Ibrahim Ayoub Scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 26905 OF 2024 (Originating From Misc. Application No. 39 of 2024, Mkuranga District Land and Housing Tribunal) IBRAHIM AYOUB MACHINGA (Administrator of the Estate of the Late Athumani Bakari Mzenga)........................................................ 1stAPPELLANT SELEMANI BAKARI MZENGA............................................................................... 2NDAPPELLANT ABDALLAH SAID MATUMBO............................................................................... 3rdAPPELLANT SALUM SAID KAMENYA........................ 4th APPELLANT MOHAMED TONONDO......................................................................................... 5thAPPELLANT SAIDI MKWENGO................................................................................................ 6thAPPELLANT VERSUS MUHAMARAMI ABDALLA MZENGA (Administrator of the Estate of the late Abdallah Mwinshehe Mzenga).......... ..................... RESPONDENT JUDGMENT 29/11/2024 to 5/12/2024 E.B. LUVANDA, J In the memorandum of appeal, the Appellants named above, raised two grounds to challenge the order of the Tribunal which dismissed an application for execution mounted by the First, Second, Third, Fourth, Fifth and Sixth Appellants above named, for reason that there was no executable decree. The two grounds, goes thus: One, the Appellants were not given the right to be i heard; Two, Honorable R. Mwakibuja erred in holding that there was no judgment that entitled the Appellants to the disputed area. Prof. Safari learned Counsel for Appellants submitted in respect of ground number two, that the genesis of the matter commenced on 25/08/2024 where Honorable R.L. Chenya, Chairman of the Tribunal in Application No. 13 of 2016 between the Appellants and the Respondent held that the Respondents are ordered to vacate from the suit land, citing page 14 of the judgment. He submitted that thereafter in Land Appeal No. 26247 of 2023 between the Appellants and the Respondent, Honorable Madame Justice A. Msafiri allowed the appeal, citing the verdict of the judgment of this Court at page sixteen. He submitted that in view of the holding of Honorable Justice Msafiri, the Appellants were lawful owners of the disputed area and were subsequently entitled to make the application for execution before the Tribunal. Arguing for ground number one, the learned Counsel for Appellants submitted that it is common ground that one of the fundamental rules of natural justice is audi pattern alteram that is nobody should be condemned unheard. He submitted that this principle is epitomized in Article 12(6)(a) of the Constitution of the United Republic of Tanzania, 1977 (as amended). Also citing Kilala vs Mwanza District Council (1973) LRT No. 19. He submitted that on the 2 account of the reasons advanced in the first ground of appeal, argued that the Appellants were not given the right to be heard. In reply, Mr. Abdallah Ally Mbwana learned Counsel for the Respondent prefaced his arguments by making reference to the judgment of Shaurila Ardhi Na. 72/2015 delivered by the Bupu Ward Tribunal. He submitted that sometimes in 2015 occurred the dispute of ownership between the Respondent and Omar Bakari, Athumani Bakari and Msafiri Bakari, where the Bupu Ward Tribunal conducted the trial and declared the ownership of the dispute land in favour of the Respondent herein and the heirs of the their late father. He submitted that the Ward Tribunal advised those who bought the land should claim their rights from those who sold the land to them on account that the sale was illegal. He submitted that there was no appeal, in record, filed to challenge the decision of the Ward Tribunal. He submitted that since there was no record of the District Tribunal quashing the decision of the Ward Tribunal, argued that the ownership of the dispute land remained to the Respondent and not Appellants. He submitted that the issue in Land Application No. 13 of 2016 before R.L. Chenya, was whether the Appellants herein trespassed the suit land, citing page five of the Tribunal's judgment. He submitted that the cause of action in the 3 Land Application no. 13 of 2016 whose decision was quashed by Hon. A. Msafiri, J. in the Land Appeal No. 26247 of 2023 was trespass and not ownership, citing page sixteen of the judgment of this Court. He submitted that there is no judgment that entitle the Appellants to the disputed area, for the explanation that the issue of the ownership was already solved in the Ward Tribunal whose decision was not challenged. For ground number two, the learned Counsel submitted that, Honorable Mwakibuja heard the parties and came up with the order of strucking out the application. On rejoinder, the learned Counsel for Appellant submitted that an argument by the Appellant that the cause of action leading to Land Appeal No. 26247 of 2923 was trespass and not ownership is totally unfounded, for explanation that in Application No. 13 of 2016 Honorable Chenya recorded that the Appellants had prayed for the Respondent to be declared the lawful owner of the suit land and the Appellants to be ordered to vacate the premises. He submitted that the cause of action in Application No. 13 of 2016 was ownership of the suit land. For ground number two, the learned Counsel insisted that the Appellants were not given the right to be heard. 