mwajuma limuli vs msolwa madizini 2019 tzhclandd 12 13 september 2019

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 18 OF 2019 (From the Decision o f the District Land and Housing Tribunal o f KILOMBERO District at ULANGA in Land Case No. 231 o f 2017) MWAJUMA LIMULI..................................................APPELLANT VERSUS MSOLWA MADIZINI.............................................. RESPONDENT JUDGMENT OPIYO, J: The Appellant was aggrieved by the decision of the District Land and housing for Kilombero in Application No. 231 of 2017 and preferred appeal to this court on the ground that the tribunal erred in Law and fact in holding that, he was unable to grant the order prayed for by Appellant after realizing that the original proceedings of the main case was not able to be transferred from Morogoro District land and Housing Tribunal Registry to the District land and Housing Tribunal for Kilombero. The matter was heard orally on 12/9/2019 in which the parties appeared in person, unrepresented. The background to the matter was that there was a suit against Mwajuma Limuli and Rajabu Legambasi at the District Land and Housing Tribunal for Morogoro, Application No. 88 of 2010 in which the appellant emerged the winner. At the time of filing the execution, one Ally Yusuph Legambasi filed a revision application at District Land and Housing Tribunal for Kilombero, Misc. Civil Application No. 62 of 2010 in relation to the money held by Kikundi cha Msolwa Madizini as produce from the disputed property. As a result, the appellant successfully applied for stop order restraining Chairman Kikundi cha Msolwa Madizini from effecting payments relating to the produce from disputed property they were holding; pending determination of the application for revision. However, from the records, the tribunal later on waived the restraint order which lead to effecting payment to one Ally Yusuph Ligambasi, applicant in Misc. Civil Application No. 62 of 2010 referred to above. At the time of making payment the appellant herein had appealed against the decision of the District Land and Housing Tribunal for Kilombero waiving the restraint order in Misc. Civil Application No. 62 of 2010. She emerged successful in the appeal at the High Court Land Division in which the proceedings before District Land and Housing Tribunal for Kilombero waiving the restraint order in Misc. Civil Application No. 62 of 2010 were nullified and the decision declaring the appellant the lawful owner of the disputed property by Morogoro District land and housing tribunal restored. After the success in appeal she went back to the so called Kikundi cha Msolwa Madizini for payment of the funds they were holding based on the nullified proceedings, she found that the amount had already been released to Ally Yusuph Legambasi after the waiver of the stop order. The Appellant got aggrieved by the news and filed a suit against "Kikundi cha Msolwa Madizini’ demanding the payment that was supposedly held by them pending determination of the dispute. She lost the case as her appeal was dismissed with costs for lack of Merits. The tribunal held that, since the order to restrain the payment of sum of money had already been waived by the tribunal, there was no further order to direct the respondent to retain the money for the applicant as prayed. Being aggrieved by the above decision is what culminated to the current appeal, on the main ground that the tribunal erred in holding that they were unable to grant the orders prayed for as the order to retain the money had already been waived by the same court. The court heard the parties' submission, both for and against the appeal. However, before determination of the merits of the appeal, the court asked the parties to address it on the legal personally of the Kikundi cha Msolwa Madizini. In their respective submissions, both sides agreed that the said group is not registered. It is just a group of sugar cane growers who came together for the purpose of selling their produce jointly to the sugar company without registration. From such submission, it is my considered view that the group, Kikundi cha Msolwa Madizini, has no legal capacity to be sued. Worse still, even if it was capable of being sued, since it was not a party to the proceedings in Misc. Civil Application No. 62 of 2010 before the District Land and Housing Tribunal for Kilombero, it still could not be sued in isolation for the funds they were allegedly holding by virtue of the order in the nullified proceedings. What the appellant was supposed to do after the nullification of the proceedings in the revision application before District Land and Housing Tribunal for Kilombero in Misc. Civil Application No. 62 of 2010 was to resort back to the execution proceedings against the one she originally won the case against before Morogoro District Land and Housing Tribunal, that is, Rajabu Ligambas in land Application No. 88 of 2010. In law no execution can be effected against the third party to the proceedings. I noted this just by way of passing off, but the main issue remains that the party who was sued had no capacity to be sued, thus, the determination of the appeal ought to have ended there. On that footing, this appeal cannot stand as it resulted from incompetent application for suing incapacitated party, none legal person for that matter. It is as good as no appeal before this court as it originated from incompetent proceedings. Consequently, I proceed to nullify the proceedings, ruling and order emanating therefrom of the trial tribunal, the District Land and Housing Tribunal for Ifakara for the reasons explained above. I make no order as to costs as the ground that disposed of the application was raised by the court suo motu. M. P. OPIYO JUDGE 13/ 9/2019 4