MWITA NDURA RULING 0001

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (MUSOMA SUB REGISTRY AT MUSOMA) LAND REVISION No. 6915 OF 2024 (Arising from the District Land and Housing Tribunal for Mara at Tarime in Misc. Land Application No. 157 of 2017) WNITK NDURA KEBANDA.................................................... APPLICANT Versus MUSA MASWEGA MARIBA.................................................... RESPONDENT RULING 24.10.2024 & 24.10.2024 Mtulya, J.: The record of instant application displays Mr. Mwita Ndura Kebanda (the applicant) praying for this court to revise a ruling in Misc. Land Application No. 157 of 2017 (the application for execution) issued on 24th September 2021 by Hon. Ngukulike N. O., learned Chairman of the District Land and Housing Tribunal for Mara at Tarime (the district tribunal). The reason in favor of tire application is stated by the applicant, that: this court has to satisfy itself on the correctness, legality or propriety and regularity of the proceedings and orders of the district tribunal in the application for execution. The complaint of the applicant is well drafted in the seventh paragraph of the affidavit, that: The Ruling of the District Land and Housing Tribunal for Tarime at Tarime in Misc. Application No. 157 of i 2017 is tainted with illegality, irregularities and impropriety because it does not contain the description of the disputed land such as location, size and boundaries which has been awarded for execution. In expounding the cited paragraph, Mr. Onyango Otieno, learned counsel of the applicant, submitted that the decision in the application for execution is un-executable for want of land descriptions. According to him, the decision of the Itiryo Ward Tribunal (the ward tribunal) in Land Dispute No. 15 of 2015 (the dispute), which had resolved the parties' differences in land lacked descriptions in terms of land location, size and boundaries. According to him, the missing details makes it difficult to identify the disputed land for execution purposes. In order to substantiate his move, Mr. Onyango had cited the seventh and eighth paragraphs in the affidavit arguing that the circumstances in the application for execution needs intervention and revision of this court in order to pronounce the execution is un-executable. However, the source of the applicant's complaint today is based in the dispute which was determined by the ward tribunal. The tribunal had resolved in favor of the respondent in the disputed land and its decision was protested and upheld by this court at Mwanza Registry in Misc. Land Appeal No. 36 of 2016 (the land appeal) via the District Land and District Tribunal for Mara at Tarime (the district tribunal) in 2 Land Appeal No. 16 of 2016 (the appeal). In the appeal and land appeal decisions, a land descriptions issue had cropped up and both the district tribunal and this court had declined to resolve in favor of the applicant's arguments on want of land descriptions. The reasons of the declines are well displayed in the land appeal. There was no further appeal to the apex court, the Court of Appeal, to contest the decision of this court in the land appeal on the complained issues of land descriptions. The move, if it was initiated by the applicant, would have produced a position of the apex court and settled the matter. In brief, this court had already settled the dispute at its level without any further protest on the subject to the apex court. In brief, it is functus officio in the contest. Today, the decision of application for execution is protested at this court for want of certainty of the disputed land and the applicant states at the eighth paragraphs in the affidavit that the decree is un-executable for want of location, size and boundaries of the disputed land. The applicant has preferred the present revision requesting this court to pronounce the decree from the decision of this court is un-executable. This court was uncertain on whether the order of this court to pronounce that the decision in application for execution is un- executable. The concern is based on an issue whether the intended 3 decision of this court will not interfere with the merit of the main dispute resolved in the ward tribunal, district tribunal and this court. This stems from the assumption that this court if resolves in favor of the applicant, there may be two decisions of this court with distinct positions on the same subject matter. It is also impossible for this court to pronounce that the decision of the ward tribunal in the dispute is un-executable, without the record of the ward tribunal in the dispute and its dual associated appeals. The intended decision on the subject may also invite conflicting decisions of this court as the previous decision of this court in the dispute had resolved that the decision of the ward tribunal is executable. If that happens, it may not only be lack of respect of previous decisions this court, but also invitation of more fracas in the dispute and justice to the parties. Noting the dilemma is tenacious, this court had invited the parties to explain on the legal rumble of the matter. It was done so for the parties to enjoy the right to be heard as part