mariam kihiyo another vs kombo kisario gumbo 2022 tzhclandd 579 30 june 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPEAL N0.127 OF 2021 (From AppeaUudgment ofDistrict Land and Housing Tribunaifor liaia, in Land Case Appeai No.11 of2021, originating from the Ward Tribunai ofKiburugwa Ward, in Application No.24 of2020) MIRIAM KIHIYO APPELLANT MOSES TOMU Z"*"" APPEALLANT VERSUS KOMBO KISARIO GUMBO RESPONDENT JUDGMENT Date ofLast Order: 22.06.2022 Date ofJudgment: 30.06.2022 T. N. MWENEGOHA,J. In 1990, Mr. Kombo Kisario Gumbo,the respondent here in above bought a plot at Mbagaia Kiburugwa area in Dar Es Salaam Region. He developed the same by constructing a four rooms unfinished building therein. He also purchased another plot to extend his iand at the same area. In 1992, he left for further studies and was later transferred to work in Singida Region. He came back in 2003 and found the appeilants residing in his land. The structures he left standing at his land have all been finished by the appellants. He reported the matter at Kilwa Road Police Station over the trespass done by the appeliants into his land. He was advised to take the matter to Court as the same was a land matter, falling outside the poiice force 1 jurisdiction. The appellants were not ready to contest the matter in Court, hence a settlement was reached on 26"^ March 2008. It was agreed by the parties that, the appellants will give the respondent a plot at Mbagala Kuu and build the same for him. In return, the respondent will surrender the land in dispute to the appellants. Further the appellants will also give another plot to the respondent to extend the area at Mbagala Kuu. The agreement was partially fulfilled by the appellants, where a land with two rooms building at Mbagaia Kuu was given to the respondent. Later, other rooms were added to the building, and in 2016 the respondent started to live there. However, the additional plot as an extension of his land was not given to him as per their 2008 agreement. Hence the respondent approached the Ward Tribunal for Kiburugwa, herein after called the Trial Tribunal, in a bid to enforce the terms of the 2008 Agreement, vide Application No.24 of 2020. The Trial Tribunal decided to restore the parties to their original position as it was before the 2008 Agreement. That is to say, the respondent was ordered to return to Mbagala Kiburugwa and reside in his land which was at that material time under the ownership of the appellant. On the other hand, the appellants were ordered to retake the land at Mbagala Kuu, which they surrendered to the respondent in performance of the 2008 Agreement. Dissatisfied with the decision of the Trial Tribunal, the respondent successfully appealed before Temeke District Land and Housing Tribunal, herein after referred as the 1^ Appellate tribunal, vide Land Appeal No. 11 of 2021. The 1®' Appellate Tribunal found the decision of the Trial Tribunal to be against the agreement entered by parties on the 26"' March 2008, hence the same was declared to be illegal. It Is against this background; the appellants filed the instant appeal based on the following grounds: - 1. That, the 1®*= appellate tribunal erred in law and facts to issue the decision in favour of the respondent without a proper evaluation of evidence given by parties at the trial tribunal. 2. That, the I®' appellate tribunal misdirected itself to bless the respondent claims against the appellants which were brought to the trial tribunal after expiration of time and without leave of the court. 3. That, the 1®^ appellate tribunal erred in law and in facts to declare that the respondent is entitled to costs for construction, properly make analysis as to the law. 4.That, the I®' appellate tribunal erred in law and facts to reverse the findings of the trial tribunal without looking on the issue of jurisdiction on part of the trial tribunal. The appeal was heard by way of written submissions.The appellants were represented by Advocate Jamali, while the respondent appeared In person. However, upon perusal of the records, especially of the Trial Tribunal, I came across an issue which goes to touch the jurisdiction of both iower tribunals to entertain the dispute in question. The parties were caiied to address the Court on the iiiegality so noted and both of them complied to the order. Given to the course I have decide to take in determining this appeal,I see no reason to recite the grounds of appeai aiong with the submissions thereof. Instead, I shall revert and refer to them whenever I find it necessary and relevant. After reading the records of the Trial Tribunal, it came to my understanding that the root of this dispute is the partial performance of the agreement reached by the aforenamed parties on 26'^ March 2008. The appellants have yet to give the respondent the additional plot apart from the plot which built a house for him at Mbagala Kuu. This is what is remained unfulfilled in the Agreement entered in 2008. It is my view that, there is no dispute involving any land between the parties, rather a breach of contract of which the two lower Tribunals have no jurisdiction to entertain. The 1=^ Appellate Tribunal did it's best to keep the parties to the right track by overturning the decision of the Trial Tribunal, but in the end, failed to decide on proper remedy as far as the claim by the respondent in respect of the additional plot from the appellants is concerned. That means, it just restored the parties to their original position as it was before the orders of the Trial Tribunal were issued. The grievances of the respondent remained unresolved. The obvious reason is that, the Appellate Tribunal lacks the requisite powers to make any declaration concerning the said claim by the respondent as against the applicant with regard to the full performance of the 2008 agreement. These being my findings, I agree with what the V" Appellate Tribunal did when it quashed the decision and orders of the Trial Tribunal, but only for the reasons I have proceeded to give herein above. I further advice the parties, a respondent in particular, to seek proper remedies before a proper court competent to entertain a case based on the nature of his claim if he stiil wishes to do so. As I have said herein earlier, a land court cannot give him what he wants. In the end, the appeal is dismissed. No order as to costs. Right of appeal explained. o 2^^ G T. N^^MWENtGOHA o JUDGE S 'Mk 30/06/2022 * O