NMB vs ZAKAYO ZAKARI SULLE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

ARUSHA SUB REGISTRY

AT ARUSHA LAND APPEAL NO. 12013 OF 2024 (C/F Application for execution No. 23 of 2024, originating from bill of cost application No. 11 of 2018 in the District Land and Housing Tribunal Karatu) NATIONAL MICROFINANCE BANK PLC..................................... APPELLANT

VERSUS ZAKAYO ZAKARIA SULE...............................................................RESPONDENT

JUDGMENT 3/03/2025 & 06/03/2025 NDUMBARO, 3 The appellant herein is dissatisfied with the decision of the District Land and Housing Tribunal for Karatu in execution application No. 23 of 2024 derived on 18th April 2024; hence, this appeal is on the following grounds; 1. That the trial tribunal erred in law and fact by failing to comply with mandatory provisions of Order XXI Rule 13 of the Civil Procedure Code.

2. That the trial tribunal erred in law and fact by failure to comply with mandatory provisions of Rule 23 of Court Brokers rules by attaching property whose value is above the decretal amount.

3. That the trial tribunal erred in law and fact for ordering the attachment and sale of property located at Plot No. 3 Block G without following the required procedure for realizing the decretal amount from the landed property. When the matter was called for orders, the respondent raised the Preliminary Objections (POs) to the effect that, the court had no jurisdiction to hear and determine the matter. The preliminary objections had to be disposed of first. On hearing of the POs, the respondent was self-represented, and the appellant enjoyed the service of Advocate Nichorous Leone. With leave of court, the POs were disposed of by way of written submission. Arguing in support of the POs, the respondent submitted that, the ruling and orders issued by the Tribunal are non-appealable referring to Section 41 of the Land Dispute Court Act Cap 216 RE 2016 and Regulation 24 of Land Dispute (Land District and Housing Tribunal) 2 Regulation GN 174/2003, that, appeal is only available when tribunal exercising original jurisdiction. In support of the argument, citing a case of Rajabu Idd Kikoti Vs Acess Bank Tanzania Limited & Others Land Appeal No. 2787 of 2024 page 7 and Chacha Nyikongoro Vs Ndege Kiseke Misc. Land Appeal No. 145 of 2020. The remedy where a person is aggrieved with execution proceedings is to file an application for revision and not appeal, therefore, the matter is

incompetent before this court. Argued further, Under section 74 and order XL of CPC, orders from execution proceedings are not appealable, he made a prayer that, this matter be struck out with cost. Responding to the above submission, Mr. Leone, the counsel for the appellant, argued that the respondent's POs had no merit. Submitted that, there are two schools of thought in this matter, one on the cited case of Rajabu Idd Kikoti and Chacha Nyikongoro (supra) and the other side, the case of Sospeter Ramadhan & 2 others Vs Mchiwa Chedego Misc. Land Appeal No. 37 of 2023 HC Dodoma page 10. That the ruling and orders issued by the Tribunal are appealable. 3 Mr Leon went on arguing that remedy or right to appeal against orders /rulings has been provided in Section 41 of the Land Dispute Court Act Cap 216 RE 2016 and Regulation 24 of Land Dispute (Land District and Housing Tribunal) Regulation GN 174/200. Submitted that he is aware of the provision of order XL rule 1 and section 74 of the Civil Procedure Code; however, it does not apply to land matters. Having considered the parties' submissions, it is time for the court to consider if the POs have merit. The main issue herein is whether the execution order is appealable to warrant the jurisdiction of this court to entertain this matter. The respondent's counsel maintains that no appeal is allowed under section 41 Land Dispute Court

Act Cap 216 RE 2016 and Regulation 24 of Land Dispute (Land District and Housing Tribunal) Regulation GN 174/2003, while the appellant maintains that the section supports appeal. Section 41 of the Land Dispute Court Act Cap 216 RE 2016 and Regulation 24 of Land Dispute (Land District and Housing Tribunal) Regulation GN 174/2003 are all about the jurisdiction of the high court in all appeals, revisions, and similar proceedings originating from DLHT in the exercise of its original jurisdiction. As previously stated, the issue in this matter is the appealability of the Land and Housing Tribunal execution order. I am aware of the existence of two antagonistic positions in this area. Order XL Rule 1 of the Civil Procedure Code Cap 33 R.E. 2019 is clear to the effect that a party can appeal against an order made in execution if it falls under the list of appealable orders, to which execution order is not among the list. However, it was the argument of the appellant that CPC is not applicable in land matters as section 41 of Land Dispute Court Act Cap 216 RE 2016 and Regulation 24 of Land Dispute (Land District and Housing Tribunal) Regulation GN 174/2003 is clear that execution orders are appealable. Considering the rival submissions of the parties on appealability of execution decree in land matters, and considering the two conflicting decisions of the high court in this area, I

