PC CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA PC CIVIL APPEAL NO. 63 OF 2022 (CF Civil Appeal No. 38 of 2019 at the District Court ofArusha at Arusha, Emanated from Civil Case No. 169 of1997of Arusha Urban Primary Court) MELEMBUKI KITESHO APPELLANT VERSUS ZAINABU MUSSA MBAGA (As Administratrix of the Estate Of EDHENA HASSAN MSUYA)RESPONDENT JUDGMENT 04/06/2024 & 19/07/2024 BADE, J. This is a second Appeal. It arises from the judgment that was delivered on 12/08/2022 by Hon. B. I. Mwakisu, RM, vide Civil Appeal No. 38 of 2019, which also arises from Arusha Urban Primary Court. The brief back ground leading to this appeal from the record of this file is that in 1997 Ibrahim Ramadhani who is not a party to this Appeal unsuccessfully sued the Appellant before Arusha Urban Primary Court 1 of 12 through Civil Case No. 169 of 1997 claiming that the Apellant invaded his land measuring 2 acres located at Sombetini area. He claims that the said particular land was compensated to him by the Government after his previous house that was located at Ngarenaro was demolished in 1976. On the other hand, the Appellant who was the Respondent before the trial court claimed that he was given the disputed land by his father way back in 1954. After a full hearing the trial court dismissed the suit on the ground that Ibrahim Ramadhani failed to prove his claim that the suit land belongs to him. Being aggrieved by the said decision, he appealed to the District Court in Civil Appeal No. 73 of 1998, the same was once again dismissed. Unfettered, he appealed before this Court, Hon. Msoffe, J. (as he then was). Still, his appeal did not sail through. After the said appeal was dismissed, the Appellant went back to the trial court and applied for an execution order. Unfortunately, Ibrahim Ramadhan passed away and an administrator of his estate one Said Ibrahim stood in his position. As it happened, before the Application for Execution could be heard, one Edhena Hassan Msuya, a widow of Ibrahim Ramadhan objected to the execution on the reason that the suit A Page 2 of 12 land should not be handed to the Appellant. Her objection was overruled. Unfortunately, after her objection was overruled, she too passed away. Her legal representative who is now the Respondent appealed to the District Court in Civil Appeal No. 38 of 2019. After a full hearing, the appeal was allowed with costs. The Appellant who was the first Respondent in the said appeal was aggrieved preferring the instant Appeal fronting three grounds of appeal in his Petition of Appeal: i. That having found objection proceedings are not subject to appeal, the District Court erred in law and in fact when it proceeded to entertain the appeal emanated from objection proceedings by indirectly allowing the appeal with costs, something which disturbed the non-appealable decisions. ii. That the District Court erred in law and fact when it allowed the appeal brought by a party who is not anyhow mandated to attack the decision of Arusha Urban Primary Court in its decision dated 02/10/1998 or that of Hon. S.E Joseph, RM in Execution Proceedings since the Respondent had no locus standi to appeal. iii. That the District Court erred in law and fact when it ignored his submission and proceeded to allow the appeal without any reasonable ground in law or fact for it to do so. / Page 3 of 12 This appeal was disposed of by way of written submission. The Appellant was represented Mr. Lengai Nelson Merinyo, while the Respondent was represented by Mr. Mnyiwala Mapembe. Arguing the 1st and 2nd grounds of appeal, Mr. Merinyo submitted that the issue that the decision emanating from the Objection Proceedings is not appealable was raised at the earliest possible opportunity during the hearing of Civil Appeal No. 38 of 2019. This is the moment that the trial court dismissed the Objection Proceedings as was done by Hon. Sedoyeka RM. The Objector, who is the Respondent herein, had no mandate to appeal. To support his position, he cited the case of Cleophace Anatory vs Paul Edward, [1968] HCD 137 as well as the case of World Oil (Tanzania) Ltd vs Mrs. Zubeda Ahmed Lukha and 6 Others, Civil Application No. 110/11 of 2023 (unreported). Mr. Merinyo also found persuasion in the decision of Sembuli s/o Alli Ndagiwe vs Mwezi s/o Ramadhani, Land Revision No. 01 of 2021. On the 3rd ground of appeal, Mr. Merinyo contends the Respondent that had no locus standi to complain through an appeal avenue on grievances arising out of a decision in Civil Case No. 169 of 1997 as