JOSEPH MWITA MASAJI v MWITA JOSEPH MSIMBETA

IN THE HIGH COURT OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA LAND APPEAL NO. 3439 OF 2024 (Arising from the Decisions of District Land and Housing Tribunal for Dodoma at Dodoma in Misc. Land Application No. 274 of 2022 dated 25/01/2024; and from Misc. Land Application No. 214 of 2022 dated 09.06.2023).

BETWEEN JOSEPH MWITA MASITA.........................................APPELLANT

VERSUS 1. MWITA JOSEPH MSIMBETA …..…………….. 1ST RESPONDENT 2. TANADEC E.A. LIMITED ………………..……..2ND RESPONDENT 3. AMBAKISYE KALONGA MBANGULA …………..3RD RESPONDENT

JUDGEMENT Date of last Order: 29/07/2024 Date of the Judgement: 27/08/2024 LONGOPA, J.: On 19th February 2024, the appellant filed this appeal against the decision of the District Land and Housing Tribunal for Dodoma on the 1|Page whole judgment and decree on the following grounds, namely: 1. That, the trial chairman erred in law and fact by ruling out that the suit premises the appellant sold to the Applicant/3rd respondent was the one in Land Application No. 198 of 2019 as he was guided by his mind and not by law as it is evidenced at page 7 on 3rd line of the typed judgment; 2. That, trial Chairman erred in law and fact by not complying with the order of the same which ordered the sale of dispute property in Land Application No. 198 of 2018 instead it has come to a new position by ordering eviction to evict the purchaser in the disputed premises recognized as Plot Number 6094 located at Nzuguni area.

3. That, trial tribunal erred in law for twisting its own decree and assisting the respondent herein in unlawful procedure. It was the appellant prayer that on strengths of the grounds set out above that this appeal deserve to be allowed and orders of the District Land and Housing Tribunal to be set aside and the costs of this appeal. The 1st respondent vehemently opposed the appeal that the appellant 2|Page had no locust standi to sue before this Court and on other hand the trial tribunal evaluated properly the evidence and arrived into justifiable decision. It was also averred that decision of trial tribunal reflected and adhered to legal standard s required under the law of the land. Thus, it was 1st respondent prayed for dismissal of the appeal with costs. According to the appellant with regard to the first ground that the Tribunal erred in law and facts by ruling out that the suit premises, it was submitted that the trial Tribunal was not guided by available evidence but directed by his own mind. It is appellant’s view that the record in Land Application No. 198 of 2019 contains nothing stating about Plot No. 6094 to be the plot in question. Therefore, it proves that the suit in dispute in the said land case, has no any relationship with the land which the appellant sold to the third respondent who was the applicant in Land Application No. 274/2022. On the second ground of

the appeal that the tribunal erred in law and in fact by not complying with the order of the same tribunal which ordered the sale of the disputed property in Land Application no 198/2018 instead it has come with the new position by ordering eviction to evict the purchaser in distinct premises recognized as Plot No 6094 located at Nzunguni Area. According to the appellant, even if it were the same suit in dispute, the order of the tribunal issued by the distinct chairman (Hon. Mwihava) ordered the sale of the disputed property in Land Application no 3|Page 198/2018 but instead and against the laws which governs execution of decree the tribunal twisted the decree by ordering eviction to evict the purchaser in distinct premises recognized as Plot No 6094 located at Nzunguni Area. As such, according to the appellant the facts stated by the chairman, cannot be found in the proceedings. With regard to the last ground of appeal that the trial tribunal erred in law for twisting its own decree and assisting the Respondent herein in unlawful procedure, it is submitted that in land application No. 198 of 2019 the boundaries of the disputed property was not mentioned in full the thing which is ambiguous to exactly identify the land in dispute. Eventually, it is lucid that the tribunal tried to identify the land in dispute at the execution stage. This is against the law and this court

