hussein hamis tokea administrator of the late omari hamis mhango vs paulo zephania mshomba administrator of the estate of the late karaine mshomba 2019 tzhc 2139 4 dec

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF ARUSHA AT ARUSHA LAND REVISION NO. 2 OF 2018 (From the Decision of the District Land and Housing Tribunal of Arusha District at Arusha In Land Application No. 341 of 2014) HUSSEIN HAMIS TOKEA (Administrator of Estate of the Late OMARI HAMISI MHANGO.............................................. APPLICANT VERSUS PAULO ZEPHANIA MSHOMBA (Administrator of the Estate of the late KARAINE MSHOMBA).......................................................RESPONDENT KARAINE MSHOMBA RULING 27/11/2019, 4/12/2019 MWENEMPAZI, J. The applicant complained by way of letter to the Judge in charge of High Court which letter was received at the High Court Registry Arusha on the 23rd March, 2018. The gist of the complaint was that the respondent herein filed Application for Execution, No. 341 of 2014, in the District Land and Housing Tribunal seeking to execution of the decision of Muriet Ward Tribunal in Land Application No. 137 of 2009 between Karaine Mshomba and Omari Mhango. According to the applicant, it was wrong for the District Land and Housing Tribunal of Arusha to execute the decision as the same was quashed by the same forum in Land Appeal No. 64 of 2010. In the letter of complaint, the applicant submitted that it is true that the Respondent successfully sued the Applicant's father in the Muriet Ward Tribunal in Application No. 137 of 2009. The claim was for a farm of two (2) acres. However, the applicant herein filed appeal in the District Land and Housing Tribunal of Arusha at Arusha after his father had passed away and hime undergoing necessary legal procedure of being appointed as and administrator of the estate of the late Hamis Muhango. The appeal was registered as Appeal No. 64 of 2010. The appeal was allowed and the decision of the Trial Ward tribunal was set aside. The respondent filed an appeal in the High court and it was registered as Land Appeal No. 22 of 2013. According to the letter by the applicant the appeal was dismissed and the standing decision is that of the District Land and Housing Tribunal of Arusha. At this point, parties have differed in understanding and I think that is where the dispute is coming into existence. The Respondent has filed a reply letter, of course, I had to relax rules for him on how to present his case so that I can afford him the right to be heard. He filed a reply letter to explain himself. The respondent referred the court to the decision in the appeal at the High Court. He submitted that the high court ruled that the appeal in the District Land and Housing Tribunal of Arusha was a nullity as it was filed out of time. That the appeal was struck out on the reason it emanated from a nullity. I have read the record of the Ward Tribunal of Muriet, District Land and Housing Tribunal of Arusha and the High Court of Tanzania at Arusha. In the Ruling of Hon. Mugasha, J(as she then was) she observed as follows, I quote:- "As earlier pointed out, Judgem ent o f the W ard Tribunal was delivered on 24/06/2009 w hile appeal to the D istrict Land and Housing Tribunal was file d on 04/08/2010 that is, after expiry o f406 days from the date o f the Judgem ent sought to be appealed against This contravenes section 20(1) o f the Land D isputes Courts Act, Cap. 216 R.E.2002 which provides: - "Every appeal to a D istrict Land and Housing Tribunal sh a ll be file d in the D istrict Land and Housing Tribunal w ithin forty-five days a fte r the date o f the decision o r order against which the appeal is brought" Therefore; the appeal in the D istrict Land and Housing Tribunal was tim e barred because the appellant in the D istrict Land and Housing Tribunal (now the respondent) d id not seek and obtain leave to file the sa id appeal out o f tim e. In that regard; the Judgem ent and Decree in A ppeal entered by the D istrict Land and Housing Tribunal are a nullity. In the prem ises; since the appeal a t hand stem s from a nullity, consequently; there is no proper appeal known in law before th is Court. Therefore, the purported appeal is struck out. In that respect, the decision o f the M uriet W ard Tribunal in Land Application No. 137 o f2009 stands to be binding to the p arties unfitproperly challenged." 3 The record of the District Land and Housing Tribunal of Arusha, shows that the applicant in this application made an attempt to apply for extension of time to pursue an appeal against Muriet Ward Tribunal decision. The application was registered as Miscellaneous Application No. 308 of 2016, and the applicant was Hussein Hamis Tokea. The respondent was Karaine Mshomba. However, the person appearing on his behalf in the High Court is Paul Zephania Mshomba, an administrator of the late Karaine Mshomba. That application No. 308 of 2016 was dismissed by the Ruling dated 30th January, 2017 on the reasons that no sufficient cause was shown by the applicant. Under the circumstances, the applicant in this application has wrongly complained on the application of execution made by the Respondent in Application No. 341 of 2014. The proceedings and orders in the application for execution were correct and legal. The reasons are clear in the decisions of the High court. Without challenging the decision of the Muriet Ward Tribunal the applicant has no basis to fault the execution of the decision. For the reasons the application is dismissed. Since it is the court which called the record for revision suo moto, I order that each party will bear his own cost. It is ordered accordingly. T. MWENEMPAZI JUDGE 4/12/2019