lucia milanzi vs agnes komba administrator of deceased estate of uledi sadiki chenga 2023 tzhc 18776 27 june 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA LAND APPEAL NO.7 OF 2022 (Originating from the District Land and Housing Tribunal for Mtwara at Mtwara in Wise. Land Application No.540 of2021) LUCIA MILANZI............................. ....... ...APPELLANT VERSUS AGNES KOMBA (Administrator of deceased Estate of ULEDI SADIKI CHENGA)..................... RESPONDENT RULING &27h June 2023 LALTAIKA, J. The appellant, LUCIA MILANZI, is dissatisfied with the decision of the District Land and Housing Tribunal for Mtwara (the DLHT) in Misc. Land Application No.540 of 2021. The impugned ruling was delivered on .18/3/2022 by Hon. H.I. Lukeha, Chairman. The appellant has filed the present appeal to this court on three (3) grounds, as stated in her memorandum of appeal. Page 1 of 7 On 13th March 2023, the respondent lodged a Notice of Preliminary Objection on a point of law, stating that "this appeal is incompetent and bad in law as it emanates from the ruling and order of execution." When this matter came up for hearing of the preliminary objection on 2/5/2023, Mr. Issa Chiputula, learned counsel, appeared for the respondent, and also held brief for Mr. Mkali, who represents the appellant. Consequently, the hearing of the preliminary objection was consented to be disposed of through written submissions. Furthermore, on 8/6/2023, the matter was mentioned for necessary orders to ascertain if the parties had complied with the previous order of this court. On that date, Mr. Rainery Songea, learned counsel, appeared, and also held brief for Mr. Mkali, learned counsel. It was found that the parties had complied with the order of this court issued on 2/5/2023. I thank the learned counsel for their dedication and move on to summarize their submissions as I hereby do. In submitting the preliminary objection, Mr. Songea contended that the appeal is incompetent and bad in law as it emanates from the ruling and order of execution. The learned counsel argued that the issue at hand is whether the execution order is appealable. However, Mr. Songea acknowledged that he was aware of and mindful of the landmark decision of MUKISA BISCUITS MANUFACTURING CO. LTD VS WEST END DISTRIBUTORS LIMITED (1969) EA 696, which emphasized that the objection must be on a pure point of law. He stressed that the present appeal originated from the DLHT for Mtwara in Misc. Land Application No.540 of 2021, which was an application for execution. Page 2 of 7 Furthermore, the learned counsel for the respondent contended that the guiding principle in respect of the matter at hand is section 74(1) together with Order XL of the Civil Procedure Code. The learned counsel submitted that section 74(1) and Order XL of the Civil Procedure Code provide for several orders that are appealable before this court. He further argued that throughout the above provision, the execution order is not mentioned. Mr. Songea further contended that the law does not give the right for an aggrieved party by the ruling and order of execution to open the door of the court through the appeal. The learned counsel stressed that the appeal is untenable, and the case of Mukisa Biscuit (supra) comes into operation, stating that an objection must be based purely on a matter of law. Therefore, he submitted that the appellant violated the law by filing an appeal to an order that is not appealable. To bolster this position, the learned counsel submitted that this court has already given direction on the matter at hand through various decisions, including the case of KALEBU KUBOJA MJINJAVS SHADRACK DANIEL TEEMBE, CIVIL APPEAL NO.24 OF 2019 HCT AT MUSOMA. Mr. Songea further submitted that since the appellant failed to comply with the law, the remedy is to strike out the entire appeal, as observed in the case of Chacha NYIKONGOR0 VS. NDEGE KISEKE, MISC. LAND APPEAL NO.145 OF 2020 HCT AT MUSOMA (unreported). In addition, the learned counsel argued that despite the fact that the execution proceedings are not appealable, it does not mean the end of the Page 3 of 7 matter. He stated that the available remedy for the appellant is to file an application for revision of the execution proceedings, as observed in the case of KALE BU KUBOJA MJINJA (supra). He maintained that the appellant may litigate the questions relating to execution under section 38 of the CPC or may file a reference