Mohamed Hassan appeal Ruling

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA LAND APPEAL NO. 202407241000017859 (Arising from the Eviction Order in Misc. Land Application No. 52 of 2024 of Maswa District Land and Housing Tribunal dated the 1st " July 2024 which emanated from the ruling of Misc. Land Application No. 52 of 2024 of Maswa District Land and Housing Tribunal dated the 5th July 2024) MOHAMED HASSAN@ MOHAMED HUSSEIN ………………..…..…. APPELLANT VERSUS WALJI HASSANALI (NEXT FRIEND OF ZIDANI HASSANALI) …....………..……………….…. RESPONDENT RULING Date of Last Order: 25/09/2024 Date of Ruling: 04/10/2024 MWAKAHESYA, J.: This is a ruling in respect of a point of law raised by the court in the course of determining this appeal against the decision of the Maswa District Land and Housing Tribunal (the DLHT) in Misc. Land Application No. 52 of 2024 (the impugned application). The brief background to the present appeal is that, the respondent alleges to be the lawful owner of a certain house (suit premises) since the year 2004 after purchasing the same. He then left the appellant within the premises for its safekeeping and collection of rent from 1 tenants dwelling within it. It was also alleged that sometimes later the appellant started misbehaving towards the tenants and even threatened to evict some of them, that is those who do not comply with his demands, especially acknowledging him as the owner of the house. It was further alleged that the appellant and his agents had even started to demolish the suit premises with the intention of erecting a garage. This prompted the respondent to file Land Application No. 52 of 2024 (the main suit) and Misc. Land Application No. 52 of 2024 at the DLHT. In the impugned application the respondent sought, as a temporary measure, eviction of the appellant from the suit premises. The DLHT granted the said interim orders ex parte on 05.07.2024, removing (albeit temporarily) the appellant from the suit premises; restraining him and his agents from evicting the tenants at the suit premises; and making physical alterations to the suit premises, pending the hearing and determination of Misc. Land Application No. 52 of 2024 inter-partes. This is what has prompted the present appeal which is couched on four grounds of appeal, which for obvious reasons, I will not reproduce. When the appeal came for hearing, the appellant was represented by Mr. Frank Samwel, learned advocate, while the respondent was 2 represented by Mr. Steven Mhoja, learned advocate. I then invited the parties to address the court on whether the appeal was competent, having emanated from an interlocutory order. Mr. Frank Samwel was of the view that, the appeal was properly before the court since it was brought under section 41 of the Land Disputes Court’s Act (the LDCA) read together with section 74(2) of the Civil Procedure Code (the CPC). He was adamant that, the order appealed against has the effect of finally determining the suit, because in the suit before the DLHT the respondent was praying for: 1. To be declared the lawful owner of the suit land on behalf of the legal next friend; 2. The applicant be ordered to vacate the suit land, payment of rent in arrears amounting to TZS 70,000,000/=, rents which the applicant had collected from the tenants and the status quo be maintained. The learned advocate went on to submit that, the issue of eviction was supposed to be determined upon hearing of the main suit but was instead granted before the land case was determined. Mr. Mhoja, counsel for the respondent, was of the opposite view. He submitted that, the appeal was improper before the court, because it 3 came from an interlocutory order which is not appealable. The learned counsel cited the Court of Appeal decision of Murtazar Ali Mangungu v. The Returning Officer for Kilwa North Constituency and 2 Ors, Civil Application No. 80 of 2016 (unreported), where the Court when quoting the case of Bazson v. Attrinchan Urban District Council (1903, 1 KB 984) held that a matter which is appealable is that which finally disposes off the suit. He rounded off his submission by submitting that, the decision of the DLHT was interlocutory and was ex parte which meant that the appellant could challenge the same inter-partes. It was the learned counsel’s view that this appeal was an abuse of the court process. In rejoinder Mr. Frank Samwel reiterated that, the order of the DLHT was appealable. Having entertained the rival submissions for and against the question of law raised by the court, it is now my role to decide on the same. Section 41(1) of the LDCA provides that: “41(1) Subject to the provisions of any law for the time being in force, all appeals, revisions and similar proceedings from or in respect of any proceeding in a 4 District Land and Housing Tribunal in the exercise of its original jurisdiction shall be heard by the High Court.” [Emphasis added]. Likewise, section 51(1) of the Land Disputes Courts Act provides: “51(1) In the exercise of its jurisdiction, the High Court shall apply the Civil Procedure Code and the Evidence Act and may, regardless of any other laws governing production and admissibility of evidence, accept such evidence as proof which appears to be worthy of belief.” [Emphasis added]. This takes us to section 74 of the CPC, it provides: “74. -(1) An appeal shall lie to the High Court from the following orders of the District Courts, Resident Magistrate’s Courts and any other tribunal, the decisions of which are appealable to the High Court, and save as otherwise expressly provided in this code or by any law for the time being in force from no other order- (a) an order superseding an arbitration where the award has not been completed within the period allowed by the court; (b) an order on an award stated in the form of a special case; (c) an order modifying or correcting an award; (d) an order filing or refusing to file an agreement to refer to arbitration; 5 (e) an order staying or refusing to stay a suit where there is an agreement to refer to arbitration; (f) an order filing or refusing to file an award in an arbitration without the intervention of the court; (g) an order under section 69; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention as a civil prisoner of any person except where such arrest or detention is in execution of a decree; or (i) any order made under rules from which an appeal is expressly allowed by rules. (2) Notwithstanding the provisions of subsection (1) and subject to subsection (3), no appeal shall lie against or be made in respect of any preliminary or interlocutory decision or order of the District Court, Resident Magistrate’s Court or any other tribunal, unless such decision or order has effect of finally determining the suit. (3) Subsection (2) shall not apply in relation to a decision or order given in relation to the exercise by the mortgagee of the powers to see or enter in possession of the mortgaged land or in an action brought by a mortgagor to suspend or stop sale of a mortgaged property. [Emphasis supplied]. Considering that the order appealed against was given during the pendency of Misc. Land Application No. 52 of 2024 it does not conclusively determine the main suit nor the rights of the parties. I say so because the learned counsel for the appellant is on record having 6 listed prayers that are yet to be determined in the main suit. The same include other items apart from the order for eviction. These are: One, a declaration that the respondent is the lawful owner of the suit premises; Two, outstanding rent to the tune of TZS 70,000,000/= and Three, rent that the appellant has collected from the tenants in the suit premises. Therefore, the nature of the order made by the DLHT fails the “nature of the order test” as was elaborated in the case of Murtaza Ally Mangungu (supra) cited by the learned counsel for the respondent. It does not finally dispose the rights of the parties, regardless of how queer the order seems. In the upshot, I find this appeal incompetent and accordingly strike it out. Since the point of law was raised by the court, each party is to bear their own costs. It is so ordered. N.L. MWAKAHESYA JUDGE 04/10/2024 7