mtoro jumanne kisina administrator of the estate of the late jalala jumanne kisina vs lila borrit and others 2021 tzhclandd 803 17 november 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO. 326 OF 2021 (Arising from Land Case No. 107 of2013) MTORO JUMANNE KISINA (Administrator of the Estates of the Late JALALA JUMANNE KISINA)......................... APPLICANT VERSUS LILA JAFFER BORRIT....................................... 1st RESPONDENT RAMLA FATMA LILA ....................... ............... 2nd RESPONDENT MWANTUM DJUNAID KONZANGA................... 3rd RESPONDENT BIBIE LILLA.................................................... 4th RESPONDENT NAINABY LILLA............................................... 5th RESPONDENT SADIKI MAINE................................................ 6th RESPONDENT PETER PETER JUNIOR.................................... 7th RESPONDENT ABDALLAH MAKATTA t/a SENSITIVE AUCTION MART AND COURT BROKERS........... 8th RESPONDENT RULING Date of last order: 11.11.2021 Date of Ruling: 17.11.2021 A.Z. MGEYEKWA The application before this court is regarding objection proceedings by the applicant intended to object the Execution in respect to Land Case No. 107 of 2013 whereby the 1st to the 3rd respondents being Decree Holders i are intending to evict, the 6th and 7th respondents from the suit property registered as Plots numbers 26, 27, 28, 29,30,31,32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 and 44 Block 'B' Sanzale Bagamoyo. The Decree which is executed originated from Land Case No. 107 of 2013 between the 1st respondent and the 6th and 7th Respondents, whereby in the said Land Case the 6th and 7th Defendants and their assignee, agents and allocates were evicted from Plots Numbers 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 and 44 Block 'B' Sanzale Bagamoyo and strained from trespassing and developing the said properties. The applicant in the instant application has filed an objection proceedings under Order 21 Rule 57 (1), Rule 98 (1) and (2) and 99 and section 95 of the Civil Procedure Code Cap.33 [R.E 2019]. The applicant is praying for this court to investigate the claimant's claims against the Decree issued to the 1st to the 8th respondents which has in effect of dispossessing the applicant who lawfully acquired the parcel of land situated at Magomeni B Bagamoyo. The application has been viciously fought by the respondents, through counter-affidavit sworn by Lila Jaffer Borrit, the 1st respondent, Ramila Fatma Lila, the 2nd respondent, Mwantum Djunaid Konzanga, the 3rd 2 respondent, Bibie J. Lila, the 4th respondent and Mr. Abdallah Makatta, the 8th respondent. A brief background relevant to this application goes as follows:-Decree of this court in Civil Case No. 107 of 2021 ordering attachment and eviction and demolition of Plots No. 26, 27, 28, 29, 20, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, and 44 Block 'B' Sanzale in Bagamoyo District pending the hearing of this application. The application is supported by an affidavit deponed by Mtoro Jummanne Kisina (Administrator of the Estates of the Late JALALA JUMANNE KISINA), the applicant. The application has encountered formidable opposition from the 1st, 2nd, 3rd, 4th, and 8th respondents and the 1st 2nd 3rd, and 4th respondents. The 8th respondent opposed the application by filing a counter-affidavit deponed Abdallah Makatta, the 8th respondent. The applicant is enjoying the legal service of Mr. Mapembe, learned counsel whereas the 1st, 2nd 3rd, and 4th respondents are enjoying the legal service of Mr. Charles Shipande and the 8th respondent is enjoying the legal service of Mr. Nyamuko Makatta, learned counsel. Mtoro Jumanne Kisina, the applicant on his side defended his case and called two witnesses; Shaban Rajabu (PW2) and Kassim Salum Abdallah 3 (PW3). Mtoro Jumanne Kisina in his testimony testified to the effect that the he is the administrator of estate of the late Jalala who was his father and he left behind a plot lactated at Magomeni B Nyachema Ward. In his testimony he tendered a warrant of eviction. A copy of Land Case No. 107 of 2013. In his testimony, the applicant insisted that his Plot was not included in the dispute, however, he is astonished to see that the same is attached and he is required to vacate the suit landed property. PW2 and PW3 testified to the effect that the applicant is the lawful owner of a Plot located at Magomeni Bagamoyo. In their testimonies, they were certain that there is a river bordering Sanzale and Magomeni area. They said Magomeni is a street and Sanzale is located at Magomeni Ward and that Magomeni Bare is different from Sanzale. When they were cross- examined they insisted that Magomeni B and Sanzale are different streets and different Wards. PW3 testified that the applicant's father was buried in Magomeni B. boundaries. The respondents in their testimonies testified to the effect that they are the lawful owners of the Plots No. 26, 27, 28, 29, 20, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, and 44 Block B Sanzale in Bagamoyo District. To substantiate their testimonies they tendered the original Certificate of 4 Occupancy in relation to the Plots No. 26, 27, 28, 29, 20, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, and 44 Block B Sanzale in Bagamoyo District. Having gone through the