should intervene the same. The appellant laments that this court has several times adjudicated on the issue of clear identification of the suit property of which will make the decision very clear. When reading the application of the District Land and Housing Tribunal. There is no clear identification of the suit property and the said property is not the property which that appellant sold to one AMBAKISYE KALONDA. The appellant argued that the right of the purchaser can be curtailed by failure of the trial Tribunal to visit the locus in quo hence it is difficult to ascertain the right of the former. The case of Mbwana M Chuma and 2 Others vs Dar es Salaam Parkland Holding Limited (Land Appeal No. 4|Page 34 of 2022) TZHCL LAND 255 which was the High stated that "now the main issue for determination is whether the description is too vague to specifically describe the disputed property to the required comprehension. When it comes to the issue of location on a subject matter of the suit involving movable property the plaint shall contain a sufficient description of the property.” The appellant reiterated that he sold a distinct land which does not match with the land application. Furthermore, the appellant stated that as the point of law, the original land application did not describe the actual location, identification of boundaries of the suit property which was purely against the

precedent, hence point of law. At this juncture, the appellant prayed that the appeal be allowed and orders of the District Housing and Land Tribunal to be set aside and costs of the appeal. Conversely, the respondent argued inconsistent with the first ground by stating that simply the record of Tribunal is precisely clear that the suit premises sold by the Appellant herein to one Ambakisye Kalonda Mbangula is the one litigated in Land Application no. 198 of 2018. The respondent reiterated that definitely details of the suit premises is the same litigated in Land Application no. 198 of 2018 to present. The appellant while had no good title to pass just sold the same on 22.06.2023 despite the Tribunal had already delivered its Order in favour of the 5|Page Respondent since 2019, even though such sale agreement of 22/06/2023 concerned about shamba only and not premises. The Trial Tribunal while guided by records overturned the sale to the effect the said land is the one that was litigated and the same was not executed to the fullest. On the second ground, the respondent contends that execution in relation to Land Application Number 198/2018 was not fulfilled as a result of the challenging of the decision by appeal to the High Court. The respondent invited the court to note the express Execution completeness which has been defined in the case Tanzania Motor Services Ltd V Tantrack

Agencies Ltd, Civil Application No. 86 Of 2004, Court of Appeal of Tanzania at Dar es salaam while citing the case of Re Overseas Aviation Engineering (G.R) Ltd. (1963) 1 Ch. 24 at page 39, Lord Denning M.R had this to say: ‘’execution…is complete when the Judgment creditor gets the money or other thing awarded to him by the judgment is the satisfaction of the judgment, also in the case of Shell and BP Tanzania Ltd and The University of Dar es Salaam, a judge had this to say, “…execution is the final act, that is, the satisfaction of the judgment…the nature of the subject matter would dictate the mode of execution.’’ According to the 1st respondent as per Tribunal records Land Application No. 274/2022 at page 6 of judgment and Land Application No. 198/2018 appreciate the said execution was not carried out hence 6|Page Application No. 214 of 2022 to effect the same. It was expounded that the principle in the case of Tanzania Motor Services Ltd v Tantrack Agencies Ltd, Civil Application No. 86 of 2004, Court of Appeal of Tanzania at Dar es salaam, at pages 4 & 5 stated that execution deemed to be completed after these compliance include the process of issuing the attachment order, the attachment of the property to be attached, proclamation for sale, sale of the attached property, and finally payment of the sale proceeds to the decree holder. But its settled principle that

