Land Appeal 28 of 2023 Judgment Mrisha J

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA LAND APPEAL NO. 28 OF 2023 (Arising from the Ruling of Hon. Gregory K. Rugaiema, Chairman of the District Land and Housing Tribunal for Mpanda at Kataviin Miscellaneous Land Application No. 02 of2023 which arose from Misc. Civil Applications Nos. 77 and 78 of2022 and originated from Land Application No. 43 of 2013 before the District Land and Housing Tribunal for Rukwa at Sumbawanga) ?•<•. < JUMA JOSEPH MKELEMI (As the Administrator of the Estate of the Late Godribe Adonia Mkelemi).............. ...... ........... APPELLANT . VERSUS VODACOM (T) LIMITED............... ......RESPONDENT JUDGMENT 2d1’ August& September;.2024 f- MRISHA, J. The parties to this appeal entered a lease agreement in 2012 upon which the respondent who was a lessee and the appellant a lessor, had to pay the latter Tshs. 3,600,000/= being annual rent for operating a telecommunication tower in the area belonging to the appellant henceforth the disputed land. In order i to utilize the said land properly and earn some profits from it, the respondent erected a long telephone tower after building a basement and flooring underneath it. Thereafter, the respondent began to operate that tower for a number of years whilst paying the appellant the annual rent as agreed in their lease agreement. However, after expiration of the lease tenure, the respondent neither vacated from that land nor renewed the agreement with the appellant, rather she proceeded to use the disputed land for about three years without paying the agreed annual rent despite some several attempts by the appellant to contact her for the payment, thus making it to accrue to the tune of 10,800,000/=. < That prompted the appellant to institute Application No. 43 of 2013 against the respondent before the District Land and Housing Tribunal for Rukwa at Sumbawanga (the 'trial tribunal) claiming among other things, for the orders that the respondent be ordered to vacate from the suit land, pay all rent arrears to the appellant from the date of expiry of the old deed. It appears, however, that on the date fixed for hearing of the said suit, the representative of the appellant one Ms. Penina, informed the trial tribunal that the appellant/applicant had agreed with the respondent to settle their dispute amicably out of court and prepared a deed of settlement which she then 2 urged the trial tribunal to admit and mark the dispute between them as being settled amicably. The respondent through Mr. Mwanyika, her representative, raised no objection to that prayer. As a result, the learned chairman of the trial tribunal admitted the said deed of settlement, then delivered a consent judgment and passed a decree requiring the respondent to pay the applicant a total of Tshs. 15,800,000/= (Fifteen Million, eight hundred thousand only) through the applicant's attorney Account and vacate and give vacant possession of the KCy"-.:. ‘•-••I:-A.?. disputed land by the end of December, 2015. T In the said judgement and decree, it was also stated inter alia, that: "The suit is marked finally and conclusively settled by mutual consent of the parties. The respondent has topay the said money as agreed and give vacant: possession or else execution shall take place as per the law. No order for any further costs". '' r' • • ••: • c; >•£0 '• ' The records of the trial tribunal clearly depict that immediately after delivery of the said consent judgment followed by the decree, the respondent paid to the appellant the decreed amount instantly and thereafter proceeded to dismantle the telecommunication tower in the disputed land, then handed over vacant possession of the said land to the appellant. That took place in the year 2015. Those facts were, and are still admitted by the appellant. 3 However, it appears that on 13 October, 2022, the appellant filed with the same trial tribunal, the Miscellaneous Land Application No. 77 of 2022 by way of Chamber Summons made under Section 34 (1) of the Civil Procedure Code, Cap 33 R.E. 2019 (the CPC) seeking for the orders that: 1. The application be sent to Mpanda District Land and Housing Tribunal for execution. 2. Costs for the Application. > << Again, through his supporting affidavit, the appellant/applicant averred inter alia, that in the year 2013 he instituted the Land Application No. 43 of 2013 against the Judgement Debtor (respondent) which was concluded by consent judgment. That, the judgement debtor had failed to fulfil the settlement aforementioned; hence, the need to execute the Consent Settlement as per A,.,■;.•' 7Z <' • - • • : 1" 5'• W •.. fi- i'Jj.;y. the Decree. Xe.