale stated that it is true that the applicant was not a party in Misc. Land Application No. 243 of 2023 where the 1st respondent prayed to evict the 2nd and 3rd respondents from the suit land. He stated that the applicant would not lose her right since she is a co-decree holder of Land Application No. 04 of 2005. He contended further that the right to be heard was accorded, and there was no formal application to join the necessary party and in circumstance, the 5 applicant cannot claim she was denied the right to be heard. He also submitted that the judgement in Land Application No.04 of 2005 recognised both applicant and 1st respondent as a co- owner of the suit property. He was of the view that this ground lacks merit. On the second ground of illegality, the counsel for the respondents submitted that in Misc Land Application No. 243 of 2023 the DLHT only dealt with eviction of second and third respondents who refused to deliver possession to the first respondent. He is of the view that this ground is supposed to be dismissed for lack of merit. In rejoinder, Mr. Mwamanenge restated his submission in chief, he prayed the court to allow the application with costs. Having considered the submission of both parties, the issue for determination is whether the application

for revision has merits? This application is being brought under Section 43 (1) b and (2) of the Land Disputes Courts Act [Cap 216 R.E 2019] and Section 95 of the Civil Procedure Code [Cap 33 RE 2019] Under the above provisions, this court is vested with revisional powers of the decision and/ orders of the DLHT. As observed earlier, the applicant and 1st respondent were declared the joint owners of the suit property in Land Application No. 4 of 2005. The suit property was sold through auction to the 2nd respondent, the 6 respondent refused to receive the purchase money and challenged the sale in Misc. Application No. 172 of 2019 before the DLHT as the result the DLHT nullified the sale. Then the 1st respondent filed Misc. Application No. 243 of 2023 against the 2nd and 3rd respondents leaving out the 1st applicant seeking the order to evict the 2nd and 3rd respondents from the suit property. I subscribe to the argument by the counsel for the applicant that the applicant is co-owner of the suit premises hence she has interest in the said house. To safeguard her rights, she was supposed to be joined in Misc. Land Application No. 243 of 2024, as the result her right to be heard was deprived by DHLT, an act which is contrary to the law. The Court of Appeal of Tanzania has on several occasions held that a denial of the right to be heard would vitiate proceedings. In the case of

Mbeya Rukwa Auto Parts Transport Limited vs Jestina George Mwakyoma, (2003) TLR, DPP vs Sabina Tesha & 2 others (supra) to mention a few. In said case the Court considered the English Case of Ridge vs Baldwin (1964) AC and emphasized that:- ” In this country, natural justice is not merely a principle of common law; it has become a fundamental constitutional right. Article 13 (6) (a) includes the right to be heard among the attributes of equality before the law..." AUs- 7 Therefore, the applicant was supposed to be joined in Misc. Application No. 243 of 2023 because she is co-owner of suit property as per the judgement of DLHT in Application No. 04 of 2005. This ground has merit. On the second ground of illegality which was in the face of record of Misc Application No. 243 of 2023, the DLHT power to execute is governed by Part V of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, (supra). In the case of Fortunata Edgar Kaungua vs George Hassan Kumburu, Misc. Civil Appeal No 71 of 2019, discussing the role of the execution court, the Court of Appeal quoting with approval the Indian decision of The Lahore Bank, Limited, In Liquidation v. Ghulam Jilani, (1924) I. L.R. V Lah. 54 said: "...executing Court has no jurisdiction to criticize or go behind the decree, all that concerns it is the execution of the respective decree. And, if the decree should be

annulled, that is not the function of the executing court.." The DLHT as executing court in Misc. Land Application No. 243 of 2023 ordered the 2nd and 3rd respondents to vacate from the suit premises and to handle the suit premises to the 1st respondent, the order went beyond what was prayed for by the 1st respondent in Misc. Land Application No. 243 of 2023 as per the chamber summons. In that, the 1st respondent, 8 prayed to evict the respondents in the suit premises, the DHLT went beyond and ordered the disputed property to be handled to the 1st respondent. This was contrary to the judgement and decree in Misc Application No. 172 of 2019 and Land Application No. 04 of 2005. The order excluded the applicant while she is co-owner of the suit premises. This ground also has merit. From the foregoing, I find that there was an error material apparent in the proceedings and the order made by the DLHT in Misc. Application No. 243 of 2023 and I hereby invoke my revisional powers under Section 43 of the Land Disputes Courts Act and quash the proceedings and set aside the ruling and drawn order in the said Misc. Application No. 243 of 2023. The application is granted with costs. Any interested party is at liberty to institute fresh application properly before the competent court according to the law. It is so ordered. A. MSAFIRI

JUDGE 19/11/2024 9