NASI MURUO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (THE SUB-REGISTRY OF ARUSHA) AT ARUSHA PC. CIVIL APPEAL NO. 21874 OF 2024 (Originating from Misc Civil Application No. 14 o f2023 o f District Court o fArusha before Hon. B.I. Mwakisu, SRM, Original Civil Case No. 91 o f1977 o fArusha Urban Primary Court before Hon. J.M. Keraryo, PCM) NASI MURUO...........................................................................APPELLANT Versus VICKY EDWARD (as an Administratrix o f the Estate o f the late EDWARD LENJASHI)...................... ........................... RESPONDENT JUDGMENT 25/11/2024 & 17/02/2025 I.e. MUGETA, J: Time allowing, I would have recounted the long history of this case. On that account, I shall abridge it. The appellant holds unexecuted decree in land case No. 91 of 1977 issued by the Customary Land Tribunal for Arusha on 22/05/1979. After several failed attempts to execute the decree, the appellant resorted to executing the decree via the Primary Court of Arusha District at Arusha also known as Maromboso. The case was filed as a duplicate file with No. 91/1977. This was in 2018. As the available record of the 1 Primary Court does not reflect the historical background of the case before that year, I limit the discussion to the available documents. At the Primary Court, the appellant raised a point of preliminary objection that it has no jurisdiction and that the case is time barred. The same were both overruled. It was ordered execution to proceed. The respondent filed revision proceedings in the district court whose decision is the subject of this appeal. The district court held that the Primary Court had no jurisdiction. The appellant have filed this appeal to challenge that decision on four grounds of appeal. However, in the submissions, only one complaint has been addressed meaning the others have been dropped. I shall also limit this decision to that complaint which is in the first ground of appeal. The first ground of appeal is that the District Court erred to hold that the Primary Court has no Jurisdiction. In his argument to support this ground, Mr Lengai Nelson Merinyo, learned counsel for the appellant, has relied partly on the decision of this Court in another case involving the parties, (CP) Civil Appeal No. 49 of 2019, High Court Arusha (unreported) to argue the issue of jurisdiction. In that case, this Court remitted back the record to the Primary Court to reconsider the application for execution upon involving the legal 2 representative of the respondent. Mr. Lengai considers that statement as court's order to the effect that the Primary Court has jurisdiction. This issue was considered by the District Court and it held. "The High Cout could not conferjurisdiction to a forum whose jurisdiction to entertain such matter is expressly ousted by the law. The mischief behind the High Court directive was to enable the Primary Court to ascertain itself if at all it has jurisdiction and make appropriate decision to that effect" I agree with the decision of district Court. The High Court did not hold that the Primary Court has Jurisdiction. I also agree with Mr. Ombeni Kimaro, learned counsel for the respondent, that the issue before the High Court in the above cited case was not jurisdiction of the primary court but institution of the proceedings in the name of a dead person. The foregoing notwithstanding, the issue whether the Primary court has jurisdiction remains unanswered. In their submissions, the counsel for the parties have addressed the legal aspect as to the jurisdiction of the Primary Court. I shall consider their arguments in general terms when relevant to the point under consideration. The district Court held that under section 3 of the Rent Restriction Act, 1984, the decision of the Customary Land Tribunal for Arusha in land case No. 91/1977 ought to have been executed by the Resident Magistrates' Court. Counsel for the respondent supports this finding. However, counsel for the appellant has argued, and I agree, that the Rent Restriction Act was not applicable to this case. It is my view that, the Tribunal which passed the impugned decision operated under the Customary Leaseholds (Enfranchisement) Act, 1968 not the Rent Restriction Act. On that account, the mode of execution of that Tribunal's decision was provided for under section 12 (1) of the said Act which reads: "a duly authenticated copy o f any decision or order o f a Tribunal may be filed by any party to the proceedings or by the Tribunal in a Primary Court having jurisdiction over the area which the land to which the decision or order relates is situated and on such decision or order being filed it may be enforced as an order o f the Primary Court." Therefore, the Primary Court has jurisdiction. The district Court erred to hold to the contrary. The Resident Magistrates' Court's jurisdiction covered orders of the Regional Housing Tribunal under the Rent Restriction Act not Customary Land Tribunals. Counsel for the respondent has argued that the Customary Leaseholds (Enfranchisement) Act, 1968 did not apply to Arusha Region. Counsel for the appellant did not counter this argument as he did not file a rejoinder. With respect, the learned counsel for the respondent has not done properly his homework. I have delved into history and found that the Customary Land Tribunal for Arusha Region was established in 1974 by the Minister vide section 8 of the Customary Leaseholds (Enfranchisement) Act, 1968 by gazetting it under Government Notice No. 200/1974 published on 09/08/1974. Therefore, the tribunal existed legally and the law equally applied in Arusha region. For completeness, I shall proceed to deal with the delayed execution. The Primary Court record shows that the decision of the Customary Land Tribunal for Arusha in land case No. 91/1977 was appealed. The final appeal decision was passed by the Customary Land Appeal Tribunal at Dar es salaam on 7/11/2000 in land appeal 101/2000. The record is silent as to why the appeal was filed to that court as appeals from the Customary Land Tribunal ought to have been lodged to the Minister in terms of section 13 (1) of the Customary Leasehold (Enfranchisement) Act, 1968 as amended by Act No. 43/1969. Be as it may, the appeal tribunal delivered a decision on 07/11/2000 which means the period between 1979 - 2000 ought to be excluded in computing the 5 limitation period. Then, execution started at the Primary Court in 2001. The same is incomplete to date. The execution, therefore, is not time barred. It is common knowledge that the Customary Land Tribunals no longer exist. As argued by counsel for the appellant, the residue mechanism for determination of matters pending in courts and tribunals before the current mechanism of land disputes settlement following the enactment of the Land Act, 1999 is under section 54 (2) of the Land Disputes Courts Act [Cap 216 R.E 2019]. It provides: "Every decision or order o f the High Court, the Magistrates' Courts, Regional Housing Tribunal, Housing Appeals Tribunal, Customary Land Tribunal and the Customary Land Appeal Tribunals which shall not have been fully executed or enforced before the date o f commencement o f this Act, may be executed and enforced after that day as if this Act had not been passed" In view of the above provision of the law, I hold that the enforcement mechanism of decisions of the Customary Land Tribunal still lies with the Primary Courts. For the foregoing, the judgment of the district Court is hereby quashed. The decision of the Primary Court is restored with direction that execution proceeds from where it ended. I.C. MUGETA \ :i JUDGE 17/ 02/2025 Court: Judgment delivered in chambers in presence of Lengai Merinyo, Advocate for the appellant who is absent and in the presence of respondent and Mitego Methusela holding brief for Ombeni Kimaro, Advocate for the respondent. Sgd: I.C. MUGETA JUDGE 17/ 02/2025