- He also averred that the disputed land is situated at Mpanda District within the jurisdiction of Mpanda District Land and Housing Tribunal hence the trial tribunal has no territorial jurisdiction over the disputed land and the Decree Holder resides at Mpanda where the subject matter is situated. As the respondent had no objection to the said application, the same was granted forthwith, and subsequently thereto, the appellant approached the 4 District Land and Housing for Mpanda at Katavi (the executing court) for his application for execution of the decree to be heard and determined. After hearing the rival submission of the parties to those proceedings, the executing court dismissed the appellant/appiicant's application for want of merits on the reasons that the respondent had already paid all the decretal sums to the appellant and also removed the telecommunication tower 2016, something which the appellant admitted, but never complained against the respondent for the whole period of seven years. Another reason the executing court assigned through its ruling dismissing the appellant/applicant's application, was that the. parties' deed of settlement which was filed with the trial tribunal and became a consent judgment, does not specify the manner of giving vacant possession by the respondent; hence, it was the view of the presiding learned chairman of the executing tribunal that the respondent's act of dismantling the telecommunication tower on the 'k”_ \ disputed land, amounted to vacation and that the act of leaving the disputed Z'_ AH*?.;'' land empty for the use of the appellant, amounted to vacant possession. It is that decision which prompted the appellant to knock the doors of this court with a memorandum of appeal which contain four grounds of grievances as follows: - 5 1. That, the trial tribunal erred both at law and fact to hold that the Respondent had vacated and cleared from the disputed land and given vacant possession to the Appellant. 2. That, the trial tribunal erred both at law and fact to hold that the Respondent had given vacant possession to the Appellant contrary to the evidence adduced which proved that the .Respondent had not cleared from the suit premise and that he has not given vacant possession to the Appellant. ; ■ 3. That the trial tribunal erred at law by holding that the Respondent had cleared and given vacant possession to the Appellant while the foundation and flooring still remain at the suit premises which is contrary A ;T. •- 7!. -J;?'' to the Lease Agreement which defines premises to include foundation and flooring. 4. That, the triaL tribunal misdirected itself by refusing to order compensation to the Appellant for the (sic) Respondents act of illegal occupation of : the suit premises and not giving way and vacant possession from the same. Having fronted the above grounds, the appellant urged the court to grant the following orders in his favour: - i. The Respondent be ordered to vacate the same. 6 ii. The Respondent be ordered to compensate the Appellant for all the time the Respondent was in illegal occupancy of the suit premise until the same clears from the suit premises. iii. Cost be in the cause. The appeal was heard by way of written submissions and both parties complied with the scheduled order of the court requiring them to file their respective written submissions. The appellant joined and submitted jointly grounds number 1,2 and 3 of appeal arguing that the triat tribunal's decision goes against the true fact that the foundation ’and flooring of the premises have not been cleared as it was admitted by the Respondent herself who went on to prove it by providing photos of the uncleared foundation as seen in her reply presented before the trial tribunal; similarly, the respondent did not dispute it in her Submission. s’. •y '... The appellant also submitted that the foundation and flooring which have not been cleared and pulled down by the respondent, were part of the premises in accordance with the contract hence; it needed to be pulled out and cleared as the respondent did with the mast structure or telecommunication tower, as per Article 7.1 of the Lease Agreement which provides that: 7 "Without limiting the generality of clause 5.1 the Lessee shall be entitled at its own contract, affix and install any of the following Equipments or structures at the premises^ 7.1.1.4 foundation, flooring paving and other related and accessing structures thereto if applicable or necessary-' He also submitted that it is the position of the law that parties to an agreement or contract are bound by the terms and conditions of contract freely entered, as it was enumerated by the Court of Appeal in the case of Simon Kichele Chacha vs Aveline M. Kila we (Civil Appeal 160 of 2018) [2021] TCA 43. Having cited the above case, the appellant submitted that the respondent is thus, obliged to restore the premises to the good order as it can be observed from the wording of article 9.1 of the Lease Agreement which provides: "Save as provided for in article (sic) of the Lessee shall... provided further that should the Lessor so require at the termination of this 1 'V Lease; the Lessee shall restore the premises to the good order and condition in which they were at the contract starting date..." It was the appellants further submission that on 5th August, 2015, he entered into a consent settlement with the respondent in which the latter agreed and 8 promised to vacate the suit premises by the end of December, 2015, but she failed to fulfil her promises without any plausible and lawful reasons despite frequent demands made by the appellant through telephone communication. Moreover, the appellant submitted that to prove that the respondent did not clear the suit premises, is a true fact that the respondent presented no proof that she rightly cleared the disputed land and gave vacant possession, thus, the appellant argued, failure to present , any such proof proving that the respondent cleared and gave possession of the suit land in accordance with the lease agreement is bad for her (respondent) case. ,r-'. u X -• .I:.'