20181211 TZHC Mwanza3

IN THE HIGH COURT Of TANZANIA C MWANZA DISTRICT REGISTRY. AT MWANZA~ LAND APPEAL NO. 66 OF 2017. (ARSING FROM LAND CASE NO 25 OF 2017 FROM CHATO DISTRICT LAND AND HOUSING TRIBUNAL FOR CHATO BY HON. KITUNGULU, CHAIRMAN) NGOLO NGUSA .................................................. ~··· APPELLANT. VERSUS NASRA ALLY ....................................................... RESPONDENT. Date of last order: 27/11/2018. Date of judgement: 11/12/2018. JUDGEMENT. MAGOIGA, J. The appellant, NGOLO NGUSA aggrieved by the order of the District Land Housing Tribunal for Chato to pay the respondent Tshs. 1,867, 500/= being money admitted to be rent due, has preferred this appeal faulting the findings of the trial tribunal i_n the following grounds of appeal, namely:- I 1. That the District Land and Housing Tribunal erred in law when it entertained the matter which does not fall under the ambit of its jurisdiction in as much as the dispute between parties revolve around purely contractual and not on the land matter so the 1 r~ l. ,\, respondent was supposed to be lodged in any ordinary court of c( (I V ..... law. 2. That the District Land and Housing Tribunal erred in · law to entertain the matter arise of contract so the District Land and Housing Tribunal entertained a matter which was not within its jurisdiction. 3. That the District land and Housing Tribunal erred in law for not considering the appellant prayer that the appellant to pay the respondent after entertaining the disputed house between the respondent and Chato Amcoss i_f1 the land case_--no 25 of 2013 before Chato District Land and Housing Tribunal. The facts of this case are that in 2013 the appellant rented a business room to the respondent which contract was reduced into writing. The renewal of the contract continued since then up to 2017 -when the appellant defaulted payment of rent to the tune of Tshs. 2,337,500/=. The dispute sailed through to the District Land and Housing Tribunal. The appellant upon served with the application, filed a reply to the application disputed the amount of Tshs. 2,337,500 but admitted in writing to be indebted to the tune of Tshs. 1,867,500/:=. When the 2 Cfnatter was called for mention and the application was read to her she ( ,j ·admitted orally in court and the court recorded her in the following words:- "Respondent: it is true that the applicant claims me total of Tshs. 1,867,500/=. I pray to pay by instalments." The counsel for respondent prayed that the admitted amount be paid by 06th August 2017. Following this state of affairs, the court ordered the appellant to the admitted amount by 15/08/2017. , The appellant instead of paying the admitted amount opted to_ file this __ _ ... appeal to the High Court challenging the trial court not on the admitted amount but raising matters not even directly related to the order of payment, hence this appeal and judgement. After hearing the parties and upon perusing the trial court record without much ado and without wasting much time discussing the merits of the appeal or otherwise, I have noted that the instant appeal is incompetent, misconceived and in deed is an abuse of the court process on the part of the appellant. The order that was given by the trial tribunal was interlocutory order on admitted fact which need no proof and same did 3 ri'ot bring the matter to its finality. Hence it is an order which is barred by (i, \.J fhe provision of section 74 of the Civil Procedure Code, [Cap 33 R.E. 2002] which provides as follows: Section 74 (.1) N/a (2) Notwithstanding the provisions of subsection (1) and subject to subsection (3), no appeal shall lie against or be made in respect of any preliminary or interlocutory decision or order of the District Court, Resident Magistrate's Court or any other tribunal, - -----·-· unless such decision or order has effect of finally determining the suit. (underline mine). Perusal of the above provision it is clear an order that was given by the trial tribunal was interlocutory order not envisaged to be· appealed against, because it did not determine the matter to its finality. Even ·1ooking at the grounds as contained in the memorandum of appeal surely one cannot fail to tell that the appellant's appeal was preferred without good faith. Because he is raising issues not canvassed in the 4 j ;:.1 ·.?i -- t order of the trial tribunal and even in her defence. This cannot be ".'J ·! fj i;.J {\ allowed and tolerated at all. Therefore, that said and done I find the instant appeal incompetent or· rather prematurely preferred and for that reason alone, I do hereby i . ··/ j dismiss this appeal with costs. This matter be remitted back to Chato District Land and Housing Tribunal for its final determination. It is so ordered. Date at Mwanza this 11th day of December, 2018. S. M. JUDGE. 11/12/2018. 5