the winning party has the right to enjoy the fruit of judgment as stated in the case of African Banking Corporation Tanzania v Mture Educational and 2 others, Commercial Case No. 73 of 2019 (unreported). The 1st respondent stated that in Misc. Land Application No. 274 of 2024 at the District Land and Housing Tribunal the appellant herein was a 1st respondent while Ambakisye Kalonda Mbangula was the applicant where the application was found to lack merits and dismissed. It was submitted at this point that appellant herein who was the 1st Respondent in that application (appellant’s herein) had no locus stand at this Court. The case of the Registered Trustee of SOS Children's Villages Tanzania v. Igenge Charles & 9 Others, Civil Application No. 426/08 of 2018 (unreported), borrow a leaf from the Supreme Court of Malawi's decision in the case of the Attorney General v. Malawi Congress Party & Another, Civil Appeal No. 32 of 1996 and observed: had this to say about locus standi. “Locus standi is a jurisdictional issue; it is rule of equality that 7|Page a person cannot maintain a suit or action unless he has an interest in the subject of it… Also in the land mark case of S.P Gupta v. Union of India AIR SC 149, in which Mr. Justice Bhagwati held at p. 185 thus it provides: “The traditional rule in regard to locus standi is that judicial redress is available only to a person who has

suffered a legal injury of violation of his legal right or legally protected interest by the impugned action of the state or public authority or any other person or who is likely to suffer." It was the 1st respondent submission that the appellant has no locus standi simply he has no rights or interests to loose or suffered any injury or violation of his rights. Regarding the issue over boundaries or demarcation or description of the premises is opposed to this contention as this issue was not in contention in the lower forums. Several decisions have expounded against including the case of Elisa Mosses Msaki v. Yesaya Ngateu Matee [1990] TLR 90 (CA), wherein it was held: "This Court will only look into matters which came up in the lower court and decided; not on which were not raised nor decided by neither the trial court nor the High Court on appeal.’’ It was undisputed facts that, conflict between parties started way back 2014 after appellant breached the Loan Contract dated 12/08/2024 and such premises bonded thereof, hence Land Application No 198/2018 whereas the such suit in dispute was not surveyed and it was the appellant 8|Page herein who lived for gain at that premises. Since proceedings were still in course before Tribunal and the High Court, the appellant surveyed and registered that Plot as Plot No. 6094 located at Nzuguni area. It is the same land that was adjudged

in the execution in Miscellaneous Land Application No. 198 of 2018. Having heard both parties on this appeal, it is pertinent for this Court to determine whether this appeal has merits or otherwise. I have dispassionately analysed the proceedings, ruling and order in Miscellaneous Land Application No. 274 of 2022 dated 25th January 2024 in light of the submissions by the parties. On the first ground of appeal, it is not disputed that there existed Miscellaneous Land Application No 198 of 2018 between the appellant and 1st respondent regarding the same land. The decision in that land attached the house and ordered its sale. However, the sale was not completed as the appellant filed an application for extension of time to challenge the order in respect of Miscellaneous Land Application No. 198 of 2018 which was dismissed thus the 1st respondent proceeded to apply for execution. That order of execution was made by the Tribunal on 09th June 2023. As the appellant was aware of existence of order of the Tribunal attaching the land in question for sale, attempted to dispose the land to 3rd 9|Page respondent herein. Such attempt to dispose the land is considered as an attempt to make execution of order of the Tribunal impossible. Indeed, existence of the court order made the attempt to dispose the land pending the execution of such order unlawful. The appellant’s title over that land

ceased at the moment the Tribunal ordered the same to be attached and sold in execution of the Tribunal order. It was settled principle of law in in Frank Mohamed v. Fatuma Abdizack [1992] TLR 205, which is illustrative as the Court noted that “it is trite law that nobody can give what he does not possess (Nemo dat quod non habet). Further, in Abdallah Irunde vs Msunga Mtunda and Another (Misc. Land Appeal 38 of 2019) [2021] TZHC 2488 (5 March 2021) (TANZLII), at pages 5-6, Siyani, J.:-(as then he was) succinctly held that: In this case, it is undisputed that the original owner of the land is Msunga Ntunda who never transferred its ownership to seller. Therefore, even though the land was sold in the presence of the village leaders that alone does not make Abeid Msunga the owner of the suit land. Abeid Msunga did not have a good title to pass it over to the appellant. The Appellant took the risk of buying the land 10 | P a g e from a person who does not own it. This is where the doctrine of caveat emptor applies. Caveat Emptor means "buyer beware." It basically conveys the message that the buyer must protect his or her own interests when making a purchase or transaction. The appellant ought to have obtained all available information before he finalizes the purchases. Failure to do so presupposes that purchased the land from a person who did not own it at his own risk, and he