?/ Further to that, the appellant submitted that he agreed with the respondent that in case of failure to execute the consent agreement, then execution shall take place as provided at page 2 . last paragraph of the consent judgment. Having so submitted, the appellant prayed that this court be pleased to give its judgment in his favour and order the respondent to clear and pull off the foundation and flooring and pay him the said Tshs. 28,500,000/= as rental •j. x._. charge outstanding. On her part, the respondent who enjoyed the legal services of Mr. Gaspar Nyika and Ms. Samah Salah, both learned advocates, strongly disputed the appellant's submission regarding his fronted grounds of appeal. In their submission regarding the first ground of appeal, the learned trained minds, 9 began by defining the term execution to mean the process of enforcing or giving effect to the judgment of the court and it is completed when the decree holder receives the judgment credit or gets money or other thing awarded to him by the judgment. To cement that/ they referred the court to the case of Re Overseas Aviation Engineering (GB) Ltd [1962] 3 All E.R. 1'2 at page 16. '■ Coming to the instant case, the respondent's counsel submitted that it is not in dispute that the respondent vacated the suit premises as agreed and had handed over vacant possession after demolishing the telecommunication tower which therefore, means that she satisfied; the consent judgment. She further contended that in his application for execution, the applicant sought for an order requiring the respondent to remove the basement built on the suit premises, but to her, the appellant is not entitled to that order sought by him in the application for execution because it was not part of the orders given in the consent judgment and the District Land and Housing Tribunal for Katavi at Mpanda was right to hold that in the consent judgment there was no order requiring the respondent to remove the basement from the disputed land. Also, the learned counsel for the respondent submitted that in law, the executing court cannot go beyond the decree, rather it must take the decree as it stands and execute it according to its terms. io They added that the executing court has no power to vary or modify the terms of the decree, nor does it have power to question its legality. Reliance was made on the case of Rachel Nankware Mgeni (as the Lawful Attorney of Sangiwa Amani Mgeni) vs Josephine Joseph Magelanga (Execution 28 of 2022) [2022] TZHC 15100 (13 December 2022). Another contention from the appellant's counsel was that despite the fact that in his submission in chief the appellant made reference to the terms of the Lease Agreement between him and the respondent, it is unfortunate that those terms did not form part of the consent judgment which is the subject of the application for execution. ? It was therefore, theirargument that the position of law is that in execution proceedings, the executing court only looks on and interpret the wording of the judgment and decree. They further argued that if any party wishes to challenge the decree, one of the remedy available to him, is to challenge it through appeal as it was held in the case of Gervas Mabula vs Anna John Kumalija (the Adminstratix of the Estate of the late John J. Kumalija), Land Appeal No. 64 of 2020) [2021] TZHC 6775. Based on the above authority, the respondent's counsel submitted that the appellant is bound by the orders made in the consent judgment and cannot ask the executing court to give orders not forming part of the consent u judgment because he was already paid the sum of money ordered by the trial tribunal and also the respondent gave him vacant possession of the suit land which he has been enjoying for over six years. In addition to that, the respondent submitted that the appellant unequivocally accepted the handover of the suit premises which contained the alleged basement without any complaint to the tribunal or to the respondent. Thus, due to the foregoing arguments, the respondents learned counsel submitted that the consent judgment was satisfied by the respondent who paid the decretal sum and gave vacant possession to the appellant. Hence, it was their humble prayer that the court be pleased to find that grounds 1, 2 and 3 of the present appeal are without merit. In regards to ground s, the learned counsel contended that in the consent judgment it was ordered that the respondent should pay to the appellant Tshs. 15,800,000/= and give vacant possession of the suit premises by the end of December, 2015. They- added that apart from those orders, no other orders, including the one requiring the respondent to pay compensation to the appellant, were made. They further submitted that in the course of his submission before the executing court, the appellant did not provide any authority to support the request for compensation and damages which neither forms part of the 12 consent judgment nor the application for execution. Based on the foregoing reasons, the respondent's learned counsel submitted that the fourth ground of appeal is also without merit and they invited the court to disallow it and dismiss the