Mathias Rweyemamu JUDGMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

BUKOBA SUB REGISTRY

AT BUKOBA CIVIL APPEAL NO. 1529 OF 2023 (Arising from Bukoba District Court Civil Case No. 01 of 2022) MATHIAS RWEYEMAMU…………………………...………….……...…… APPELLANT

VERSUS ESTER BENARD…………….…………………………….…...………1ST RESPONDENT LIVINGSTONE TIBENDA………………………………….............2ND RESPONDENT LAMECK JOHN ERASTO………………………………..……………3RD RESPONDENT

JUDGMENT OF THE COURT Date of last order: 15/07/2024 Date of Judgment: 27/12/2024 BEFORE: G.P. MALATA, J. This appeal emanates from the District Court for Bukoba whereby the appellant emerged the losing party, hence the present appeal. In nutshell, on 28/08/2019, the District Land Housing Tribunal for Kagera issued an order of temporary injunction via Misc application no. 225 of 2019 arising from land application no. 82 0f 2019 of DLHT for Kagera restraining all the respondents, their agents, workers or assigned from entering, occupying, registration of Page 1 of 18 ownership or transfer of ownership, constructing any structure or carrying on any activities in the disputed land pending hearing and determination of land application no. 82 of 2019. The appellant instituted a suit before the District Court for Bukoba claiming for damages of totaling TZS 200,000,000/= against the appellants for breaching the order of the District Land and Housing Tribunal for Bukoba in Land Application No 225 of 2019 made on 28/08/2019. The trial court (The District court for Bukoba) dismissed the suit for want of merits, inter alia that, the suit is more of criminal and land in nature rather than a normal civil case. Aggrieved thereof, the appellant appealed to this court armed with four grounds of appeal.

1. That the trial court after had found the evidence and pleadings proved more criminal in nature of contempt of court orders grossly erred in law and fact for not granted the relief prayed by appellant in plaint for punitive and exemplary damages and general damages against the wrong doers respondents.

2. That the trial court grossly erred in law to dismiss the suit for want of jurisdiction which it has, to save the respondents from suffering of damages which they did not disputed. Page 2 of 18 3. That it was illegal for the trial court to raise an issues of jurisdiction suo motto against the reliefs claimed by the appellant and dismissing the entire case for want of jurisdiction without affording the Appellant with an opportunity to be heard.

4. That the trial court misconceived the requirement of section 4(2) of the Land Disputes court Act cap 2016 R.E 2019 to dismiss the competent suit that the district court has no criminal jurisdiction in all proceedings of criminal nature under the Land Act and Village land Act. When this case came for hearing both parties appeared. The applicant appeared in person whereas the respondents enjoyed the services of Mr. Alli Chamani learned counsel. Submitting in support of the appeal, the appellant stated that, the trial court suo motto raised point of law and dealt with it without affording parties right to address on the same. Both parties argued the appeal. Apart from hearing the appeal, this court suo motto raised point of law and asked both parties to address thereof. The point of law was to the effect that; Whether the temporary injunctive Order by the District Land and Housing Tribunal for Bukoba in Land Application No 225 of 2019 made on 28/08/2019 was ever been extended in terms of Rule 3 Page 3 of 18 and 4 of Order XXXVII of the Civil Procedure Code, Cap.33 R.E.2019 thus legally surviving and capable of being a source of cause of action of Civil Case No. 01 of 2022 of the Bukoba District Court by the plaintiff/appellant. Bearing in mind the above point of law, this court commenced with its determination of the same before going to the merits of appeal. Both parties

were invited to address on the same. Submitting on the point of law, the appellant, Mr. Mathias Rweyemamu who is also an enrolled and practicing Advocate of Tanzania stated that, the injunctive order dated 28/8/2019 is still existing to date. He submitted further that, the issues of temporary injunction orders before the District Land and Housing Tribunal are regulated by Land Disputes Courts Act, Cap.216 R.E.2019 with its regulations of 2003. G.N.N 174 of 2003 which do not provide for time limit or required extension of time. He finalized his submission by stating that, the order was given under Rule 22 (d) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, 2003. The Regulation reads that; The chairman shall have powers determine: - (d) interlocutory application. Page 4 of 18 He also submitted that, the Regulations are self-contained and has no lacuna demanding for invocation and application of the Civil Procedure Code, Cap.33 R.E.2019 in the circumstances. In reply thereof, Mr. Alli Chamani learned counsel for the respondents stated that, the source of dispute is an order by the District Land and Housing Tribunal in Application No. 225 of 2019 issued on 28/08/2019. The District Land and Housing Tribunal determined the same under Regulation 22 (d) of the Regulations 2003, GN 174/2003. Moreover, it exercised mandates under section 51 (2) of the

