mussa saleh vs fransisca kokuganywa alfred another 2022 tzhclandd 172 22 march 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM REFERENCE NO. 10 OF 2021 (Originated from the decision of this Court in Land Case No. 304 of 2015) MUSSA SALEH ............................................... APPLICANT

VERSUS FRANCISCA KOKUGANYWA ALFRED............ 1STRESPONDENT MAENDELEO BANK PLC ..................... 2ndRESPONDENT

RULING Date of Last Order: 24/02/2022 & Date of Ruling: 22/03/2022 A.MSAFIRI, J. This is an application for reference against the Execution No. 77 of 2019 which originated from Land Case No. 304 of 2015. The applicant named above is praying for this Court to look into the impropriety, irregularity and illegality of the said Execution application and quash and set aside the orders granted therein. The application has been filed by way of chamber summons supported by the affidavit of Mussa Saleh, the applicant himself. The application is brought under Order XLI Rule 1 of the Civil Procedure Code Cap.33 R.E 2019. 1 | Page At the hearing of the application, which was orally, the applicant was represented by Mr Rugemeleza Nshala the learned advocate, the 1st respondent was represented by learned advocate Frank Michael who was holding brief of Simon Mkwizu, advocate of the 1st respondent with no instructions to proceed. The 1st respondent was also present in person while the 2nd respondent was absent. Before embarking on the submissions in support of the application, Mr Nshala informed the Court that until that date which was a hearing date, it was only the 2nd respondent who has filed their counter affidavit. That in the same, the 2nd respondent does not contest this application. However, on the side of the 1st respondent, until the hearing date, she has not filed her counter

affidavit despite being granted extension of time by the court on several times. Mr Nshala told the court that, in such circumstances, he is praying for the hearing of this application to proceed without the 1st respondent. That, in case the 1st respondent is given the right to be heard then it should be on points of law only and not the facts which are disputed. In response, Mr Frank Michael who was holding brief of Mr Mkwizu, stated that, Mr Mkwizu has an emergency and could not enter appearance. He then prayed for the court to be lenient on the 1st respondent and grant her the last adjournment to file her counter affidavit. Mr Nshala reiterated his arguments and added that Mr Michael has not submitted any proof that Mr Mkwizu is sick. Having heard the submissions on both parties, I agree with Mr Nshala that the arguments by Mr Michael has no basis. Earlier Mr Michael when/ / /1 2 | Page addressing the court, he said that Mr Mkwizu has emergency. He did not enlighten the court on what kind of emergency. Later when he was submitting, Mr Michael told the court that Mr Mkwizu who is the 1st respondent's advocate is sick. Again he did not tell the Court on what disease Mr Mkwizu was suffering from nor did he tender any medical chit to support his claims. Furthermore, there was no any formal notice from the counsel for the 1st respondent informing the Court about his absence.

Therefore, I disregarded Mr Michael's claims. On the issue of the Court's leniency on the time for the 1st respondent to file her counter affidavit, I am forced to say that this Court has been too lenient on the 1st respondent. This application was filed in this court under certificate of extreme urgency on 22/10/2021. Parties entered an appearance on 01/11/2021. The applicant was represented by advocate Felista Msoka. She prayed for the time to file a counter affidavit. The Court granted seven (7) days upon which the respondents to file their counter affidavits. On 10/11/2021, again advocate Msoka appeared for the 1st respondent, she prayed for an extension of time to file 1st respondent's counter affidavit. The court granted another seven (7) days. The matter was set for hearing on 26/11/2021. On that date one Mr Ngota, advocate appeared holding brief for Ms Msoka, advocate for the 1st respondent. He stated that Ms Msoka is sick and prayed for another hearing date. The Court gave a last adjournment on the matter and ordered the 1st respondent to file her counter affidavit within three (03) days from that date and set the hearing on 03/12/2021. On the said date the 1st respondent appeared in person and told the court that her advocate is sick and she was unable to proceed. She prayed for another date of hearing. By that time, the 1st respondent had yet to file 3 | Page her

counter affidavit. The Court adjourned the matter with costs and set for the hearing on 24/02/2022. I have narrated this trend of events in this matter to show how this Court has been very lenient on the 1st respondent. As of 24/ 02/2022 the date set for hearing, the 1st respondent has not filed her counter affidavit. Hence, the Court has no any other option but to grant the prayers of Mr Nshala and the matter was heard in absence of the 1st respondent's counter affidavit. Since she was present in person, the 1st respondent was given the right to address the court on legal points only (if she wishes to). Mr Nshala started his submission in support of the application by praying to adopt the contents of the applicant's affidavit. He submitted that the decision of Deputy Registrar in respect of Execution No. 77 of 2019 contravene its decree in Land Case No. 304 of 2015, therefore it should be quashed and set aside. In his opinion, the applicant bought the suit property by way of auction where he observed all the procedures as required by law in public auctions. However, this Court through Land Case No. 304 of 2015 nullified that auction and the sale. He added that, the above-mentioned Land Case simply declared the auction unlawful but did not declare or made the 1st respondent a lawful owner of the suit premises. Mr Nshala stated that, following the nullification of the auction,

