Land Appeal No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 28044 OF 2023 (Arising from the decision of Mwandege Ward Tribunal in Land Case No. 16 of2017 and decision of the District Land and Housing Tribunal of Mkuranga in Execution No. 07 of2023) LAZARO MBISE............................................................... 1st APPELLANT AISHA A. MAGANGA........................................................2nd APPELLANT VERSUS COAST FOOD AND FARMING CO. LTD.................................. RESPONDENT JUDGMENT Date of last Order: 13/6/2024 Date ofJudgment: 28/6/2024 A, MSAFIRI, J, The appellant herein having been dissatisfied with the decision of the District Land and Housing Tribunal for Mkuranga (the District Tribunal) In Misc. Application No. 07 of 2023, has lodged this appeal advancing two (2) grounds of appeal as follows; 1. That, the learned Chairperson erred in law to hold that the appellants were seeking for quashing the decision of the Ward Tribunal instead of the actual challenge of the appellants that there.J\^ /li i is no decree capable of being executed in favor of the respondent against the appellants. 2. That, the learned Chairperson erred in law to hold that the appellants ought to have appealed or revised the decision or decree sought to be executed since it does not touch the appellants and could not appeal against the decision which has no harm to them. The appellants prayed for the appeal to be allowed with costs. The appeal was heard by way of written submissions and the submissions in chief in support of appeal was drawn and filed by Mr. Benedict Bagiliye, learned advocate while the reply submission contesting the appeal was drawn and filed by Ms. Juliana Mumburi, learned advocate. Before determining the grounds of appeal, the brief background of the dispute is apposite. This dispute originates from Shauri No 16 of 2017 at Mwandege Ward Tribunal. The now respondent Coast Food and Farming Co. Ltd instituted a case against the seven (7) people including the now two (2) appellants. The respondent's claims against the said people (then respondents) were that they have trespassed into her land which she has purchased using one Tony A. Mapunda. That the farm land was purchased from Sultan Said Mnyoge (who was the 1st respondent) but now the respondents have trespassedinto the said farm. The now respondent prayers before the Ward Tribunal was for the order for eviction of the respondents from her farm and that her ownership to be restored. 2 After hearing, the respondent's prayers were granted and the trial Tribunal ordered the suit farm to be restored back to the applicant (now respondent) and also ordered the respondents to vacate the said suit farm. Following that decision, the now respondent filed Application No.07 of 2023 before the District Tribunal seeking to execute the order of the trial Tribunal. The appellants raised an objection, contesting the execution that the trial Tribunal did not state the size of the suit farm or the area of the farm which the respondent claims for possession. The District Tribunal overruled the objection and granted an application for execution. The appellants were dissatisfied and now they have filed this appeal. Before submitting on the grounds of appeal filed in court, Mr Bagiliye raised a new issue that on careful reasoning, the appellants have discovered the decree sought to be challenged is a nullity as the trial Tribunal had no jurisdiction to entertain claims of the respondent which were initiated by a stranger to the case. That the case at the trial Tribunal was initiated by one Anthony Ambrose Mapunda who is nothing to the company and did not have registered power of attorney to give him powers to sue for recovery of land. He adamantly submitted that despite that the raised issue was not one of the grounds of appeal, but it is on. 3 point of law which may be raised at any point even on appeal. He urged the court to invoke its revisional powers to nullify the proceedings of the trial Tribunal. To support his point, he cited the case of Mantiri Ng'unda vs Herman M. Ngunda, Civil Appeal No. 8 of 1995 CAT (Unreported). On the grounds of appeal, Mr Bagiliye submitted on the first ground that the Hon. Chairperson erred in holding that that the appellants were seeking to quash the proceeding of the Ward Tribunal (herein trial Tribunal) while what the appellants were challenging that the decree sought to be executed against the appellants is not a decree against them as from the decision of Mwandege Ward Tribunal there is nowhere the appellants have been mentioned to have encroached into the land of the respondent. He submitted further that the decision of the trial Tribunal went on to mention the name of a stranger to the case who was not a party to the case before the trial Tribunal. He said that the impugned decision mention the names of Salehe Said Fundi who was never party to the case. On the second ground, Mr Bagiliye averred that the Hon. Chairperson erred to hold that the appellants ought to have appealed or revised the decision or decree sought to be executed. He explained that the 4 appellants could not have appealed or revised the impugned decision since the proceedings at the trial Tribunal did not mention them as trespassers to the land of the respondent. He argued that the decision of the trial Tribunal has nothing to do with the appellants as their names are nowhere to be found in the proceedings or decision of the trial Tribunal. He prayed for the court to nullify the proceedings and decision and allow the appeal. In reply, Ms Mumburi, counsel for the respondent submitted that the raised issue by the counsel for the appellant is not on a point of law but it is a point of fact which requires evidence. That the respondent has shown that Anthony Ambrose Mapunda was an officer of the respondent holding a registered Power of Attorney. She submitted on the first ground that the records of the Tribunals speak for themselves. That before the District Tribunal, the