she was not a party thereto, arguing that the issue of locus/standi Page 4 of 12 was raised as an objection at the District Court but unfortunately the trial magistrate did not determine it when hearing the appeal, a practice he shunned as being contrary to the law. To cement his position, he cited the case of Deonesia Onesmo Muyoga and 4 Others vs Emmanuel Jumanne Luhahula, Civil Appeal No. 219 of 2020 (unreported). He discerns that the Respondent's legal status in terms of her locus standi to appeal was a point required to be determined at the very beginning because it could have disposed of the appeal. He insisted that the Respondent was not a party to Civil Case No. 169 of 1997; therefore, she should not have been heard complaining of any shortcomings arising out of the decision by the trial court. To buttress his position, he cited the case of CRDB BANK PLC (Formerly CRDB (1996) Ltd) vs George Mathew Kilindu, Civil Appeal No. 110 of 2017 (unreported). Mr. Merinyo concludes his arguments in that not all of the above- mentioned mischiefs were considered at trial and the trial Magistrate turned a blind eye to his submission which pointed to these issues. Opposing the Appeal and responding regarding the 1st and 2nd ground of appeal, Mr. Mapembe submitted that counsel for the Appellant has misdirected himself in blaming the District Court for an alleged ^rror of 12 that it did not commit. That, the District Court concurred with Counsel Mr. Lengai's argument that Objection Proceedings are not subject to appeal. He added that nowhere in the impugned judgment had the District Court found that Objection Proceedings can be appealed in the higher courts in the judicial hierarchy. In his view, having found that Objection Proceedings are not subject to appeal, the issue is whether the District Court had jurisdiction to indirectly proceed with the matter before it and nullify the decision of Hon. S. E. Joseph, RM dated 08/06/2016 that had allowed execution. Mr. Mapembe further argues that even after the District Court had ruled that proceedings emanated from Objection Proceedings were not appealable, it had jurisdiction and rightly so, proceeded to entertain the matter under section 22 (1) and (2) of the Magistrates' Courts Act, Cap 11 R.E 2019. He added that the proceedings before the Primary Court, especially the decision of Hon. S.E Joseph dated 08/06/2016 that allowed the execution to proceed against a judgment in Civil Case No. 169 of 1997 warranted interference by the District Court to examine and satisfy itself as to its correctness, legality or propriety. He insisted that the District Court did not do something new or unprocedural when it interfered with the decision, Page 6 of 12 which dismissed the said suit that did not declare the Appellant as the lawful owner of the suit land. To support his position, he cited the case of Dr. Melkizedecki Stephen Kimaro vs Tanzania Jordanian General Trading Company Ltd and Another, Land Appeal No. 06 of 2020 (unreported). In further contention, Mr. Mapembe maintained that the District Court was within its revisional powers similar to those exercised as an appellate court when it proceeded to examine the judgment in Civil Case No. 169 of 1997; and satisfy itself as to whether the said judgment awarded the Appellant ownership of the suit land. He added that the District Court Magistrate was well within his jurisdictional mandate to inspect the execution proceedings to satisfy himself as to the correctness, legality or propriety of execution orders made by Hon. Joseph in Civil case no. 169 of 1997. He cited section 30 (2) (b) of the Magistrates Court's Act to support his position. On the last ground of appeal, Mr. Mapembe submitted that, it is trite law that courts are not bound to consider parties' submission because they are not evidence. To cement his position, he cited the case of Jongo Mwikola vs Geita Gold Mining Limited, Civil Appeal No. 344 of 2020 (unreported). He insisted that District Court had no legal ige 7 of 12 duty to consider the Appellant's counsel submission because submission is not evidence, but rather a mere analysis of evidence providing a party's position upon consideration of ail facts of the case. In conclusion, Mr. Mapembe prayed this Court to inspect and examine the judgment in Civil Case 169 of 1997 for the purposes of satisfying itself as to whether that decision can be subject to execution since the said judgment did not declare the Appellant the lawful owner of the suit land. It is his contention that