the 1st respondent filed an Execution. No. 77 of 2019 before the Deputy Registrar. That the Deputy Registrar through her execution decision made an order that the applicant should be evicted from the suit _ 4 | Page premises which was a wrong decision. This is because, after the decision in Land Case No. 304 of 2015, the 2nd respondent made the procedures of re- advertising the public auction, which was conducted and again the applicant emerged the highest bidder and bought the suit premises on 06/07/202. This was before the eviction order of the Deputy Registrar which was issued on 12/10/2021, therefore the execution order was unlawfully made. In reply, the 1st respondent who has appeared in person was given a chance to respond on legal points only. She argued that since there was declaratory order by this Court which nullified the auction then the applicant was justified to be evicted from the suit premises. She added that the second auction was conducted illegally as there are Cases No. 156 of 2021 and 566 of 2021 at the High Court Dar es Salaam Registry pending on the determination of suit premises. Mr Nshalla reiterated his submissions and added that the submissions by the 1st respondent cannot stand as she failed to file her counter affidavit and what she has stated are not legal points. It should be noted that the 2nd respondent through their advocate Mr Emmanuel Ally,

stated that they are not contesting this application. They have even filed a counter affidavit but they are admitting the contents of the applicant's affidavit. Having heard the submissions of both parties, I had to go through the decree in Land Case No. 304 of 2015 by Hon. Maige, Judge (as he then was) delivered on 27th August 2019 and the ruling on Execution No. 77 of 2019 by Hon. W.A. Hamza, the Deputy Registrar dated 12th OctoberA([I, 5 | Page 2021 and I found that, truly the Deputy Registrar misdirected herself by going extra to execute the decree without considering the order thereon. I say so because there was no order of eviction on the dated decree. For the purpose of clarity I would like to produce the said decree by the Court in Land Case No. 304 of 2015 as hereunder; "1. The relief in item (a) of the prayer's clause in the plaint is awarded.

2. The sale of the suit property by auction 30th August 2015 is hereby nullified with costs." For the better understanding, item (a) of a relief prayer's clause in the Plaint clearly is seeking for the order of the Court in regard to the auction dated 30th August, 2015 to be declared null and void. The Court basing on that specific prayer among other prayers simply nullified the auction as prayed for and no other orders were issued. The Hon. Deputy Registrar who is the Taxing Master, interpreted the said order to mean parties are restored to their original positions before the auction took place, meaning that the decree holder should vacate the suit premises. With due respect the Taxing Master was wrong, the decree simply nullified the auction for being wrongfully conducted. However, there is nowhere in the decision or decree of Land Case No. 304 of 2015 where eviction order was among the sought reliefs and same was granted by the Court. In the Plaint of the Land Case No. 304 of 2015, the plaintiff now the 1st respondent sought for the following relief (s) orders; "(a) an order declaring the auction dated 3Cfh August 2015 null and void h II o. 6 | Page (b) An order directing the 1st defendant to sit with the plaintiff and determining (sic) the debt payable. (c) An order directing the first defendant to receive the amount payable within the contracted period of three years

by rescheduling the mode ofpayment. (d) An order of permanent injunction restraining the defendants from interfering with the possession of the suit premises as long as the plaintiff is complying to the rescheduled mode ofpayment. (e) Payment ofgeneral damages suffered by the plaintiff as a result of first defendant conduct. (f) Costs of the suit to follow event. (g) Any other orders/ reliefs this honourable Court shall fit to make." Clearly from the above reliefs sought by the 1st respondent in her Plaint in the main case, there is nowhere the eviction order was sought and then granted by the Court. It is trite law that what need to be executed by the Taxing Master is only what has been ordered in the decree subject to execution. In the case of East Africa Development Bank vs. Blue Line Enterprises, Civil Application No. 57 of 2004, Court of Appeal of Tanzania explained that; decision capable of being executed should be the one that has given rights to the party seeking to execute in the decree. /L- 7 | Page Here, the omission was for the Deputy Registrar to execute the un­ existing order in the decree and making assumption that the Honourable Judge intended to restore the parties to their original positions which includes the eviction of the applicant which was wrong. Having said that and for the reasons stated above, I hereby quash and set aside the decision of a Taxing Master in Execution No. 77 of 2019 and proceed to order that the Execution to be conducted according to the Decree in Land Case No. 304 of 2015 delivered by this Court dated 27th August 2019. Each party to bear their own costs. It is so ordered. Dated at Dar es Salaam this 22nd Day of March 2022. A.MSAFIRI

JUDGE 8| Page