appellant's appeal with costs. In rejoinder, the appellant reiterated his previous submission by insisting that the consent judgment was not fully satisfied in accordance with its wording as found at paragraph 3 of page 2 of the said judgment. He also submitted that from the wording of that judgment, the respondent was- required to pull out and remove the foundation (basement) because the foundation is part of the premises as per Article 7.1 of the Lease, Agreement. He further submitted that the respondent had built a basement as foundation of his structure hence after expiration of the lease agreement she was required, as a mandatory condition, to remove and pull out the said basement in accordance with the said lease agreement. In regards to the cases of Rachael Nankware Mgeni vs Josephine Joseph Magelanga (supra) and Gervas Mabula vs Anna John Kumalija (supra) which were referred by the respondent's counsel, the appellant had it that the same helps only to solidify his claims on the fact that the consent judgment provided for the respondent to give vacant possession by pulling out the basement on vacating the suit property which she failed to comply. 13 As for the issue of compensation, the -appellant humbly submitted that it was necessary for the trial tribunal to order the respondent to compensate the appellant for the time the appellant was denied right the suit property. He similarly submitted that the consent judgment did take that act into consideration as it can be seen at the last paragraph of page 2 of the said consent judgment which provides that: "This suit is marked finally and conclusively settled by mutual consent of the parties. The respondent has to pay-the saidmoney as agreed upon and give vacant possession or else execution shall take place as per the law." He also referred to another paragraph at page 2 of the said judgment which provides that: j- . "That once deed of Settlement is signed by both parties it shall be irrevocable by either party except in case of breach by the defendant" In connection to the above, the appellant prayed that this court be pleased to decide the matter in his favour and order the respondent to clear and pull off the foundation and flooring and also pay the appellant Tshs 28,500,000/= as rental charges outstanding. 14 I have given due consideration to the raised grounds of appeal and the rival submissions of the parties to the instant appeal. Likewise, I have had an opportunity to go through the consent judgment of the trial tribunal as well as the ruling delivered by the District Land and Housing Tribunal for Katavi at Mpanda which I have purposely decided to refer as the executing court in order to avoid some unnecessary confusions whenever referring to that tribunal and to distinguish it with the District Land and Housing Tribunal for Rukwa at Sumbawanga from which the consent judgment under discussion stems. Having done so, it is my observation that there are few things to be put on the right track first before embarking. on the discussion regarding the merits or otherwise of the present appeal. First of all, there is no dispute that the task of the executing tribunal was just to facilitate the execution process of the consent judgment delivered by the trial tribunal following the appellant's uncontested prayer vide Miscellaneous Land Application No. 78 of 2022 that his execution application against the respondent be transferred to Mpanda and dealt with by the District Land and Housing Tribunal for Mpanda at Katavi (the executing tribunal), which is legally allowed under section 34 (I) of the CPC. Therefore, based on what transpired with this matter as elaborated above, it would be proper to refer the District Land and Housing Tribunal for Katavi at 15 Mpanda as the executing court whilst the District Land and Housing Tribunal for Rukwa at Sumbawanga, to be referred to as the trial tribunal. •Secondly, having gone through the grounds of appeal, the consent judgment of the trial tribunal, the ruling of the executing tribunal and the entire records of those two tribunals, I have observed that there are only two contentious issues between the parties to this appeal of which I will'deal with along with the raised grounds of appeal in order to determine the main issue I have al ready raised above. -; ;, The first one is the appellant's complaint that the respondent did not satisfy the consent judgment, and the second is his complaint that the trial tribunal misdirected itself by refusing to order compensation to the appellant for the respondent's act of illegal occupation of the suit premises and not giving way and vacate from the said premises. Without wasting time, let me now deal with the first complaint. Both parties do agree that the consent judgment required the respondent: i. To pay the appellant Tshs. 15,800,000/- (Fifteen Million, eight hundred thousand only) through the applicant's attorney Account and; ii. To vacate and give vacant possession of the disputed land by the end of December, 2015. 