the trial court only dismissed the then Plaintiff's case for being time-barred. In his opinion, execution proceedings can only be preferred if there is a court order granting a certain right to a party. Having carefully considered the rival arguments advanced by the counsel for the parties and examined the record of appeal, the task before me is to determine whether this appeal is meritorious. In this regard, I will address each ground as raised by the Appellant. However, before embarking on such proposition, I first need to clarify a point hitherto. At the beginning of his reply submission, it seems to me the Counsel for the Respondent was intent on arguing on the preliminary objection which had already been previously dismissed with cost for want of prosecution on 07/03/2024. By all intent and purposes, Mr. Mapembe is trying to use a backdoor through the Reply Submission to argue the preliminary objection that he had raised and abandoned. It is the resolve of this court to not entertain such. On another note, it seems to me Mr. Mapembe has raised a new complaint in his submission challenging a decision of the trial court while replying to the submission of his opponent. I am referring to page 8 -11 of the Reply Submission. Basically, he fronts an argument based on legality of execution of judgment in Civil Case No. 169 of 1997; praying that this Court call upon records of the proceedings before the Primary Court to inspect and examine the Judgment in Civil Case No. 169 of 1997. I must point out that before the present Appeal was set for hearing, there had not been on record any ground of appeal by way of a cross Appeal by the Respondent. Suffices to say that it is trite law that parties are bound by their pleadings, and they cannot argue outside of their pleadings. Even at the risk of being found pedantic, the order to argue the appeal by way of written submissions related only to the grounds of appeal that were on record as at the date of the order. In a nutshell, 'age 9 of 12 written submissions can neither be used as an opportunity nor a forum for raising new complaints. See the case of Hadija Ally vs George Masunga Msingi, Civil Appeal No. 384 of 2019. Having straightened up the record, Its back with the first ground of Appeal. Counsel for the Appellant argues that the trial magistrate was wrong to continue to entertain the appeal after finding that Objection Proceedings are not subject to an appeal. It is undisputed fact that Objection Proceedings are not appealable, and the order made in Objection Proceedings is conclusive. This means that there is no room for either appeal or revision against such order. In essence, the aggrieved party is forthwith supposed to institute a suit to establish the right which he/she claims to the property in dispute. The Case of World Oil (Tanzania) Limited (supra) cited with approval the holding in the case of National Housing Corporation vs Peter Kassidi and 4 Others, Civil Application No.294/16 of 2017 (unreported), stating that: "Where an objection is preferred and an order determine that objection is subsequently made, in terms of Rule 62 of the same Order, the only remedy available to the party against whom that order is made is to institute a regular suit Page 10 of 12 to prove his claim. Put in other words, after the decision on an objection proceeding has been made by a competent Court, there is no remedy for appeal or revision." [Emphasis added] It is clear from the above analysis that the trial magistrate misdirected himself by proceeding to determine the appeal after he had found that Objection Proceedings are not subject to appeal. The argument by Mr. Mapembe that the trial magistrate has a power to continue to disposed of the appeal under section 22 (1) (2) and 30 (2) (b) of the Magistrates' Courts Act is misconceived. It is obvious that the cited provisions are all about normal proceedings, certainly not Objection Proceedings. Since this ground disposed of the Appeal without any reservations, I find no urge in discussing the remaining grounds. I thus allow this Appeal. The Judgment and Decree from the District Court are hereby quashed and set aside. Considering the circumstances which gave rise to this Appeal, I make no order as to costs. It is so ordered. DATED at ARUSHA this 19th day of July 2024 Page 11 of 12 A. Z. Bade Judge 19/07/2024 Judgment is delivered in the presence of the Appellant and the Respondent / their Representative in chambers on the 19th day of July 2024. A. Z. BADE JUDGE 19/07/2024 Page 12 of 12