to this court under Order XU, Rule 1 of the Civil Procedure Code. Therefore, the learned counsel argued for this court to strike out the appeal with costs. In reply, Mr. Mkali submitted that the preliminary objection is completely irrelevant. He contended that he moved this court by way of appeal in order to consider the propriety and impropriety of the matter. The learned counsel further submitted that the present appeal is guided by section 74(l)(c) of the Civil Procedure Code [CAP 33 R.E. 2019]. Mr. Mkali stressed that the provision of the law provides for an order from which an appeal shall lie, including "an order modifying or correcting an award." He maintained that the provision of the law implies generally, in a legal perspective, that any order that alters or corrects an award is appealable, including an execution order. Additionally, the learned counsel for the appellant argued that the execution order granted under Misc. Land Application No.540 of 2021 is distinctly different from the original order from Land Application No.09/2016. He insisted that the executing Chairman made modifications and corrected the decision of the trial chairperson by visiting the locus in quo-anti creating a new boundary for the suit premises, which is dissimilar to the order delivered by the trial chairman. He claimed that the executing Page 4 of 7 Chairman visited the locus in quo with an advocate who represented neither party during the trial of the suit. Mr. Mkali contended that this was contrary to the principles of visiting the locus in quo, as stated in the case of NIZAR M.H. LADAK VS GULAMALI FAZAL JANMOHAMED [1980] LTR 29. The learned counsel emphasized that, under these circumstances, the matter requires the intervention of this court to protect the rights of the appellant. He prayed for this court to overrule the preliminary objection with costs. Having gone through the submissions for and against the preliminary objection, I am now inclined to decide on the merit or otherwise of the preliminary objection raised by the respondent. Indeed, the present matter has its origin from Misc. Land Application No.540 of 2021 before the District Land Housing Tribunal for Mtwara, whereby the appellant was among the decree holders and had applied for the execution of a decree in Land Application No.09 of 2016. The issue at hand is whether a party to the matter of execution order or proceedings, when aggrieved, may appeal to this court. At this juncture, I must clearly state that what was being executed or enforced was a decree passed in favor of the decree holders by a competent court or tribunal, and not as an award, ruling, or judgment. Mr. Mkali had defended his choice to appeal against the order of execution or proceedings, relying on section 74(l)(c) of the Civil Procedure Code, which pertains to an order modifying or correcting an award. However, neither section 74 nor Order XLl Rule 1 of the Civil Procedure Code list an execution order or proceedings as appealable to this Page 5 of 7 court. Therefore, I agree with Mr. Songea that the appellant may litigate the questions relating to execution under section 38 of the Civil Procedure Code or file a reference to this court under Order XLI, Rule 1 of the Civil Procedure Code. Nevertheless, the appellant chose to appeal against the execution order to this court. This is legally and procedurally erroneous. I am persuaded by the decision of my brother his Lordship Siyani, J (as he then was), in the case of IGNASIO IGNAS VS ROSE HANSELEM M PAN GALA, CIVIL APPEAL NO. 65 OF 2017, HCT at Dar es Salaam (unreported), where he stated: "In the final analysis, I agree with counsel Roman that issues ofjurisdiction of the court in orders which are not appealable under either section 74 or Order XXI (sic) Rule 1 of the CPC can be challenged by way of revision under section 78 (supra). Allowing appeals against any order relating to execution, which were not intended by the drafters of our laws to be appealable, and where the law provides other mechanisms for challenging them, will open a floodgate of endless litigations." With that being said, the present appeal is incompetent before this court. Consequently, I strike it out with no order as to costs. It is so ordered. 27.06.2023 Page 6 of 7 Court: The ruling was delivered this 27th day of June 2023 in the presence of Mr. Issa Chiputula Counsel for the respondent and in the absence of the appellant. JUDGE 27.06.2023 Page 7 of 7