16. It appears that the appellant has no qualms with the above first order for he has been admitting throughout that indeed, the sum of Tshs. 15,800,00.0/= was paid to him by the respondent immediately after the pronouncement of the consent judgment by the trial tribunal. His only problem, however, seems to be on the manner in which his counterpart complied with the second order which/ according to him, has prompted him to come up with the claim of Tshs. 28,500,000/= from the respondent which he has termed as accrued/ outstanding rental charges for all the seven years the latter has denied him vacant possession of the suit land. The respondent on her side, has strongly denied those allegations and has gone far by assigning a number of reasons as to why she thinks the appellant is not entitled to be granted the reliefs sought through his memorandum of appeal. X-- -’i At this juncture, I find myself obliged to start with the definition of vacant possession as provided by different sources. At page 309 of the Dictionary of Law, 4th Edn. Bloomsbury Publishing Pic 38 Soho Square, London W1D 3HB (2004), the phrase Vacant Possession has been defined to mean: "...the right to occupy a properly immediately after buying it because it is empty" 17 Although, the facts of the matter between the parties herein do not reveal that the respondent bought the suit premises from the appellant, but just rented it, I still find the above definition to suit the circumstances of the present case because as per the lease agreement, it was expected that after its expiration term, the respondent would give vacant possession to the appellant for him to occupy it properly immediately after vacation of the respondent because it is empty. - :. Again, in the case of NYK Logistics Ltd vs Ibrend Estates (2011) EWCA Civ 683 at page 44 which was referred in the case of Blue Pearl Hotels & Apartments vs Ubungo Plaza Limited & Another (Land Case No. 9 of 2018) [2023] TZHC 20759 (31 August, 2023), Rimer LJ described the phrase vacant possession as hereunder: "...that the property is empty of people and that the purchaser can assume and enjoy immediate and exclusive possession, occupation, and control of it. It must be empty of chattels, although the obligation in this respect is likely only to be breached if any chattels left on the property substantially prevent or interfere with the enjoyment of the right of possession of a substantial part of the property." From the above definition, vacant possession inter alia, entails that the property must be empty of chattels, though sometimes the same may well be 18 left in the property if they do not substantially prevent the owner of the property or interfere with his enjoyment of the right of possession of a substantial part of the property. From the foregoing, the question which comes to the focus is whether the basement and the flooring which the appellant has complained to have been left behind by the respondent on the disputed land, amounts to chattels. My answer to that question is in the negative. '■ In law, the word chattels means an item of tangible movable or immovable property except real estate and things connected with real property. (See: https: //www.merriam-webster.com/dictionary/chattel). It can also be defined as the movable items of property that are neither land nor permanently attached to land or a building either directly or vicariously through attachment to real property. (See: the essay entitled, Land Law on Chattels and Fixtures (2003) by Nyandieka Bundi Julius of Cavendish University. Flowing from the above definitions, it is apparent that the basement and flooring the subject of the dispute between the parties to the instant appeal, do not amount to chattels. More so, even if they could be, still the same could not in my considered opinion, be said to have substantially prevented the appellant of the said property or his quite enjoyment of the such property. 19 On this, I am persuaded to subscribe to the argument of the respondent at paragraph 2.1.7 of her written submission, that the appellant unequivocally accepted the handover of the suit premises which contained the alleged basement (and flooring) without making any complaint to the trial tribunal or to the respondent after the latter had dismantled the telecommunication tower from the disputed land in the past seven years. In my view, the appellant ought to have raised his complaint against the respondent right from the beginning, if he was. not amused with the respondent's act of dismantling the telecommunication tower from the disputed land without removing the said basement and flooring. By keeping quiet for over six years without making any complaint against the respondent in that respect, that omission makes me and perhaps any reasonable man, to believe that the appellant had intended the said basement and flooring to be part of the land whose vacant possession was given to him by the respondent. Hence, inthe circumstances, he cannot be heard now to complain against the respondent for not removing such basement and flooring on the disputed land. Further to the above, there is no dispute that the main contention between the appellant and the respondent is whether the respondent did not satisfy 20 the consent judgment. The answer to that important sub issue cannot well be obtained without appreciating the meaning of execution. Apart from the one provided by the respondent through the aid of various sources which I also subscribe to, execution refers to the enforcement of decrees and orders by the process of the court, so as to enable the decree- holder to realise