pleadings, facts, and evidence on record, I am in a position to determine the central issue for discussion is whether the application for objection proceeding is meritorious. I want to make it clear from the beginning that I did not visit locus in quo as requested by Mr. Mapembe because of the circumstance of the application. The chamber summons, affidavit, counter-affidavit, and the evidence on record will lead this court to determine the instant application and reach a fair decision. Glancing through the applicant's application for lifting of the attachment, the proceedings that bred in the instant application were preferred under two provisions; Order XXI Rules 57 (1) and 58 of the Civil Procedure Code, Cap. 33 [R.E. 2019]. These are the provisions that call on the courts to investigate the objector's claim of interest in the property that has been lined up for attachment in the execution of a decree. In the process of doing so, the objector is called upon to adduce evidence that proves that, at the time of the intended execution, the 5 objector was possessed of the property subjected to the opposed attachment. Order XXI Rule 57 of the CPC provide in verbatim as fol lows:- "(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to investigate the claim or objection with the /ike power as regards the examination of the claimant or objector and in all other respects, as if he was a party to the suit: Provided that no such investigation shall be made where the court considers that the claim or 4 objection was designedly or unnecessarily delayed." In the instant application, the applicant in his chamber summons urged this court to investigate the claimant's claims against the decree issued to the 1st to the 8th respondents which have an effect of dispossessing the applicant who lawfully acquired the parcel of land situated at Magomeni 'B' Bagamoyo. In his testimony, Mr. Mtoro Jumanne Kisina testified to the effect that he is an administrator of the estate of the late Jalala Jumanne Kisina, and the deceased left behind a house located at Bagamoyo Magomeni 'B' at Nyanchema Ward. The applicant testified that he lodged this case because he was informed by one Sadiki 6 Maine that there are people who want to execute the court order in relation to his plot. He tendered a warrant of eviction whereas the same is in regard to Plots No. 26, 27, 28, 29, 20, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, and 44 Block 'B' Sanzale in Bagamoyo, District. While the applicant claims interest of ownership in the house located at Bagamoyo Magomeni 'B' at Nyanchema Ward. The applicant's witnesses testified to the effect that the property in Bagamoyo Magomeni 'B' and the one located at Sanzale Bagamoyo, District are two different Plots. The respondents on their sides were able to prove their ownership, they tendered their original certificate of occupancy to prove that they are the lawful owners of the said plots. While, the applicant did not tender any proof of ownership of the Plot located at Magomeni 'B' Bagamoyo, District. In other words, his claims of interest over the suit landed plot are not proved. The applicant complained that the respondents have entered into his plot while it is not in dispute. If the respondents are executing a different plot from Sanzale, Bagamoyo, District then it is contrary to the execution order of this court. But as long as the respondents in their testimonies 7 were clear that the plots subject for execution are located at Sanzale Bagamoyo, District and the 8th respondent was executing, attaching, and evicting the defendants and whoever who was in Plots No. 26, 27, 28, 29, 20, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, and 44 Block 'B' Sanzale in Bagamoyo, District as ordered in Execution No. 32 of 2020. Then he was on the right track. The whole essence of mounting an investigation and admitting the evidence is to arrive at what is provided for under Order XXI Rule 58 of the Civil Procedure Code, Cap.33 [R.E 2019] which is to establish if the objector holds an interest or is possessed of the property in question. It is not disputable that the attached plots in execution order dated 18th November, 2016 is not the same as the one he claims thus he had no interest in or was possessed of, the property attached. For ease of reference, the said provisions state as hereunder: - "The claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in or was possessed of, the property attached. This court has investigated the objection raised by the applicant as per the requirement of Order XXI Rule 57 (1) of the Civil Procedure Code 8 Cap.33 [R.E 2019], it is clear that the applicant is claiming interest over different plots. Therefore, with utmost respect to the applicant, his contention is flawed, therefore cannot stand. In view thereof, I dismiss the applicant's application for stay of execution without costs. Order accordingly. DATED at Dar es Salaam this 17th November, 2021 \ A A.Z.MGEYEKWA 1121 ■■ v JUDGE . • •• >- . - 17.11.2021 Ruling delivered in the presence of Mr. Mapembe, learned counsel for the applicant, Mr. Makatta, learned counsel for the 8th respondent also holding brief for Mr. Shipande, learned counsel for the 1st, 2nd, 3rd and 4th Respondents. In the absence of the 5th 6th and 7th respondents. A.Z.MGEYEKWA JUDGE 17.11.2021 9