LCDA Cap. 216 R.E 2019 in case of lacuna in the Regulations, thence apply Civil Procedure Code, Cap.33 R.E.2019. Mr. Alli Chamani argued that, the order dated 28/08/2019 led to institution of Civil Case No. 1 OF 2022. In the chamber summons of application No. 225 of 2019, the applicant moved the District Land and Housing Tribunal under Order XXXVII Rule 1 (a) and 2 (1) of the CPC and Regulation 22 (d) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003. The applicant was therefore aware of what he was doing and the law applicable thereto. He applied CPPC knowingly that, the said Regulations are not exhaustive. Temporary injunctive order has life span of six months unless is it is extended on request. The same is provided under Rule 3 of Order XXXVII of the CPC. Page 5 of 18 Mr. Alli Chamani stated that, Civil Case No. 1 of 2022 was instituted in 2022 when the six months had already expired. Further the alleged violation has nothing to do with order dated 28/08/2019 as it was no valid by virtue of Rule 3 of Order XXXVII of the CPC as it expired on February, 2020 and no extension ever been sought and granted. That, there was no cause of action as the order dated 28/08/2019 had no effect for having been ceased to exist. Indeed, the plaintiff/appellant did not pin point as to when exactly the respondents stood and violated the Tribunal’s order

dated 28/08/2019. Order XXXVII Rules 2 and 3 of the CPC are hereby reproduced for easy of reference. Rule 2 reads that; (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant form committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right: Provided that, no application shall be made for a temporary injunction where the defendant is the Attorney- General but, in such case, the Page 6 of 18 plaintiff may apply to the court for an order declaratory of the rights of the parties. (2) In case of disobedience or of breach of any such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached and may also order such person to be detained as a civil prisoner for a term not exceeding six months, unless in the meantime the court directs his release. (3) No attachment under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached

may be sold, and out of the proceeds the court may award such compensation as it thinks fit, and shall pay the balance, if any, to the party entitled thereto”. Rule 3 reads that; “In addition to such terms as the keeping of an account and giving security, the court may by order grant injunction under rule 1 or rule 2 and such order shall be in force for a period specified by the court, but not exceeding six months: Provided that, the court granting the injunction may, from time to time extend such period for a further period which in the aggregate Page 7 of 18 shall not exceed one year, upon being satisfied, on the application of the holder of such court injunction that the applicant has diligently been taking steps to settle the matter complained of and such extension sought is in the interest of justice, necessary or desirable”. The mode of preferring an application before the tribunal/court is regulated by Civil Procedural Code, Cap.33. R.E.2019 unless there is specific law providing for the same. However, if the specific law does not provide exhaustively for the procedure, litigants, tribunal/court have to revert to the application of general law on procedure, the Civil Procedural Code, Cap.33. R.E.2019 in case of civil litigation and Criminal Procedure Act, Cap.20 R.E.2022 for criminal matters. The Proceedings in the Court of Appeal is regulated by the Appellate

Jurisdiction Act, Cap.141 R.E.2019 and the Tanzania Court of Appeal Rules, R.E. 141 2019. Having ready Order XXXVII, this court assembled that; one, all temporary injunctive orders are sought and granted under the said Order, two, all temporary injunctive orders have life span for a period specified by the court, but not exceeding six months, three, the tribunal/court granting the injunction order may, from time to time extend such period in which its aggregate shall not exceed one year, upon being satisfied, on the application of the holder of such court injunction that the applicant has diligently been taking steps to settle the matter complained of and such extension sought is in the interest of justice, necessary or desirable, Page 8 of 18 four, in case of disobedience or of breach of any such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached and may also order such person to be detained as a civil prisoner for a term not exceeding six months, unless in the meantime the court directs his release. Five, on application of the holder of such court injunction that, the applicant has diligently been taking steps to settle the matter complained of and such extension sought is in the interest of justice, necessary or desirable. The rationale behind having such time limit is to maintain status quo

during determination of the matter on merits and compel the parties to expedite in hearing the case rather than invoking the injunctive order as delaying tactics. Rule 22 (d) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, 2003 provides for powers of the Tribunal to entertain temporary injunctive applications. However, the Regulations is silent on the mode of application and all issues need to be attached to injunctive order as stated in Order XXXVII of the CPC. This mean that, the applicant and Tribunal must invoke section 51 (2) of the LCDA Cap. 216 R.E 2019 and apply Civil Procedure Code in particular Order XXXVII of the CPC. The section reads that; Page 9 of 18 “The District Land and Housing Tribunals shall apply the Regulations made under section 56 and where there is inadequacy in those Regulations it shall apply the Civil Procedure Code”. The order by the tribunal claimed to have been violated by the respondents was issued on 28/08/2019 whereas the plaintiff filed Civil case No.1 of 2022 on 17/01/2022 complaining about disobedience of the said Tribunal’s Order, thence seeking damages therefrom. Based on the life span of the tribunal’s order which is six months as per Order XXXVII Rule 3 of the CPC, the Tribunal’s Order ceased to have legal effect on 28/02/2020. The said provision is couched in mandatory forms by the use of the word