of cherishing article 13 (6) (a) of the Constitution of the United Republic of Tanzania [Cap. 2 R.E. 2002] (the Constitution) and section 3A (1) of the Civil Procedure Code [Cap. 33 R.E. 2019] and right record of the dispute. According to Mr. Onyango this court is empowered under section 43 (1) (b) of the Land Disputes Courts Act [Cap. 216 R.E. 2019] to 4 revise the decision in Misc. Application No. 157 of 2017, without interfering with the contents in the dispute resolved in the ward tribunal, district tribunal and this court. In his opinion, this court in resolving the instant application will not interfere the indicated decisions, but will be checking correctness of the decision in the application for execution to see whether the decision is executable. His prayer is only that this court to pronounce the decision is un­ executable without any further interpolations in its decision. The respondent on the other hand submitted that he had a land dispute for a long period of time with the applicant at several levels of courts, and during hearing of the application for execution, he remained silent on land certainty or land descriptions. According to the respondent, the dispute at the ward tribunal was searching for the rightful owner of the disputed land and he was pronounced a winner of the matter supported by the district tribunal and this court. In his opinion, the applicant is not his neighbour and they had no land boundaries disputes. The respondent submitted further that the issue of land certainty and boundaries was raised by the applicant in this court during hearing of the land appeal, but it was declined. According to him, this court had ordered the parties to go to the district tribunal to execute the 5 decision of the ward tribunal in accordance to the materials registered during hearing of the dispute at the ward tribunal. In brief, this revision seeks to scrutinize a point of law based on illegality of the decision in the application for execution on the complained issues of land location, boundaries and size. The applicant, in short, protests the record of the ward tribunal for reasons of specification of the disputed land in the instant application, originated from execution proceedings, and without the records of the ward tribunal, district tribunal and this court in the previous appeals. In such circumstances, it is difficult for this court to learn the alleged uncertainty of the disputed land. The instant record shows that there is in place the decision of this court in the land appeal which had resolved the dispute to produce the complained decree intended to be executed. Whatever scripts of the decree, it cannot be altered or interpreted in an application like the instant one at this stage of proceedings. The decree has to be executed as it was directed by this court in the land appeal, unless the contents of the decision of the ward tribunal are disputed in accordance to the prerequisite laws and procedures. The established practice in this jurisdiction dictates that executing courts, at its original or appellate mandate, must comply with whatever writings displayed in decrees. The practice is now settled and certain 6 and this court must cherish without any reservations (see: NCL International Limited v. Alliance Finance Corporation Limited, Civil Reference No. 6 of 2021 and Joseph Godfrey Jimbika v. Elizabeth James, Civil Revision No. 14 of 2020). The practice is appreciated and followed in common law jurisdictions of England and India without complaints (see: Re Overseas Aviation Engineering (GB) Ltd [1962] All ER 12]; Ramswami v. Kailash Theyar, AIR 1951 SC 189; and Topanmal v. Gandaram, AIR 1960 SC 388). I am aware Mr. Onyango has cited the mandate of this court, enacted in section 43 (1) (b) of the Land Disputes Courts Act, to call, revise and make appropriate orders, when it thinks fit, for interest of justice and right record. However, the mandate enacted in the cited law, has its limitation in certain circumstances, like in the instant case, where the issue complained has already been considered and resolved by this court. Inviting this court at this stage to invoke the indicated section, is to invite this court to resolve the same issue again through back-door and alter its own previous decision. The course will not only breach the traditional respect of previous decisions of this court, but also decline the established practice of the role of executing court. In the end, and having said so, I hereby dismiss the instant application without costs for want of respect of previous decisions of this court on the same subject matter and alterations of the contents 7 of the decrees. I declined costs for obvious reason that the applicant was prosecuting his cause in good faith in search of his land rights. The applicant if so wish, may dispute the contents in the decision of the ward tribunal in accordance to the appropriate laws and procedures. Ordered accordingly. F.H. Mttil Judge 24.10.2024 This delivered in Chambers under the Seal of this court in the presence of the applicant, Mr. Mwita Ndura and his learned counsel, Mr. Onyango Otieno, and in the presence of the respondent, Mr. Musa Maswega. . Judge 24.10.2024 8