wish to consider the intention of the legislature in this area. In doing so, I will reproduce the wording of the sections and analyses thereafter. Section 41 of the Land Dispute Court Act Cap 216 RE 2016 "Subject to the provisions of any 5 law for the time being in force, aii appeals, revisions and similar proceedings from or in respect o f any proceeding in a District Land and Housing Tribunal in the exercise o f its originaljurisdiction shall be heard by the High Court". Regulation 24 o f Land Dispute (Land District and Housing Tribunal) Regulation GN 174/200 provides that '!a person aggrieved by the decision o f the Land and Housing Tribunal shall appeal to the high court". It is my view that section 41 above is to the effect that the High Court has jurisdiction to hear the appeal or revision from the District Land Housing Tribunal (DLHT) in exercising original jurisdiction. Underlying the principle of Interpretation of Laws, under Interpretation of laws Act Cap 1, the regulation was meant to clarify the main Act, filling in lacuna, but not to provide the guiding principle. To that effect, it is my further view that Regulation 24 went on to clarify section 41 that any person aggrieved by the decision of DLHT in exercising original jurisdiction shall appeal to 6 the High Court: Considering the matter at hand, the question is, is the execution court exercising original

jurisdiction?, In my view, the answer is definitely no. It is my further view that, the intention of the legislature in execution proceedings is to enforce a final judgment, not to re­ examine the merits o f the case, allowing appeals on execution orders would undermine the authority o f final judgments and create an endless cycle o f litigation, hence delaying justice contrary to on overriding objective as it was enshrined in the case of Kuringe Real Estate Co. Ltd vs Mwazani Ally Swakali (As administratrix of the late Ally Suleman Swakali) & 4 Others (Commercial Case No. 45 of 2023) [2024] TZHCComD 113 (12 June 2024) referring Section 3A and 3B of the CPC that, the overriding objective be to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. The Court shall, in the exercise of its powers or the interpretation of any of its provisions, seek to give effect to the overriding objective specified. I took the trouble to go through the said decree claimed to go beyond the court order. Looking into the said decree, the appellant herein was ordered to pay the amount declared in the judgment within the prescribed time; in case of failure to pay within such time, his house located in Karatu Municipality will be sold to satisfy the decree herein, I wish to reproduce the DLHT decree for the purpose of clarity; Hivyo baraza hffi Unatoa Amri

kwamba: 1. Mshindwa tuzo amlipe kiasi cha shiling 47,404,000, msinda tuzo kama ilivyoamliwa katika hukumu ya kesi ya msing tarehe 11/2018 na amri ya madai ya gharama No. 76/2023 ndani ya muda wa kisheria 2. Enapo mshindwa tuzo atashindwa kuteke/eza amri hiyo kwa hiari yake mweneyewe baraza h ili Umamteua daiaiai wa baraza U/ofamo Auctioner and Court Broker Limited kuteke/eza amri hii kwa nguvu na kukamata na kuuza kwa kufuata utaratibu wa kisheria maii ya mshindwa tuzo plot No. 3 block G i/iyopo Karatu Mjini kwa gharama za mshindwa tuzo na kumiipa mshinda tuzo. Aidha OCD wilaya ya karatu unaagizwa kusjiriki katika zoezi hili kulinda amani na utulivu. Imeamriwa hivyo

MR MAKOMBE

MWENYEKITI 8 18/04/2024 What I see in this matter is that the appellant failed to satisfy the decree within the prescribed time, which mandated the Tribunal-appointed broker to execute the court order after such failure. The order was extracted from the tribunal judgment, and the order was specifically to the effect that the appointed broker should comply with the relevant laws. As previously stated, execution proceedings are intended to enforce a final judgment, not to re-examine the merits o f the case. The appellant is inviting this court to re-examine the merits of the case. The judgment was clear to the effect that, in case of failure to satisfy the order, the court- appointed broker shall execute the decree on adherence to the laws in attaching the appellant's house located at Karatu Municipality. Considering the fact above, the appellant was ordered to pay within the prescribed time, and in the event of failure to comply within the prescribed time, the tribunal-appointed broker in compliance with relevant laws shall automatically execute the order. It is the position that no decree is required to go beyond what was ordered in the judgment; however, if it goes beyond or the execution procedure were not adhered to, the appropriate remedy is revision or referring the matter back to the executing court or tribunal. The said position is clear in Section 38 of Civil Procedure

Code Cap 33 RE 2022 that the executing court is the appropriate court to determine any question in the execution decree as follows; 38.-(1) "All questions arising between the parties to the suit in which the decree was passed, or their representative, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit" Extracted from the above quoted execution order and section 38 of CPC and considering the intention of the legislature, which goes hand in hand with the principle of overriding objective, I wish to subscribe to the decision of my learned brother, Principal Judge Dr Mustapher Siyani J, in the case of Ignasio Ignas Vs. Rose Hanselem Mpangala Civil Appeal No. 65 of 2017, that: 10 '!'allowing appeals against any order relating to execution which otherwise were not intended by the drafters o f our laws to be appealable and or where the law provides other mechanism for challenging them; will be opening floodgate o f endless litigations" Considering that position, I am confident that the execution order herein is not appealable. In the event I find merit in this preliminary objection, I therefore strike out this appeal with costs. It is soisrcteced. D. D. NDUMBARO

JUDGE 04/03/2025 11