20140530 TZHC Iringa

,, f, ·, ... -. ~: .:- -·~ -, _.,_ -~" ~-I>.- t:, -,'.~~;\:-,i--,~/:·:_ ,:?>;~·::/~,,, IN THE HIGH COURT OF TANZANIA. [LAND DIVISION} AT IRINGA -LAND CASE APPEAL NO. 7 OF 2012 (From the decision of the District Land and Housing Tribunal of Iringa District at Iringa in Land Case No. 2 of 2012) NATHAN EDWARD MNYAWAMI .......... APPELLANT VERSUS 1. PENDAMACHEKO MAKONGWA 2. FADHILI KINYAMAGOHA 3. THOBIAS NJARO 4. NAITED MTEGO ... RESPONDENTS 5. SAMWEL LUKIGINILE 6. MERINA MKEMWA 7. BATHELOMEO KAIWANGA 10.4.2014 & 30.5.2014 RULING MADAM SHANGALI, J. The appellant/ applicant Nathan Edward Mnyawami filed a suit before the Iringa District Land and Housing Tribunal (Land Application No. 2/ 2012) seeking for eviction of the respondents from the pie~ce of land· measu1:e 200 acres. Befo_re the commencement of hearing: _of the suit before the District-~- · · 1 Land and Housing Tribunal the counsel for the respondent Mr. 'J I\ Mwamgiga raised -preliminary objection to the effect that the l appell?TI-t/ applicant has no locus standi to sue the respondent because he· has no right or interests on the suit premises: --The preliminary obj.ection was sustained and the suit was struck out with costs. Dissatisfied with that dec;:ision the appellant has- filed an · appe~ to this court. Before the hearing/of the appeal Mr. MwJµngig~ _J:ias '-filed another prelimi~1'.Eiiy objection claiming ·, ,·. . . :that ~he appellant's appeal is incompetent as it contravenes the· mandatory _provisions of_ the Land · Disput~ Court (The . . · . Disp~te Land and Housing· Tribunaij Regulations, 2002. . .. '• •.• ... In the hearing of the preliminary objection Mr. M~~giga · submitted that the -decision on the preliminary objection on ' . ·the Lanq. Application ·No. 2/2012 dated on 26/6/2012 in favour of the respondents is a.n interlo~utory decision which is not appealable. He stated that the decision did not finally and conclusively determined the suit because the applicant has_ a chance to correct his struck out application by bringing the person with locus standi on the matter. In support of his position he cited Section 7 4 (2) of the Civil Procedure Code which states clearly that no appeal shall lie on any p~eliminary or interlocutory order unless such decision or order has the effect of finally determining the suit. Mr. Mwamgiga also cited ,,,~ • "I;· '1.. ~- . ~ , • • •: , I l • • ;._ t "- Sec ti oh 43 (2) of the Magistrate Court Act and Section 22 of ·2 ,,. -.. ·.. ·. ;' .. 1:•1; .;, - .'I. '..,•t; "~ '•1 :,•l~::;.f,<t ~:{f ,~;1ri:'.'/~\,?:\ :l/1c<j.:~-i; :"·-_ ~:/•., _.-. •-. ~s:'.i, -- ·.., ; ',i . . . -:. :.r; ?· :,. - the Land Dispute Court (The · Dist1ict Lar1d and· Housing Tribunal) Regulations ·which states that a ruiing on a preliminary point of law or on any interlocutory application which have no effect of finally deciding the case shall not be appealable. In response, Mr. Kingwe, learned advocate who represented the ·appellant submitted that the point of preliminary object~on raised by the respondents has no merits at all because the order of the Iringa District Land and Housmg Tribunal dated 26/2/2012 has finally and conch3:5,1vely decided the interest of his client, the appellant. - H~ stated that the only p·erson with the interest on the alleged piece of land in dispute . and .the . one who was . denied that interest ·on allegation of lack of locus standi is the appellant. Mr. Kingwe stated that the laws cited by. the respondents counsel are not applicable in this matter because the decision against the appellant is not a preliminary or interlocutory order. He stressed that the only remedy for the appellant was to appeal to this court in defence of his interest on the suit land. Having closely and anxiously given consideration to the submission made by both c01insels, I am convinced beyond doubt that the raised point of preliminary objection 1s untenable. 3 •. ! ~., .... ~ . . ~· ,. ·,., ....... ,',,/ .. ,.. t--. ' ",( Mr.· I\tf ~ramgiga is absolutely wrong ~rhen he claim that the decision of the. trial District Land· and Housing Tribunal dated 26/2/2012 is an interlocutory or~er which did not finally and conclusively determine the interests of the appellant on the suit land, hence not appealabie. With due respect to the learned counsel, that decision of the . District Tribunal totally and completely extinguished the rights of the ~-appellant ov~r the suit land by declaring him a person with no locus stand to <:laim any right over it. That decision finally and conclusively negative~y determined the rights and interest :- .,C?f tlie appellaht on the suit land and the onl:y remedy for him . . . .. . w~s to lodge an· appeal as he has done. Therefore the point of preliminary obje~tion 1s _J;iereby' _rejected and overruled with costs.. M. S. SHANGALI JUDGE 30.5.2014 . __ ·, ....... ·t·.;.1 4