cannot demand for ownership of the land from the real owner. It was his responsibility as the buyer to investigate about the title of the land before he purchased the land. Therefore, the buyer purchased the land at his own risk. Ultimately, he bought the land from a person who did not own it, he must take the risks and thus there is nobody else to blame. The buyer must deal with the consequences of his selection. As the 3rd respondent herein who was applicant is Misc. Land Application No. 274 of 2022 purchased the disputed plot of land from the appellant herein while there existed an order of execution in particular attachment against the said property, it is lucid that no title passed to the 3rd respondent one Ambakisye Kalonda Mbangula. 11 | P a g e I entirely subscribe to the principle referred to by the Tribunal in Paschal Maganga vs Kitinga Mbariki (Civil Appeal No. 240 of 2017) [2019] TZCA 62 (2 April 2019) (TANZLII), at page 8, where the Court of Appeal of Tanzania reiterated that: This is so because Patrick Amani Mbarika, without a proper Will giving him ownership of the disputed house, had nothing to pass to the appellant. That is to say, no good title passed from him; the seller to the appellant; the buyer. Patrick Amani Mbarika had nothing to sell, or exchange as happened here, to the appellant. This stance finds support in the rule embodied in the Latin maxim which

goes nemo dat quod non habet. According to this maxim, so Black's Law Dictionary (8th Edition) tells us, no one gives a better title to property than he himself possesses. The land in question was already encumbered through an attachment order dated 07.05. 2019 thus the title could not have passed to any other person other than in execution of the court/Tribunal order. As per submissions of the parties, it appears that the appellant while fully aware of existence of the court order intended to defeat the valid court order by disposing off the property to a third party. 12 | P a g e Thus, the first ground of appeal is destitute of merits and I shall proceed to overrule it. An attempt by the appellant to dispose the suit land to 3rd respondent was intended to prevent execution of the court order. That attempt should not be countenanced. With regard to second and third grounds on departure of the Tribunal from the order dated 7th May 2019 in Misc. Land Application No. 198 of 2018 that ordered attachment and sale of the suit premises and that of eviction as per decision in Misc. Land Application 274 of 2022 dated 25 th January 2024, it is not difficult to determine. The nature of the proceedings in Misc. Land Application No. 274 of 2022 was objection proceedings instituted by the 3rd respondent herein in attempt to prevent execution of the Tribunal’s order. It was consequential to

the actions of the appellant and 3rd respondent in instant appeal trying to prevent the execution order. I am of the settled view that the order was correctly made to address prevailing circumstances of that particular matter. The Tribunal, in enforcing the Tribunal’s order, had nothing else but ordering vacant possession of the disputed land by the 3rd respondent in instant appeal. This would give room to properly execute the decree as the attachment property of the property was in existence prior to the purported sell of the land in question illegally by the appellant herein. 13 | P a g e My perusal of the proceedings in particular pages 5 and 6 indicate that 3rd respondent stated that the house in question was not the one that the District Land and Housing Tribunal had ordered execution. According to applicant in Tribunal (appearing as a 3rd respondent in this appeal), the property in question was different. However, no details were availed as to the description of each of the plots in question. A similar story was made by the appellant herein (then 1st respondent) who stated that the order of attachment was on a different property with the plot that was sold to the 3rd respondent/applicant by the appellant/ 1st respondent before the Tribunal. It is lucid that both the applicant and first respondent at the trial Tribunal who alleged that the property sold to the applicant

