omary c chamshama vs fatuma a tunu 2021 tzhclandd 6956 8 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC QF TANZANIA (LAND DIVISION) AT DAR ES SALAAM REVISION NO. 38 OF 2020 (Arising from the Order of District Land and Housing Tribunal for Kinondoni in at Mwananyamaia in Misc. Application No.85 of 2018) OMARY C. CHAMSHAMA...., APPLICANT VERSUS FATUMA A. TUNU RESPONDENT Date of Last Order: 30.09.2021 Date of Ruling: 08.11.2021 RULING V.L. MAKANI.J The applicant OMARY C. CHAMSHAMA is seeking for the following orders: 1. That this Honourable Court be pleased to declare that the acts of the respondent to execute the Court Order without applying to the Tribunal Is unlawful and amounts to abuse of the Tribunal process 2. That this Honourable Court be pleased to setaside execution of the Order Issued on 04/08/2020 by Kinondoni District Land and Housing Tribunal In Miscellaneous Application No. 85 of 2018 to the extent of Item 2 and 4(H) of the application for execution. 3. That in case a subsequent order for safe of the properties to be attachedisissued or made,iet this honourabie Court order to restore the same to the appiicant 4. Any other reiiefs this Honourabie Court may deem fit andjust to grant 5. Costs ofthis appiication. The application proceeded by way of written submissions. Mr. Symphorian Kitare, Advocate drew and filed submission on behalf of the applicant. The respondent did not file a counter affidavit nor did she file submissions in reply. The application therefore proceeded in her absence. In his submission, Mr. Kitare said that, failure by the respondent to file counter affidavit amounts to admission of the allegations in the affidavit. He added that on 14/01/2015 the applicant filed against respondent, a suit at the District Land and Housing Tribunal for Kinondoni (The Tribunaf). That the applicant was claiming for refund of his construction fees for two rooms, commonly known as frames (the suit premises). That on 28/09/2017 the suit was decided in favour of the respondent. That the applicant appealed to the High Court and he was unsuccessful for being time barred. He said on 16/01/2018,the respondent without the court's order invaded and vandalized the applicant's photography equipment in the suit premises. That the respondent rented the suit premises to another person who has commenced business. He said on 23/02/2018 the respondent filed an application for Execution No.85 of 2018 at the Tribunal and that the applicant unsucessfuiiy filed a preliminary objection due to the fact that respondent executed the decree without applying for the court's order that the property be attached. Counsel said that the respondent's act was contrary to section 23 of the Land Disputes Courts (The Land and Housing Tribunal) Regulations, 2003 which requires a decree holder to apply for execution. Counsel added that the applicant is applying to set aside the Execution Order issued on 04/08/2020 and that the grant of the prayer will not deny ownership of the suit premises to the respondent. That the applicant disputes the remaining orders requiring him to pay rent arrears, general damages, and costs since vandaiization by the respondent denied him income to settle the decree. He said the execution order of 14/07/2020 was to the effect that the applicant should pay decretal sum within 14 days which ended on 17/08/2020. That the fact that applicant's business was vandalized on 16/01/2018 means that the applicant was denied 3 years and 8 months to operate his business. Counsel prayed for the application to be granted. The main Issue for consideration Is whether this application has merit. Mr. KItare said that since the respondent did not file a counter affidavit then It was apparent that she conceded to the application. I think this Is a misconception because the applicant |s required to prove his application accordingly. Supervisory and revlslonary powers of this court are found under section 43(1)(a)(b) and (2) of the Land Disputes Courts Act CAP 216 RE 2019. The said provision states; ^Xl) In addition to any other powers in that behaif conferred upon the High Court, the High Court: (a)shaii exercise generaipowers ofsupervision over aii District Land and Housing Tribunais and may, at any time, caii for and inspect the records ofsuch tribunai and give directions as it considers necessary in the interests ofjustice, and aii such tribunais shaii compiy with such direction without undue deiay; (b) may in any proceedings determined in the District Land and Housing Tribunaiin the exercise ofits originai, appeiiate or revisionaiJurisdiction, on application being made in that behaifby anyparty or ofits own motion, if it appears that there has been an error material to the merits of the case involving injustice, revise the proceedings and make such decision or order therein as it may think fit (2)In the exercise ofits revisionaijurisdiction, the High Court shaii have aii the powers in the exercise of its appeiiateJurisdiction. From the above provision, the court is empowered on its own motion or upon appiication to caii the record of the Tribunai at any tjme, conduct inspection and give directions if it considers necessary for the ends of justice. Initiaiiy, in Land Appiication No.8 of 2015, the appiicant prayed among other things for declaration that he is the lawful tenant of the suit premises. The respondent raised a counter claim, praying among other orders, for immediate eviction of the appiicant from the suit premises. The applicant's claim was dismissed and the prayers in the counter claim were granted to the extent, that the appiicant vacates the suit premises and hand it over to the respondent. It is therefore apparent that, when the respondent filed the appiication for Execution in Land appiication No.85 of 2018, there was already an order for the appiicant to vacate the suit premises. In this appiication for revision, the applicant is complaining that the respondent did execution prior to application for execution. He even raised it by way of preliminary objection in the application for execution. However,the same was overruled and the application was granted. Now, was there any irregularity in the proceedings for execution which occasioned injustice to the applicant? From the records of the Tribunal, there is no irregularity in the proceedings in respect of the appiication for Execution. Further, I have noted that, even the preliminary objection raised by the applicant did not qualify to be preliminary objection within the ambit of Mukisa Biscuit Manufacturing Company Limited vs. West End Distributors Limited (1969) EA 696. Simply stated once a preliminary is raised it must not attract evidence. Now, in order to establish that execution has been conducted the applicant had to present evidence including photographs; he even called on Tribunal to visit the locus in quo so as to satisfy that execution had been conducted. Obviously, this was not a fit point for preliminary objection not withstanding that the Tribunal ruled on the same. In fact, there was no irregularity that would have occasioned injustice on the part of the applicant. Further it is the law that he who comes for the justice must come with the clean hands. The applicant in Land Application No.8 of 2015, was ordered, among other things, to vacate the suit premises. He did not obey the court's order. In case he was not satisfied with the order, he would have filed an appeal and apply for stay of execution. But he did not appeal meaning that he obviously waived his rights to appeal. In other words, he was satisfied with the decision of the Tribunal. In such a situation, how can the applicant complain of the respondent's re-occupation of her suit premises while he is still occupying part of it unlawfully? He should have dean hands before complaining about the execution. Conclusively, there is nothing like irregularity in the Tribunal's proceedings and no injustice was caused to the applicant. In the result this application for revision is therefore without merit and is hereby dismissed with costs. It is so ordered. OF O V.L. MAKA JUDG c s 08/11/2021