the fruits of the decree, and it is complete when the judgment-creditor or decree-holder gets money or other thing awarded to him by the judgment, decree or order. (See: the CIVIL PROCEDURE with LIMITATION ACT, 1963, 8th Edn., by Justice C.K. Thackker (Takwani), Former Judge, Supreme Court of India, at page 603 and Overseas Aviation Engg. (G.B.) Ltd., re, (1962) 3 WLR 594: 1963 Ch d 24 (CA). Reverting back to the instant appeal, it is apparent that through the consent judgment, the orders made by the trial tribunal against the respondent required her: i. To pay the appellant Tshs. 15,800,000/= (Fifteen Million, eight hundred thousand only) through the applicants attorney Account and; ii. To vacate and give vacant possession of the disputed land by the end of December, 2015. Basically, those were the only fruits of the said consent judgment the appellant ought to have realised them through a decree passed by the trial 21 tribunal, and the respondent was of course, obliged to comply with the above orders cumulatively so as to be said to have satisfied the said consent judgment. As per the records of both the trial and the executing tribunals, it is crystal clear that the respondent complied with the first order above instantly, and the appellant has conceded to that. However, regarding the second order as shown above, the appellant has been emphatically that the same was not properly complied with by the respondent. •% <, It is a trite law that the decree must agree with the judgment. (See: Frolentina Philbert vs Verdiana Protace Mujwahuzi, Land Case Appeal No. 59 of 2021, TZ HC and Juma Kumugola vs Crdb Pic (Civil Appeal No. 10 of 2022) [2023] TZHC 19645 (1 August, 2023) (all unreported). It is also a trite law that the executing court can only give effect to what was decreed by the trial court and not otherwise. (See: Registered Trustees of Tanzania Society for Prevention of Cruelty To Animals (TSPCA) vs Blue Horizon Tanzania Limited (Misc. Commercial Application 191 of 2018) [2021] TZHC Com D 3395 (4 November 2021). The appellant herein has tried to convince the court believe that apart from the orders described above, the respondent was also ordered to remove the basement and flooring on the disputed land and he has made reference to 22 some clauses from the lease agreement including the one requiring the respondent to restore the suit land to the good order as it was before the contract date. However, it is unfortunate that the contents of the decree passed by the trial tribunal, reveals nowhere that the respondent was ordered to remove the basement and the flooring of the disputed land. As I have discussed in length above, the respondent dismantled the telecommunication on the disputed land and had vacated therefrom long time ago and the appellant never complained either to the respondent or to the trial tribunal for the latter's act of not removing the basement and the flooring therefrom. Even the deed of settlement executed by the parties herein, does not contain such requirement. This means therefore, that the respondent properly satisfied the consent judgment. Similarly, the executing court could not give effect to what was not decreed by the trial tribunal, as it rightly did. Hence, based on the above reasons, I find grounds 1, 2 and 3 to be without merit. The foregoing would suffice for me to find no merit on the second complaint by the appellant regarding none payment of Tshs. 28,500,000/= as rental charges outstanding. However, I will discuss a little bit about that complaint. In the deed of settlement executed by the appellant and the respondent, there is no clause which provides inter alia, to the effect that the respondent 23 shall pay the lessor (appellant) the rental charges outstanding for the period after termination of the lease agreement. Not only that, but also in my careful examination of both the deed of settlement and the decree passed by the trial tribunal, there is nowhere it is stated therein that the respondent should pay the appellant any other sums of money than the ones ordered at romans (i), (ii) and (iii) of the passed decree. Likewise, I find the case of Finca Tanzania Mfe Ltd vs Francis Mwakajonga [2020] T.L.R. 311 referred by the appellant at page 4 of his written submission, to be distinguishable to the circumstances of the case at hand because his argument regarding hone payment of compensation against the respondent, emerged not during hearing of the suit before the trial tribunal, but during execution proceedings. Hence, it cannot be held that the appellant strictly proved the amount of special damages needed to be paid by the respondent, . The rule that special damages must not only be proved, but must be strictly proved, applies only during the trial where the parties are expected be bound by their own pleadings, and not during execution proceedings in which the executing court is expected to give effect to what was decreed by the trial court. Thus, owing to the foregoing reasons, I find the fourth ground of appeal to be unmerited. 24 It follows therefore, that due to the reasons herein assigned above, I am of the settled view that the present appeal lacks merit and is bound to be dismissed with costs, as I hereby do. It is so ordered. JUDGE 04.09.2024 DATED at SUMBAWANGA this 4th day of September, 2024. 25