land appeal no

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 22235 OF 2024 (Originating From Application No. 69 of 2022, Temeke District Land and Housing Tribunal) JOSHUA GORDSON MWAKAPUSYA....................................................... APPELLANT VERSUS TUSUBILEGE MMETA............................................... RESPONDENT JUDGMENT 17th to 18th October, 2024 E.B. LUVANDA, J The Appellant named above is challenging the decision of the Tribunal on the following grounds: One, the learned trial Chairperson erred in law and fact by not finding that the suit land in Application No. 69 of 2024 there was no deed of settlement filed for him deciding the matter; Two, the trial Tribunal erred in law and fact dividing the house that the Appellant shall remain with two houses and the Respondent allotted two houses without even the description which houses in which there is no way we can execute, hence procedural irregularity; Three, the trial Chairperson erred in law and fact by not giving the parties right to be heard and reached into conclusion. The Appellant submitted that the Tribunal ordered the four houses to be divided where two houses were allotted to the Respondent and two houses allotted to the Appellant. He submitted that his basic claims were not considered, in that 1 those four houses, two houses were formerly allotted to his father Gordson Mwapusya and Appellant's young brother Michael Mwakapusya was given one house, while the Appellant was given one house. He submitted that in the impugned judgment the Tribunal ruled that his aunt (Respondent) should take two houses and two houses to be under the Appellant. It was the contention of the Appellant that the those two houses allotted to the Respondent, belongs to his father Gordson Mwapusa whose estate is yet to be administered. He submitted that if those two houses will be handed over to the Respondent it means if he petition for a probate of his late father, there will be nothing to administer. He submitted that the Tribunal decided without properly evaluating evidence. In reply, the Respondent submitted that she was married in 1996 to Mzee Gordson, who had only three houses, thereafter the Respondent constructed another house. She submitted that she has been a teacher for forty years, she retired in 2020. She submitted that at the time of marriage, Gordson had already retired where they were blessed one child called Jimmy Gordson Mwakapusya. She submitted that from 1996 today she is living in the house where she was married. She submitted that on 9/5/2019 her husband passed away while court proceedings were underway, where the late Godson Mwakapusya was sued by the Appellant who was chasing him from the matrimonial home. She submitted 2 that after the death of her husband she was sued by the Appellant at Temeke Court, and the judgment was issued to the effect that she was entitled to the half of the estate. On rejoinder, the Appellant submitted that he sued in view of making follow up of the estate of his mother, it is where his father was summoned, where was told that the Appellants mother contributed to acquisition of the assets. He submitted that the Respondent is frustrating meeting which are being scheduled to be convened to administer the estate, while she is staying in the house acquired by Appellant's mother. That he filed this appeal to challenge the decision of the Tribunal. He submitted that the Respondent did not construct because it was a homestead of the Appellant's mother and father. Going by the Tribunal's record depict that the matter was resolved through a deed of settlement executed by parties before the Tribunal. When I put this to the Appellant as to why he is appealing against the deed of settlement, the Appellant responded that the settlement ought to be accompanied by deed of contract. He submitted that the learned Chairperson merely crafted by hand and asked them to append signatures. The Appellant was of the view therefore that there was no deed of contract. 3 The Respondent on the other hand responded that there was a deed of settlement, added further that the Appellant was the first to sign and the Respondent counter signed. Regulation 18 of the Land Disputes (The District Land and Housing Tribunal) Regulations GN 173 of 2003, provide '(1) Where parties at any stage ofproceedings have agreed to settle the matte before the Tribunal the Chairman may enter consentjudgment or order upon such terms as may be agreed by parties. (2) A consent judgment or order so entered under sub­ regulation (1) may be executed by the Tribunal in case of default or non compliance. (3) A consent judgment or order so entered under this regulation shall be written signed by parties and certified by the Chairman' Indeed, the records of the Tribunal specifically a coram dated 24/07/2024 reflect a consent order was written, signed by both parties and certified by the Chairman. Therefore, an argument by the Appellant that there was no consent order or settlement, is misleading. The law is settled that no appeal can be entertain from the decree passed by the Tribunal with the consent of parties. Section 70(3) of the Civil Procedure Code, Cap 33 R.E. 2019, provide, 4 'No appeal shall He from a decree passed by the court with the consent of the parties7 Therefore, this appeal is incompetent as it was preferred against an order which is not appealable. The appeal is struck out. Because parties are related, lingering over estate, it is desirable for each one to foot own costs. 5