Judgment marco

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MWANZA

AT MWANZA LAND APPEAL NO. 7614 OF 2024 (Arising from the decision of the land and housing tribunal for Mwanza at Mwanza in Misc Application No. 334 of 2023) MARCO PETRO & 4 OTHERS ……………………………………………. APPELLANTS

VERSUS VENERANDA BOSCO MANJI & 15 OTHERS …………………….. RESPONDENTS

JUDGEMENT 10 & 27 September 2024 th th CHUMA, J. Aggrieved by the decision of the District Land and Housing Tribunal for Mwanza (herein the DLHT) in Misc Application No.334 of 2023 the appellants preferred this appeal fronting two grounds of appeal as follows; 1. That the trial tribunal erred in law and facts in holding that the decree in execution does not show the boundaries and hence is un-executable contrary to the order of the High Court in Land Appeal No. 57/2023.

2. That the trial tribunal erred in law and facts by raising a new issue in the ruling which was not the subject of the Misc. Land application No. 334/2023. This appeal proceeded ex-parte against the respondents who entered no appearance in court for trial despite being served with a summons to 1 appear. The appeal was argued by the appellants through a written submission filed by Mr. Dioniz Mwasi Learned advocate. In his submission, Mr. Dioniz began by abandoning the second ground of appeal. As to the remaining first ground, he argued that this appeal emanates from the application for objection proceedings by the respondents alleging to have an interest in the disputed land obtained from Daud Kulwa a litigator in all previous cases related to the disputed land including appeal No. 73/2015 vacant possession was ordered a decision unchallenged to date. After that decision, the appellants successfully applied for execution at the District Land and Housing Tribunal. Dissatsfied with that decision the judgment debtor unsuccessfully appealed to this court via Land Appeal No. 57/2023 claiming that the decree in Land Appeal No. 73/2015 was un- executable for want of the proper boundaries’ description. He went on to explain that while appeal No. 57/2023 is still pending before this court the respondents filed objection proceedings before the tribunal claiming to have an interest in the

disputed land. In its final verdict, the tribunal on pages 10 and 11 decided that the execution order was not executable for failure to describe the boundaries of the disputed land hence this appeal. It was 2 further argued that the decision of the tribunal disregarded the decision of this court in Land Appeal No. 57/2023 where the issue of boundaries description was settled. Also, Mr. Dioniz asserted that by executing the decree in Application No. 96/2023 the trial tribunal was functus officio in determining the issue of boundaries. He referred this court to a case of Kamundu Vs. R (1973) EA 540 where the Court of Appeal held that; “A court becomes functus officio when it disposes of a case by a verdict of a guilty or passing sentence or making some orders finally disposing of the case. He finally prayed this appeal to be allowed with cost”. I have carefully examined the record rival submissions of Mr. Dioniz advocate for the appellants, the issue before this court for determination is whether this appeal is meritable or otherwise. The Records indicate as rightly submitted by Mr. Dionz advocate for the appellants that this appeal results from Objection proceedings in Misc. Land Application No. 334/2023 arising from Application No. 96/2023 and Land Appeal No. 73/2015. In that application preferred under Order XXI Rule 57(1), 58 and 59 of CPC Cap 33 RE 2019 the applicants were

seeking the trial tribunal to investigate the claim that the applicants are owners and have 3 premises situated at Kitongoji cha Ng`wandulu at Kisesa ‘A’ Ward in Magu District as described by sales agreement annexed to the applicant’s affidavit. And the cost of the application. It is an indisputable fact that the trial tribunal on pages 10 and 11 of its decision discussed or determined the issue of boundaries description contrary to what was tabled before it as per chamber summons. In other words the trial tribunal instead of determining objection proceedings went ahead by deciding that the execution order was unenforceable because the boundaries of the disputed area were not indicated. If I may go further, In doing so went contrary not only to the decision of this court in Land appeal No. 57/2023 but also its findings in Misc application No. 96/2023 which allowed execution of a decree arising from Land appeal No. 73/2015 to proceed after dismissing the issue of boundaries description. For ease of reference, I quote the party of its findings on page 4 paragraph 2 of the referred ruling which reads; “Kwa msingi huo basi maombi ya utekelezaji wa tuzo ya Mahakama Kuu kwenye rufaa Na. 73/2015 yamekubaliwa”. 4 Having pointed out the above deficiency, I quash the proceedings of the District Land and Housing Tribunal and set aside its decision. Since the objection proceedings remained unattended as herein above discussed, I order retrial before another Chairperson with requisite jurisdiction to entertain the matter. The appeal is then allowed to the extent stated. Owing to the circumstance of this matter I desist from making an order for cost. DATED at MWANZA this 27th Day of September 2024. W. M CHUMA

JUDGE 5 Judgment Delivered in court before the appellants and in absence of the respondents this 27th day of September 2024. C. KISONGO

DEPUTY REGISTRAR 6