mangula village council vs ally juma kapesa 2020 tzhclandd 2208 8 may 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISCELLENEOUS LAND CASE APPEAL NO. 82 OF 2019 (From Appeal Judgment of District Land and Housing Tribunal for, Land Case Appeal No. 173 of 2017, originating from the Ward Tribunal of Mkuia Ward in Application No.67of2017) MANG'ULA VILLAGE COUNCIL........................................ APPELLANT VERSUS ALLY JUMA KAPESA................... RESPONDENT JUDGMENT OPIYO J. The matter originates from an ex-parte judgement of the Ward Tribunal of Mkuia Ward in an Application No. 30 of 2017 which was delivered on 25th May 2017 in favour of the respondent herein Ally Juma Kapesa. The decision remained unchallenged and the respondent successfully went on to apply for execution vide Misc. Application No. 67 of 2017 at The District Land and Housing Tribunal for Kilombero/Ulanga District on 11th September, 2017. Later on the 20th September 2017, the appellant lodged an application before the District Land and Housing Tribunal for Kilombero/Ulanga District vide Misc. Land Application No. 173 of 2017 seeking for an orders of extension i of time to file revision against the ex-parte decision of Mkula Ward tribunal out of time, an order to reverse the judgement and proceedings of the Land Case No. 30 of 2017, delivered by Mkula Ward Tribunal and order for stay of execution ordered in Misc. Application No. 67 of 2017, costs of the application and any other relief that, the tribunal could grant. The application was struck out after being objected to by the respondent. It is against that background, the appellant has lodged this appeal on the following grounds:- 1. That, the trial tribunal erred in law and facts for its failure to provide any reasons as to how the first prayer was improper. 2. That, the trial tribunal erred both in the law and facts for the failure to consider that the prayers on that application were three, but giving only the reasons for prayer number two while leaving third prayer with no clarification. The appeal was heard orally, Hiyasinti Libandaita (solicitor) appeared for the appellant while the respondent appeared in person. Submitting for the appeal, Mr. Hiyasinti Libandaita for the appellant argued that, in the chamber summons before the District Land and Housing Tribunal as a trial tribunal they had advanced three prayers, but the tribunal did not state why they failed in all prayers. The counsel for the appellant went on to argue that, in the first place, the Ward Tribunal had no jurisdiction to determine the matter and the reason for the case to proceed ex parteat the Mkula Ward tribunal was not intentional rather, the appellant was not aware of the proceedings, 2 the matter was heard without affording the appellant the right to be heard. Therefore the decision was to be quashed after his prayer was granted and application to this effect brought to court. Replying to the submissions by the appellant, the respondent argued that, the Ward tribunal was right in its decision. The matter started in 2011 at Mang'ula Ward Tribunal in Land application No. 5 of 2011. It was followed by series of appeals. Firstly the respondent successfully appealed at the District Land and Housing Tribunal for reasons that the case was filed at a wrong tribunal as the same was supposed to be filed at Mkula Ward Tribunal instead of Mang'ula Ward Tribunal and he won. The appellant went to the High Court of Tanzania Land Division vide Land Appeal No. 72 of 2012, seeking to challenge the decision of the District Land and Housing Tribunal of Kilombero, unfortunately the appeal was dismissed for want of prosecution. Later on she applied for a restoration of her appeal at the High Court of which they were allowed by Hon. Rumanyika J. and at the end the decision came out upholding that of the District Land and Housing Tribunal that the matter was to be filed at Mkula Ward Tribunal and not Mang'ula Ward Tribunal. Following the decision of the High Court, the respondent lodged a case at Mkula Ward tribunal as directed. The appellant was served but didn't appear and the case was heard and decided ex parte in favour of the respondent. He then filed an execution of the said ex parte decree, the appellant was served again, but did not appear. Execution order was granted. That is when the appellant woke up to desiring to challenge the execution. Therefore, in the circumstances, the respondent was of the view 3 that, this appeal is baseless, the appellant lacks reasons for the same and it should be dismissed. In the rejoinder, Hiyasinti insisted that, the suit land is about 100 acres belonging to Mang'ula village and the said village leases that piece of land to sugarcane cultivators and it had never had any dispute before this one. However there was a dispute of boundaries between Mang'ula A village and Sole village which has led to invasion of the suit land by villagers taking advantage of the said dispute between the two villages. He therefore, reiterated his prayer that the appeal be granted to enable them challenge the orders in the lower court. I have considered the submissions by both parties and also went through the records related to the appeal at hand. The facts that came out from such perusal of records is that, the Misc. Land Application No. 173 of 2017 which forms the basis of the appeal at hand was struck out for being improperly filed at the trial tribunal after being objected to by the respondent. In other words the parent application was not determined on merit. The matter was struck hold in upholding the objection related to competency of the matter before the court. As that was not the ultimate decision of the trial District Land and Housing tribunal of Kilombelo/Ulanga District, then it is obvious to say that the competence of the present appeal too is questionable. I'm afraid to say that the same shall suffer the consequences for being incompetent and improperly filed before me. 4 The application before the District land and Housing Tribunal was for extension of time to file revision and at the same time an application for the revision itself and for stay of execution. The tribunal found the application to have improper blend of prayers rendering it incompetent before it, as read in the tribunal's decision. It consequently struck it out for that. Given the circumstances, in my considered view, this appeal was not supposed to be filed in the first place as the original application was not heard on merit as seen herein above. The proper remedy was to file a fresh application to the same tribunal while adhering to the directions given in the impugned ruling. The tribunal noted at last but one paragraph, page 2 of the impugned judgement that, the tribunal could not reverse and at the same time entertain application for extension of time to file the same revision. Thus, the argument that the Chairman did not give reasons is baseless. Reasons were precisely stated and in my view, they were very sound reasons sufficient to dispose of the matter. Simple logic reveals that application for extension of time cannot be entertained together with the application it seeks to bring in court if granted. That means, the subsequent contemplated application for which leave of the court was applied for to be filed out of time was in fact filed out of time with no necessary leave of the court at leave was yet to be granted. The chairman therefore acted properly by striking out the incompetent application to give the appellant a chance to bring to court a proper application (see Ngoni Matengo Coorporative Marketing Union Ltd versus Ali Mohamed Osman (1959), EA 577. But instead 5 of grabbing that opportunity she preferred this appeal which in the onset, I perceive to be baseless. For the reasons earlier given, I accordingly dismiss the appeal for lack of merits costs shall follow the event. Ordered accordingly. M. P. OPIYO JUDGE 8/5/2020 6