counsel for the appellant did not submit that they were not parties, nor did he submit that they were not trespassers. That he only submitted as regards to failure of the now respondent to describe the size of the land in terms of Order VII Rule 3 of the Civil Procedure Code Cap 33 R.E 2019 (the CPC). That the District Tribunal Chairperson was right to decide that such an objection cannot be raised at execution. Ik. . r 5 On the second ground, Ms Momburi submitted that the appellants were parties to the proceedings and decision of the trial Tribunal. That the appellants were the 3rd respondent and 7th respondents respectively. She added that the decision also touched all the seven respondents including the appellants. She prayed for the court to disregard the appellants' submission and dismiss the appeal with costs. I will start determining the new issue which Mr. Bagiliye has raised pertaining jurisdiction of the trial Tribunal. That the trial Tribunal had no jurisdiction to entertain the claims filed by the stranger to the suit. In this, I don't agree with the counsel for the appellant that the raised issue is about the jurisdiction of the Tribunal. I am of the view that the new issue is about the locus standi of Anthony Mapunda who instituted a suit for/on behalf of Coast Food and Farming. And I find it not on pure point of law as it needs evidence to ascertain whether the said Anthony Mapunda had mandate or was capable of instituting a suit for Coast Food and Farming Co. Ltd. This is not a pure point of law to be raised at the appeal stage as it needs evidence to prove the claims of the appellants that one Anthony Mapunda was not an officer of the respondent and was nothing to the company as 6 it was put by the counsel for the appellants. I find further that this point could have been raised during the proceedings of the matter at the lower stage. For that reason, this court sitting as an appellate court cannot entertain it as it needs evidence. It is hereby disregarded. On the first ground of appeal, Mr Bagiliye counsel for the appellants has argued that the decree is not executable against the appellants as there is nowhere in the proceedings or in the decision of the trial Tribunal where the appellants have been named to encroach or trespass into the farm of the respondent. At pages 12 and 14 of the handwritten decision of the trial Tribunal, it was held that; "Kwamba, kutokana na Sheria ya Ardhi Na.4 na Na. 5 ya Mwaka 1999 ni wazi wadaiwa kwa makusudi wamevamia shamba la mdai Coast Food and Farming Co. Limited na iihaii wakijua kuwa kufanya hivyo ni kosa kwa mujibu wa Sheria.... "(emphasis added). " Baraza hili Hnawaamuru wadaiwa wote kumuachia shamba lake Mdai Coast Food and Farming Co. Limited mara moja kuanzia sasa " The above quoted paragraphs mean that the trial Tribunal has satisfied itself that it was the seven respondents (the appellants included) who have trespassed into the disputed farm claimed by the applicant < 7 (respondent) and it ordered all respondents to vacate the farm of the applicant. Therefore Mr Bagiliye's argument that the appellants are not mentioned anywhere in the proceedings and decision of the trial Tribunal cannot stand. The appellants were among the seven (7) respondents at the trial Tribunal. According to the proceedings of the trial Tribunal, the appellants were summoned to appear before the Tribunal but for the reasons known to themselves they refused to enter appearance. I find that the proceedings and decision of the trial Tribunal included all the respondents in the suit. Furthermore, I have gone through the proceedings of the District Tribunal in Misc. Application No. 07/2023, an application for execution by the respondent. During the hearing of the said application, the appellants were represented by Mr. Bagiliye. In his submission to show cause, the counsel's arguments were two; first, that the appellants did not attend during the trial but it is not a bar to the applicant to continue to prove the case against the respondents, second; that the applicant did not prove the size and location of the land which is claimed to be encroached 1] I 8 Looking at the submissions/ arguments by the counsel for the appellants during the application for execution, the issue that the decree is not executable against the appellants due to the fact that they were not named in the proceedings or decision was not raised at the application for execution. Therefore the Hon. Chairperson could not have determined on the issue which was not raised before her and for that, she did not error in her decision. I dismiss this ground of appeal. On the second ground, the appellants' arguments are the same that they did not have to appeal or revise the decision of the trial Tribunal as it did not mention them as trespassers to the land of the respondent. I have already found that the decision of the trial Tribunal included the appellants as they were parties to the case being sued as the respondents. The counsel for the appellants stated that the appellants were not mentioned in the decision but the same name one Salehe Said Fundi who was not a party to the suit. Indeed the typed decision of the trial Tribunal name one Salehe Said Fundi not to disturb the applicant in the use of the applicant's area. However those words and names does not appear in the handwritten decision showing that there was a typing error. 9 Nevertheless whether the decision named a stranger to the suit or not, it still includes the appellants being among the respondents. It is not a duty or obligation of the appellants to speak out for Salehe Said Fundi as it does not change the fact that the appellants were part to the suit and the decision on that suit includes them as trespassers. For this reason, I also find the second ground to have no merit and it is also dismissed. To sum up, I find the issues raised by the appellants and the grounds of appeal to have no merit. I dismiss the entire appeal with costs. Right of further appeal explained. 10