4 On my part, this appeal does not entail drawing a long argumentation. In the Application No. 13 of 2016 where the Respondent sued the Appellants, the Tribunal ruled that the suit land of six acres located at Tundu Village, Bupu Ward in Mkuranga is a property of the late Abdallah Mwishehe Mzenga whose estate is administered by the Respondent. And the Appellants were ordered to give vacant possession. Thereafter an award was accordingly extracted to reflect this verdict. In Land Appeal No. 26247 of 2023, this Court in its judgment at page sixteen made the following verdict, 1Having said so, I allow the appeal with costs. The judgment and decree of the District Land and Housing Tribunal of Mkuranga District in Application No. 13 of 2016 are hereby quashed and set aside' And a decree of appeal was extracted in replica of the above verdict. This judgment and its accompanying decree in appeal, it is what the Appellants presented at the Tribunal vide an application for execution Misc. Application No.39 of 2024 seeking the Tribunal to assist them on the following mode, Attachment of the disputed properties that is lands located at Kijiji cha Tundu Lubane, BURU, Mkuranga' In the impugned order, the learned Chairperson ruled, Maombi ya utekeiezaji yametupiliwa mbali kwa gharama kwa sababu hakuna hukumu iiiyotamka kuwa wa/eta maombi wakabidhiwe eneo ia mgogoro' 5 On my perspective, I support the order of the learned Chairperson. The judgment and decree of this Court is inexecutable, in a sense that it ended up quashing the judgment and setting aside the award of the Tribunal which declared that the suit land is a property of the late Abdallah Mwishehe Mzenga whose estate is administered by the Respondent. Nowhere in the judgment of this Court where the Appellants were declared to be lawful owner or having any share to the suit property. To my view, in order for one to mount into execution of a decree or order, he must indicate how the specific reliefs decreed in his/her favour in the said decree subject for execution. In other words, the application for execution should tally with what was decreed. It is not the law that the Tribunal should venture into making assumption of what was adjudged or decreed. According to Order XXXIXX rule 35(2) of the Civil Procedure Code, Cap 33 R.E. 2019 with marginal notes contents of a decree in appeal, provides, I bold the relevant part, The decree shall, contain the number of the appeal, the names and descriptions of the appellant and respondent and a dear spedfication of the reliefgranted or other adjudication made' 6 Herein, what the Appellants are asking the Tribunal to execute by way of attaching the suit property, was not among the reliefs which were clearly and specifically granted to or adjudged in their favour by this Court. The nature of the decree in appeal passed by this Court does not give or confer any right in favour of the Appellants worthy to be warranted into execution in furtherance of taking control of the suit land. Therefore, the learned Chairperson was justified to strike out the application for execution. Ground number two, the same cannot take me long deliberating on it, the records of the Tribunal speak louder. On the coram dated 25/09/2024 the records of the Tribunal reflect that the learned Chairperson, had made the following remarks and asked parties to comment on it, Shauri hili ni ia maombi ya utekeiezaji, iakini hakuna popote panapoeieza kuwa waieta maombi wakabidhiwe eneo ia mgogoro. Maombi Na. 13/206 ya DLHT-Mkuranga hayakuwa na maombi kinzani' Thereafter parties were recorded to had addressed the Tribunal in the following order of speech, Mleta maombi Na. 2: Sisi tuiishinda Mahakama Kuu i Mjibu maombi: Nimeandika barua ya kukata rufaa mahakama ya Rufaa Amri: Maombi ya utekeiezaji yametupiHwa mbali kwa gharama kwa sababu hakuna hukumu Hiyotamka kuwa waleta maombi wakabidhiwe eneo ia mgogoro' Therefore, the argument of the learned Counsel for Appellants that his clients were denied the right to be heard, is misleading and is not supported by the records. That said, the appeal is devoid of merit whatsoever The appeal is dismissed with costs. E.B. LUVAN JUDGE \ 05 /1^/2024 Judgment delivered in the presenc^ of Respondent, First, Third, Fourth, Fifth, Six Appellants and in the absence of ^Second Applicant who is reported sick. J JuVANpT^ E.B. JUDGE , 05 /12/2024 V 8