was not that which was attached by the Tribunal’s order. However, both failed to demonstrate before the trial Tribunal that there existed two different plot. There was no such evidence before the trial Tribunal. Indeed, it is settled principle in this jurisdiction that he who alleges must prove. It was the duty of the applicant before the trial Tribunal to prove that actually the plot which was attached by an order of the Tribunal dated 7th May 2019 in Misc. Application No. 198 of 2018 was not the one sold to the applicant before the Tribunal. In the case of Anthony M. Masanga vs Penina (mama Mgesi) and Another (Civil Appeal No. 118 14 | P a g e of 2014) [2015] TZCA 556 (18 March 2015) (TANZLII), at page 9, the Court of Appeal stated that: Let's begin by re-emphasizing the ever-cherished principle of law that generally, in civil cases, the burden of proof lies on the party who alleges anything in his favour. We are fortified in our view by the provisions of sections 110 and 111 of the Law of Evidence Act, Cap. 6 of the Revised Edition, 2002 which state. inter alia: “110. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist.

111. The burden of proof in a suit proceeding lies on that person who would fail if no evidence at all were given on either side.” It is lucid that evidence of the second respondent before the trial Tribunal as reflected on page 7 of the proceedings that it is the same property that was ordered in Misc. Land Application No 198 of 2018 to be attached and sold that the 1st respondent had sold to the applicant before the Tribunal while attachment order existed. According to the 2nd respondent, the 1st respondent has no title over the land on 22.06.2022 when he purportedly sold the same to the applicant as already the attachment order was made on 07.05.2019. 15 | P a g e The trial Tribunal found that the same property that it had ordered the attachment on 07.05.2019 was the one sold to the applicant. The execution process was not completed in time as the 1st respondent had been challenging the decision at the High Court. It was correct for the Tribunal to so find as both the applicant and 1st respondent before the Tribunal who were purchaser and vendor respectively did not tender any evidence to support allegations that there were two different plots. The applicant before the Tribunal having taken possession of the attached premises in contravention of the Tribunal’s order of attachment in execution of the decree remained a trespasser in that particular property thus the Tribunal

rightly ordered the eviction of the trespasser. Having found that application before the Tribunal was devoid of merits thus dismissed it in its entirety with costs, the Tribunal stated in lucid terms that the 2nd respondent was at liberty to proceed with execution process. Indeed, the order by the trial Tribunal in Misc. Land Application No. 274 of 2022 is in consonance with that in Misc. Land Application No. 214 of 2022 as the letter/order dated 04.08.2023 from the District Land and Housing Tribunal for Dodoma to TANADEC EA LIMITED, directed that the appellant herein be evicted from disputed property in facilitating the execution orders of the Tribunal. 16 | P a g e It is on record that the execution order dated 02.05. 2019 and attachment order dated 07.05.2019 did not finalize the execution process due to appellant’s attempt to challenge the same. Thus, 2nd appellant before the Tribunal in Misc. Land Application No 274 of 2022 filed a fresh application for execution that resulted into the Tribunal ordering the eviction of the appellant herein. This is categorically reflected in pages 4 to 5 of the Ruling of the District Land and Housing Tribunal for Dodoma dated 25th January 2024 which is the subject of this appeal. I am of the settled view that the Tribunal did nothing wrong to warrant this court’s finding that the same was illegal in favour of the 1st respondent in instant

appeal. Indeed, all the orders categorically intended to ensure that there is no impediment to the execution of the decree of the Tribunal which was legally and lawfully obtained by the 1st appellant. It is certain that 2nd and 3rd grounds of appeal are devoid of merits thus the same are dismissed. In totality of the events, this appeal has nothing tangible other than an attempt by the appellant to circumvent execution of a lawful decree from competent court in land matters. I uphold the decision of the District Land and Housing Tribunal for Dodoma in Misc. Land Application No. 274 of 2022 dated 25th January 2024 for being correct decision arrived at in accordance with the prevailing laws of the land. I shall proceed to dismiss 17 | P a g e the appeal in its entirety for being delinquent of any merits. The 1 st respondent is entitled to costs of this appeal. It is so ordered. DATED at DODOMA this 27th day of August 2024 E.E. LONGOPA

JUDGE 27/08/2024. 18 | P a g e