JUDGMENT OF JOSEPH MWASHILINDI VS SIKITU ZUA

THE UNITED REPUBLIC OF TANZANIA JUDICARY IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA LAND APPEAL NO. 000000677 OF 2024 CASE REFERENCE NO. 20240115000000677 (Originating in Application for Execution No. 16 of 2023 of the District Land and Housing Tribunal for Songwe in original Land Dispute No. 16 of 2020 of Shiwinga Ward Tribunal) JOSEPH J. MWASHILINDI .................................................... APPELLANT VERSUS SIKITU SAREHE ZUA ......................................................... RESPONDENT JUDGMENT Date of hearing: 26/6/2024 Date of judgment: 7/8/2024 NONGWA, J. The appellant is aggrieved by the decision of the District Land and Housing Tribunal for Songwe at vwawa in Application for Execution No. 16 of 2023 which dismissed his preliminary objections. Briefly, Laston Zubha now deceased, in 2020 instituted a land dispute against the appellant in the ward tribunal of Shiwinga for recovery twelve acres located at Mazimbo hamlet which had been trespassed by the appellant. Upon hearing parties, the tribunal held in his favour. It appears the appellant did not contest this decision. In 2023 the 1 respondent in the capacity of administrator of the estates of the late Laston Salehe Zuwa filed application for execution which was christened as Application No. 16 of 2023, he sought assistance of the tribunal to evict the appellant in the suit land. The appellant being served with the application filed three points of preliminary objections; one, that the application was res judicata vide application No. 25 of 3017; two, that the respondent had no locus stand; and three, that the application did not show the judgment sought to be executed. Upon hearing, the chairman dismissed the objections hence this appeal. In the amended memorandum of appeal, the appellant has fronted five grounds for the reason to be apparent soon, I will not reproduce it here. When the appeal came for hearing, the appellant appeared in person, the respondent refused to accept service, thus appeal proceeded ex-parte. In the course of composing judgment, I noted that the appeal is from the ruling on preliminary objections which were raised by the appellant, in terms of regulation 22 of the Land Disputes Court (the District Land and Housing Tribunal) Regulation, G.N 174 of 2003 bars appeal on interlocutory orders. Thus, I re-opened proceedings for the appellant to address; 2 Whether the ruling of the tribunal is amenable to appeal, and whether the appeal is competent before this court. The appellant being a layman had nothing useful to submit on the point than stating to have appealed because the trial tribunal was not doing right and did not know that interlocutory orders like the present one are not appealable. As stated elsewhere in this judgment, the appeal stems from the ruling which dismissed the preliminary objections raised by the appellant, final part of that ruling reads; ‘Mapingamizi yote yametupiliwa mbali kwa gharama ... Haki ya kukataa rufaa Kwenda mahakama kuu imeelezwa kwa wahusika.’ Literally translated ‘All objections are dismissed with costs ... Right of appeal to high court explained to parties.’ Regulation 22 of the Land Disputes Court (the District Land and Housing Tribunal) Regulation, G.N 174 of 2003 provides; ‘The chairman shall have powers to determine; (a) Preliminary objection based on point of laws; (b) Applications for execution of orders and decrees (c) Objection arising out of execution of orders and decrees 3 (d) Interlocutory applications Provided that a ruling on a preliminary point of laws or interlocutory application which has no effect of finally deciding the case shall not be appealable.’ Emphasize added. The above bolded phrase has consistently been construed by the Court as having the effect of barring any appeal against any preliminary or interlocutory decision or order of the court which does not have the effect of finally and conclusively determining the suit. To know if the decision or order has effect of finality, the nature of the order test is applied. In Murtaza Ally Mangungu vs The Returning Officer of Kilwa & Two Others, Civil Application No. 80 of 2016; ‘In view of the above authorities, it is therefore apparent that in order to know whether the order is interlocutory or not, one has to apply the nature of the order test. That is, to ask oneself whether the decision or order complained of finally disposes of the rights of the parties. If the answer is in affirmative, then it must be treated as a final order. However, if it does not, it is then an interlocutory order.’ Now at hand, the decision subject of appeal was in respect of preliminary objections raise by the appellant and the chairman only dismissed the objection, meaning application for execution is yet to be heard. Although the chairman expressed that parties had right of appeal, 4 this did not prejudice parties as they had chance to seek legal advice on the proper course to take and it has not been submitted that the appellant acted on it to file this appeal. As the application for execution is still pending in the tribunal, rights of the parties are not finally and conclusively resolved by the tribunal, thus no appeal relies to this court. The appellant still has chance to contest application for execution in accordance with the laws. The appeal is therefore incompetent and I strike it without costs. I order that the record be remitted to the District Land and Housing Tribunal for Songwe to proceed with the hearing of the application for execution in accordance with the law. V.M. NONGWA JUDGE 7/8/2024 Dated and Delivered at Mbeya this 7/8/2024 in presence of the appellant in person. V.M. NONGWA JUDGE 5