“Shall” to provide the time limit meaning that such time must be observed. Moreover, the plaintiff/appellant had never applied for extension of time upon tribunal’s order coming to an end as he was obliged under Proviso of Order XXXVII Rule 3 of the CPC. The Proviso reads that; “………. Provided that, the court granting the injunction may, from time to time extend such period for a further period which in the aggregate shall not exceed one year, upon being satisfied, on the application of the holder of such court injunction that the applicant has diligently been taking steps to settle the matter complained of and such extension sought is in the interest of justice, necessary or desirable”. Page 10 of 18 The plaintiff/ appellant did not apply for extension of injunctive order by the DLHT as required by Order XXXVII Rule 3 of the CPC. In the case of John Joseph Magazeti and 3 others vs Gabrieli Mushi @Gabriel Stephen Masha, Misc Civil Application no 43 of 2019, this court insisted on the need to apply for extension of time. The appellant stated that, the tribunal’s order issued on 28/08/2019 is still valid to date as there was no time limit as it was issued under Rule 22 (d) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, 2003 and not Order XXXVII, thus time limit is not applicable. The above position of having time limit is echoed by the case of

African Trophy Hunting Ltd Vs the Hon Attorney General and Others, Civil Appeal No 25 of 1997(CAT), The appellant who is also a lawyer as well as an advocate is very much aware that, the Law of Limitation Act, Cap.89 R.E.2019 as an example provides for time limit within which one has to prefer an action in the court of law/tribunal. However, it is not a substantive law providing for people’s rights. Cause of actions accrue from other laws but when it comes to filing of case, litigants and court must observe time limit within which such suit ought to be filed. One cannot argue that, the Law of Limitations Act is not applicable. This is a cross-cutting law on time limit. The CPC do not provide for most of the time limit within which to prefer an action in Page 11 of 18 court of law/tribunal. As the CPC is not exhaustive courts and litigants have to apply the Law of Limitation Act, herein referred as general law on limitations of actions whereas CPC is general law to all procedural matters which fills procedural gaps left by specific law. The LDCA and the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, 2003 are not exhaustive, thence application of CPC as per section 51 (2) of the LCDA Cap. 216 R.E 2019. Neither courts nor tribunals are allowed to issue temporary orders in contravention of time limit granted by Order XXXVII Rule 3 of the CPC. Moreover,

there is no proof as to when the disobedience of the tribunal’s order by the respondents occurred. What is on record is that, the appellant was throughout calling for investigation to establish if there was violation or disobedience of lawful order by the tribunal. However, to date there is no answer on the same. As per clause 8 of the plaint, the plaintiff is complaining that, the respondents entered the land in dispute and built house, constructed road and performed various activities but no proof of the same by tendering picture or photos of the constructed building or roads. Such facts could have established as to when the respondents disobeyed the lawful order of the tribunal. It is not clear, if it was during the validity or outside the life span of the order, the six months period. Page 12 of 18 Indeed, the appellant’s complaints falls outside the life span of the tribunal order thus lacked cause of action against the respondents based on the fact that, the plaintiff/ Appellant believes that the order is no time limit. In other words, it is unlimited life time order. The second point is on which adjudication authority had jurisdiction to deal with disobedience allegations of the tribunal's order. The appellant stated that, the evidence on record shows that, the case disclosed element of criminalities as such, the appellant has to go to police and thereafter to normal

court vested with mandates to deal with matters of criminal elements. The District Land and Housing Tribunal had no jurisdiction. On the other hand, the appellant submitted that, the trial court erred in law in ruling that it had no jurisdiction as the matter had criminal and land elements. He submitted that, the court ruled on the same without affording him to be heard. In reply Mr. Alli Chamani learned counsel for the respondents argued that, the court did not raise a preliminary objection but it gathered the point based on the evidence adduced by the appellant. To start with, first, the question on whether the court has jurisdiction or not is reflected in paragraph 18 of the plaint in which the appellant stated that, the tribunal has jurisdiction to deal with the matter. Indeed, it was the appellant’s Page 13 of 18 confirmation that, the court had jurisdiction. It is evident therefore that, the appellant adduced evidence leading to prove among others that, this court has jurisdiction. That was a kind of issue generated from the evidence by the appellant in response to paragraph 18 of the plaint, thus not a new issue. Second, the suit in respect of disobedience of lawful order by the tribunal dated 28/08/2019. The question is whether the trial court had jurisdiction to entertain matters of disobedience of tribunal’s order. In fact, the trial court put it correctly that, the

