paulo werema chacha v japhet philip 3 others 2024 tzhclandd 24 20 february 2024

IN THE HIGH COURT OF TANZANIA \ (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 327 OF 2023 (Arising from the decision of the District Land and Housing Tribunal forTemeke in Misc Land Application No. 218 of 2020)

PAULO WEREMA CHACHA APPELLANT

VERSUS 3APHET PHILIPO 1®^ RESPONDENT M/S MSOLOPA INVESTMENT 2"° RESPONDENT ISHALLA SOLOMON MGHUMBA S"" RESPONDENTT ABDUL HAMZA MUSHI 4^" RESPONDENT

JUDGMENT 07/12/2023 to 20/02/2024 E.B. LUVANDA,J Paulo Werema Chacha the Appellant herein, Is aggrieved by the decision of the Tribunal which refused to attach and sale a motor vehicle registration No. T812 DID Nissan X Trail owned by Ms. Msolopa Investment(Second Respondent), in satisfaction of a decretal amount a sum of Tshs 1,000,000/= only. In the petition of appeal, the Appellant grounded that: One,the Tribunal grossly erred in law for failure to determine the application before it; Two, the Chairperson erred in law and facts by analyzing the judgment which was the subject matter instead of executing decree filed for determination; Three, the 1 Chairperson erred In law and fact by contravening regulation 23(4) of the Land Disputes (the District Land and Housing Tribunal) Regulations, 2003 and thus Injustlfled (sic) the Appellant herein. The Appellant submitted all three grounds jointly. He submitted that It Is clear that the application was for execution of Tshs 1,000,000/= He submitted that the Respondents were summoned to show cause but never filed an application to oppose or to object the execution. He submitted that the Tribunal allowed the Respondent to object the execution without proper application, no sworn affidavit to justify the grounds raised In the argument by the Second Respondent but still the Tribunal entertained the same. He submitted that the Tribunal

lacked jurisdiction to examine the judgment In Land Application No. 188/2010 and modify It, arguing It was functus offlcio, citing Malik HassanI Suleiman vs. SMZ[2005]TLR 236. He submitted that the Fourth Respondent did not object the execution. He submitted that the Tribunal was not an appellate court to determine the merit of the judgment and proceedings but rather to strictly limit to the execution. He cited regulation 23(4) of Regulation 2003 (supra). In response, Mr. Mutakyamlrwwa Philemon learned Counsel for Respondents, cited section 38(1) of the Civil Procedure Code, -Cap 33 R.E. 2019, for an argument that the Tribunal has jurisdiction to determine all questions arising from execution. He submitted that the Respondents after being served with summons to show cause, they appeared in court (sic, tribunal) and verbally informed the court (sic, tribunal) to the effect, the Appellant received a sum of Tshs 600,000/= from the Second Respondent and a balance of Tshs 400,000/= was with regard to Application No. 218/2020 which the Appellant intentionally failed to prosecute it as a result was struck out. He submitted that irrespective of receiving a sum of Tshs 600,000/= the Appellant claimed again a sum of Tshs 1,000,000/=, arguing the Appellants ought to go to equity with clean hands. He submitted that the executing court had mandate under the law to determine ail questions

arising from execution, argued the appeal being misconceived. On rejoinder, the Appellant insisted that before the Tribunal was an execution proceeding of unchallenged decree, argued the Tribunal ought to have acted upon the same diligently pursuant to the law. He submitted that the Tribunal lacked jurisdiction to analyze non existing records of Application No. 188/2010 and interpret the judgment thereof in consideration for dismissing the execution filed before the Tribunal. He submitted that section 38(10) of Cap 33(supra) is irrelevant arguing it refers to the decree to be executed and nothing like considering the judgment of the case is mentioned in the entire provision. To my opinion, this appeal has been lodged without a sufficient ground of complaint. According to the application for execution which was filed by the Appellant at the Tribunal on 12/10/2020, depict the amount sought to be executed is Tshs 1,000,000/= and the mode or manner under which it ought to be executed, was by way of attachment and sale of a motor vehicle registration number T812DLD Nissan X Trail, owned by the Second Respondent. On 27/05/2020 when the Appellant appeared before the Tribunal, informed the Tribunal that, I quote, "The matter comes for mention. We are at the execution of the decision ofthe High Court and this Tribunal. He has paid me Tshs 600,000. He stiii owes me 400,000/=" Thereafter

the Tribunal issued summons to show cause to the Judgment Debtors(Respondents) who appeared and a hearing was mounted to that effect and eventually the Tribunal delivered its ruling. In the impugned ruling, the Tribunal ruled inter alia that the Appellant received a sum of Tshs 600,000/= out of a decretal sum of Tshs 1,000,000/= and a remained balance of Tshs 400,000/= which the Applicant neglected to collect it. The Tribunal declined to order sale of a motor vehicle T 812 DID Nissan XTraii. Now as to why this appeal was lodged, prosecuted and argued by the Attorney for Appellant to defend a balance of Tshs 400,000/= which we are told Is hanging some where,the answer is simple and straight forward that it was done in bad faith and out of empty promises and hope invariably by a lawyer who mislead his client that there is something more to earn or yield out of a balance of 400,000/= In the case of Efficient Internationai Freight Ltd & Another vs. Office De The Du Burundi, unfortunate a full citation was not availed by the learned Counsel for Respondent who cited it, where Justice Msofe, JA had this to say, 'We shall therefore In future not look kindly to applications for review which In reality only amounts to trying one's luck. This approach has the tendency of unnecessarily taking up the Court's valuable time and even raising false hopes In the minds ofclients. Counsel have

therefore a duty to refrain from doing the above two things. They should have the courage and honesty to tell their clients the true position. Unless of course the Intention Is to buy time which In our view is worse" At any rate a balance of Tshs 400,000 could not warranty attachment and sale of a motorvehicle T812 OLD Nissan X Trail, no matter how jalopy or old its, or even if it is grounded or a scrap, stili it cannot be liable for attachment and sale for satisfaction of a peanut amount of less than half million Tanzania Shillings. The Appellant is advised to go back to the Tribunal to seek assistance for payment of a sum of Tshs 400,000/= The appeal is dismissed. I have declined to impose costs. O E. B. LUVANDA ZP V-

JDGE 5!1 ★ 20/ *2/2024 Judgment delivered In the presence jbf the Appellant, Fourth Respondent and In the absence of the First, Second and third Respondent. 0/^ E. B. mVANDA j^DGE :y>t. -'.iJ: 20/02/2024 u !