james mwandu vs alois alois lipwasia 2022 tzhc 10522 31 may 2022

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MOROGORO)

AT MOROGORO CIVIL APPEAL NO. 38 OF 2021 (Arising from Uianga District Land and Housing Tribunai in Misc. Appiication No. 15 of2020)

JAMES MWANDU APPELANT

VERSUS ALOIS ALOIS LIPWASIA.... RESPONDENT

JUDGEMENT Hearing date on: 11/05/2022 Judgement date on:31/05/2022 NGWEMBE,J; This land appeal Is against the judgement and decree of Uianga District Land and Housing Tribunal delivered on 25^^ February, 2021. The appellant being aggrieved by the said decision, preferred an appeal to this court grounded with four (4) grievances. I need not to recite them herein for reasons to be stated later on. In brief and without going into details, the respondent commenced a proceeding against the appellant in Usangule Ward Tribunal over 20 acres of land. Land dispute No. 05/2020 was preferred by the respondent claiming 20 acres of land, situated at Kalengakero Village, in Usangule Ward within Ulanga District. After determination of the suit, the Ward tribunal pronounced the respondent as lawful owner of the disputed land, followed by an order of vacant possession in faviour of the respondent. On the strength of that decision from Usangule Ward tribunal, the respondent filed Misc. Application No. 15 of 2020 before Ulanga District Land and Housing Tribunal for execution. He Prayed for two orders as quoted hereunder;- 1. That respondent, his agents, employees, assistants or anyone to vacate on his land as ordered by Usaguie Ward Tribunal in Land case No. 05/2020 of2ff^ March 2020.

2. That Uianga District Land and Housing Tribunal appoints court broker for the execution ofthe orders by Usanguie Ward Tribunal. The application was heard on 12^^ October 2020 and both parties were afforded an opportunity to be heard. The respondent enjoyed the legal services of learned advocate Pascal Luhengo. It is on record that the respondent was pronounced lawful owner in land case No. 05 of 2020 before Usangule Ward Tribunal. In turn the appellant responded that, he was unaware of the land case No. 05 of 2020 before Usangule Ward Tribunal and that he is aggrieved with that decision because he was not given right to be heard. After hearing both parties, the Chairperson conceded to the prayers of the respondent and granted them. The appellant was aggrieved with that execution order, hence, preferred an appeal to this court. When this appeal came for hearing on 11/05/2022, both parties were unrepresented. The respondent informed this court that he has filed four preliminary objections against this appeal as follows:- 1. That this appeal is bad in law as It Is contravening the dictates of section 38 (2) of the Land Disputes Courts Acf CAP 2016 R.E 2019.

2. That the application Is bad In law as It Is not annexed with decree of the said Misc. application No. 15 of 2020 which Is appealed In this honourable Court.

3. That the respondent never was a party to the said Misc. Application No. 15/2020.

4. That the appeal Is overtaken by event as the execution of Application No. 15 of 2020 which the parties In this appeal were also parties was effected on the June 2021 by Court Broker Kabango General Business(T)handling over the plot ofland to the respondent Before going into the substance of the preliminary objections, I have noted a serious legal issue in this appeal. From the grounds of appeal, it is apparent that the appellant is challenging the decision of Usangule Ward tribunal on land case No. 05 of 2020 as opposed to the decision or proceedings of Ulanga District Land and Housing Tribunal in Misc. Application No. 15 of 2020. Even the proceedings before Ulanga District Land and Housing Tribunal, the appellant herein challenged the decision of the Ward tribunal instead of arguing or objecting the application for execution. At page 3 paragraph 3 of Ulanga District Land and Housing Tribunal's, observed as quoted hereunder:- ''Mshindwa tuzo akiwasiiisha hoja zake alilleleza baraza hHi kwamba, hana taarifa za uwepo wa shauri Na. 05/2020 katika baraza la kata Usanguie. Mshindwa tuzo aliendelea kuiieieza baraza hiii kwamba, aiipewa tu wito wa kufika katika baraza hiii. Mshindwa tuzo aiimaiizia hoja zake kwa kuiieieza baraza hiii kwamba, haridhiki na maamuzi ya baraza ia kata kwa sababu hakushiriki katika shauri hiio" The meaning of the above quotation is that, the appellant

was challenging the existence of land case No. 05 of 2020 before Usanguie Ward tribunal and that he was only served with summon to appear before Ulanga District Land and Housing Tribunal on Misc. Application No. 15 of 2020 for execution and that he is aggrieved with the decision of Usanguie Ward tribunal. Ulanga District Land and Housing Tribunal directed itself on the application for execution, and Referred to the case of Fortunata Edga Kaungua Vs. George Hassan Kumburu, Misc. Civil Appeal No. 71/2019 (unreported), held:- it can safeiy be concluded that the roie of execution court is to finalize the case, that is, to deai with the orders and decree as decided by the triai court. The appellant seriously misdirected both, before the District Land Tribunal and in this court, first, instead of applying to set aside the exparte decree passed by the Ward tribunal, with a view to be heard inter-parties, I think, out of ignorance he vehemently challenged the application for execution, as if, he was challenging the decision of the Ward tribunal. Second, the exparte judgement of whatever nature is not appealable until there is an attempt to set aside such exparte decree. Therefore, this appeal has no leg to stand, because from the beginning, the appellant misdirected and is wasting his time to appeal to this court instead of applying to set aside the decision of the Ward tribunal. Since this appeal is founded on nullity, likewise it is nullity. If the appellant is aggrieved by the decision of Usengule Ward tribunal, he is required to comply with the legal requirements explained above. I therefore, proceed to dismis^Jiiis^^appeal for lack of merits. PJ. NGWEMBE

JUDGE 31/05/2022 Court; Delivered at Morogoro in Chambers on this day of May, 2022 In the presence of the Appellant and present for the Respondent. Right to appeal to the Court of Appeal explained. PJ. NGWEMBE , i / JUDGE 31/05/2022