jaffer mohamed beda another vs henry paulo muro 2023 tzhclandd 16891 14 september 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 201 OF 2023. (Arising from thejudgment ofthe District Land and Housing Tribunal for Kinondoni District at Mwananyamaia in the Application No. 457of2012 dated OJ^ May, 2023) JAFFER MOHAMED BEDA APPELLANT MAJEE SEIF 2^° APPELLANT VERSUS HENRY PAULO MURO RESPONDENT Date oflast Hearing: 14/09/2023 Date ofJudgment:14/09/2023 JUDGMENT I, ARUFANI,J This judgment Is for the appeal filed In this court by the appellant to challenge the decision of the District Land and Housing Tribunal for Kinondoni District at Mwananyamaia (hereinafter referred as the tribunal) delivered in Application No. 457 of 2012 dated 03''^ May, 2023. The Impugned decision declared the respondent Is a lawful owner of the land on Plot No. 140 Block''R" MagomenI Area of Kinondoni Municipality which was In dispute and the appellants were ordered to vacate from the disputed land. The appellants were aggrieved by the decision of the tribunal and filed the Instant appeal in this court basing on the following grounds: - 1 1. That the Honuorable Chairperson erred in iaw and fact for entertaining a daim for the recovery of a iand soid to the appeiiant by Nationai Housing Corporation (Vendor) without thejoinder ofthe Vendor as a necessary party. 2. That the Honourabie Chairperson erred in iaw and fact for wrongiy deciaring the respondent as the owner of the disputed iand whiie Nationai Housing Corporation who was the Vendor ofthe disputediand was notjoined asa necessary party. 3. That the Honourabie Chairperson erred in iaw and fact for erroneousiy determining the issue of ownership of the suit property in favour of the respondent based on the property soid whiie the deed of transfer instrument was executed in respect ofPiot No. 140 which covers House No. 20A and 20B. 4. The Honourabie Chairperson erred in iaw and fact for erroneousiy determining the ciaims of ownership of the ianded property owned by Saui Pauio Muro instituted by Henry Paui Muro in his personai capacity. When the appeal came for mention before this court today, 14"^ September, 2023 the appellants were represented by Ms. Beatrice Godfrey, iearned advocate and the respondent was represented by Mr. Atley Thawe, learned advocate. The counsel for the respondent told the court that, after going through the grounds of appeal filed in the court by the appeiiant and consulted their client, they have found it is prudent for them not to contest the appeal. He said they have come to the stated decision after seeing that, ground number four of the appeal shows the appellants are challenging the decision of the tribunal basing on the ground that the respondent Instituted the Application No. 457 of 2022 In the tribunal In his personal capacity against the appellants claiming for the landed property owned by his late father Saul Paulo Muro. He said the respondent ought to have Institute the mentioned application In the tribunal In the capacity of being legal representative of his late father, Saul Paulo Muro and not In his own capacity. He said after seeing merit In the said ground of appeal they have advised their client and agreed they should not contest the appeal. He therefore prays the court to allow the appeal without costs. The counsel for the appellants said they are not objecting the prayer of the counsel for the respondent of not contesting the appeal but prayed the court to award them the costs of the appeal on the ground that the mistake committed by the respondent was so obvious. In his brief rejoinder the counsel for the respondent reiterated his prayer In chief and prayed the court to waive costs of the appeal as they have decided to avoid to contest the appeal at Its earlier stage. He said when the respondent was Instituting the application In the tribunal, he was not aware of the Impact of Instituting the application In his own capacity. At the end he prayed the court to use its discretionary power to waive granting costs in this appeal. After seeing the counsel for the respondent has informed the court that they are conceding to what is stated in the fourth ground of appeal, and they are not contesting the appeal, the court has failed to see any reason which can make it desist to allow the appeal filed in the court by the appellants. The court has arrived to the above finding after seeing the copy of the judgment and decree of the tribunal attached to the petition of appeal shows the land which the respondent was praying to be declared is the lawful owner, was said it was owned by the respondent's late father. Since the counsel for the respondent has informed the court that they have found the respondent was not required to institute the application of claiming for the stated landed property in his own capacity, but in the capacity of being legal representative of the estate of his late father, the court has found there is no need of pressing to continue with hearing of the appeal as the stated ground of appeal is sufficient enough to dispose of the appeal. That makes the court to find the appeal of the appellants deserves to be allowed. The court has considered the prayer of costs of the appeal made to the court by the counsel for the appellants and find that, as the respondent has decided to refrain to contest the appeal at the very early stage of the appeal and before going to the hearing of the appeal, It Is proper and appropriate for the Interest of justice to make no order as to costs In the appeal. In the premises the appeal of the appellants Is hereby allowed, the proceedings of the tribunal In the Application No. 457 of 2012 Is hereby nullified and the judgment together with Its decree are quashed and set aside. Each party to bear his own costs In this appeal. It Is so ordered. Dated at Dar es Salaam this 14"^ day of September, 2023 f,NT (/» I. ArufanI -X n 2 O JUDGE c 14/09/2023 % Court: £S Judgment delivered today 14'^ day of September, 2023 In the presence of Ms. Beatrice Godfrey, learned advocate for the appellants and In the presence of Mr. Atley Thawe, learned advocate for the respondent. Right of appeal to the Court of Appeal Is fully explained. Vj \r\ n o c I. Arufani s M X JUDGE 14/09/2023 « * V " ,v.> 0 y'