court/tribunal cannot have mandate to issue certain order on one hand and have no jurisdiction to enforce it in case of disobedience. In other words, the trial court stated that, the tribunal had mandate to enforce its own order in anyway. Third, the tribunal stated in its ruling dated 07/01/2020 that; “Failure of that will amount into contempt to court and any person may be held criminally liable. Whoever feels that the order has aggrieved him he is not precluded from bringing any action to this tribunal or any court of competent jurisdiction”. The above position means that, the tribunal was aware that, it has jurisdiction to enforce its order. Page 14 of 18 Fourth, the complaint by the appellant was on disobedience of the tribunal’s order dated 28/08/2019. The question is whether the order was enforceable by the issuing tribunal. The answer to above question is gathered from Order XXXVII Rule 2(2) of the CPC which states, inter alia that, in case of disobedience or breach of any of such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached and may also order such person to be detained as a civil prisoner for a term not exceeding six months, unless in the meantime the court directs his release. Further, section 68 (c) of the Civil Procedure Code, Cap.33 R.E.2019 subscribes to what is stated under Order

XXXVII Rule 2(2) of the CPC. It states that; In order to prevent the ends of justice from being defeated the court may, subject to any rules in that behalf; (a) and (b) not applicable. (c) grant a temporary injunction and in case of disobedience commit the person guilty thereof as a civil prisoner and order that his property be attached and sold; This court in decision of the case TBL Vs Edson Dhobe, Miscellaneous Civil Application No.96 of 2006 which was approved by the court of appeal in case of Karori Chogoro Vs Waitihache Merengo Civil Appeal No.164 of 2018, the court of appeal stated that; Page 15 of 18 “Courts orders should be respected and complied with. Courts should not condone such failures. To do so is to set bad precedent and invite chaos. This should not be allowed to occur….” “Like any lawful court order, including Tribunal are equally to be complied with.” It is therefore undisputed that, courts/tribunals have jurisdiction to enforce its orders unless expressly excluded by law. In event, the tribunal’ s order dated 28/08/2019 was enforceable by the tribunal in all ways including the alleged disobediences. Any alleged disobedience of the courts’/tribunals’ orders have to be referred to the issuing court/tribunal as it stands to a better position to interpret and understand the does and don’ts in its order. Sixth, the appellant’s allegations of disobedience of

lawful order by the tribunal was only amenable by the issuing tribunal which could have confirmed, if its order was violated or not. A litigant cannot secure an order in one tribunal/court and in case of disobedience complain to a different forum of adjudication such as tribunal or court and vice versa. Seventh, if the appellant’s concern was on damages, then the same is amenable by the granting court/tribunal under Order XXXVII Rule 2(2) of the CPC. Further, Page 16 of 18 if the appellant wanted to claim for damages in the way he did, he could have first secured the ruling from the issuing tribunal that, the respondents were really in disobedience of the tribunal’s order, then pursue for damages based on the confirmation of disobedience by the issuing tribunal. That was not done. What if the issuing tribunal finds that, it was not while the stranger (tribunal/court) to the order finds in affirmative. It will lead to creating conflict, amongst, the adjudication authorities for no plausible reasons by one authority usurping one’s mandate to adjudicate a matter which in law was enforceable by another tribunal/court. Additionally, it will as well lead to multiplicity of unnecessarily claims. The appellant did not give tangible reasons as to why the appellant run away from dealing with the matter through the issuing tribunal knowingly that, it was the proper forum as per Order

XXXVII Rules 2 and 3 of the CPC and the tribunal’s order dated 07/01/2020. Therefore, the appellant acted in contravention of the above principles of law. All said and done, this court finds no need to deal with other grounds as the two points suffice to settle the appeal before me. Indeed, the matter was misplaced before the trial court. The proper recourse was to let the matter be dealt by the tribunal itself which issued the temporary injunctive order. Page 17 of 18 That being the case, the appeal before me lacks validity based on the afore stated reasons. Consequently, CIVIL APPEAL NO.1529 OF 2024 is without merits, thus stand dismissed with costs.

IT IS SO ORDERED DATED at BUKOBA this 27rd December, 2024. G.P. MALATA

JUDGE 27/12/2024 JUDGEMENT delivered at BUKOBA this 27rd December, 2024. G.P. MALATA

JUDGE 27/12/2024 Page 18 of 18