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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA (AMENDED) APPLICATION FOR REVISION NO. 28648 OF 2023 (From an Order/Decree given by Hon Munzerere – Chairman of the District Land and Housing Tribunal for Mbeya dated 23rd October 2023, arising from Decision and Decree in Land Application No. 130 of 2012 of the District Land and Housing Tribunal Mbeya dated 23rd February 2015) PIUS MWAITUKA……………………………………………..…1ST APPLICANT NGWISA MWAKYANJALA……………………...………………2ND APPLICANT VERSUS NDIGWAKE KAJEBA (Holding Power of Attorney of Emmanuel Mathias Administrator of the Estate of Mathias Methusela Majinge)……………………………………………….……..1st RESPONDENT ELESI MAJINGE (Administrator of the Estate of Majinge Metusela Daudi)………………………..………….2ND RESPONDENT RULING Date: 22 August 2024 & 25 October 2024 SINDA, J.: The applicants, Pius Mwaituka and Ngwisa Mwakyanjala, brought this application before this court, so it may call for records of the District Land and Housing Tribunal for Mbeya (the DLHT) in Land Application No. 130 of 1 2012 dated 23 October 2023 by Hon. Munzerere – Chairman. In order to revise and examine the correctness, legality and properly of the proceedings and Order. On the ground that the Hon. Chairman erred in law and facts to contradict with a decree dated 23 February 2015 given by Hon. Hatson – Chairman. The application is supported by an affidavit signed by both the applicants. The hearing of the application was way by oral submissions. The applicants were represented by Mr. Pacience Maumba, learned counsel. The respondents were unrepresented. During his submission in chief, Mr. Maumba prayed to adopt the affidavit of the applicants. That, in the DLHT the application was brought by the first respondent, who claimed that the land bought by the applicants belonged to her. The applicants stated that they bought the land from the second respondent. In that suit, the first respondent emerged victorious. Hon. Hatson – Chairman gave the following orders to be complied by the second respondent that: 1. Firstly, the second respondent to pay all the costs of the suit; 2 2. Secondly, sales money to be returned to the applicants plus interest of 7% per year; and 3. Lastly, the second respondent to find a valuer to value the improvements on the disputed land. That, to date these orders have not been implemented. He added that on 23 October 2023, the Chairman of the Tribunal Mbeya called the applicants and ordered them to find a government valuer to value the disputed land within 14 days. He also ordered the applicants to demolish their houses within 14 days. Mr. Maumba was of the view that the Chairman of the DLHT had no power to issue these orders on 23 October 2023. That the said orders were to be issued by the chairman that heard the case. That, by giving such orders, he went against the decision of a fellow chairman with the same jurisdiction. As the matter is functus officio. He further submitted that it is the High Court that can revise the decision of the DLHT. In support, he cited the cases of Kamundi vs R 1973, East Africa Page 540, and that of Mohamed Enterprises Mohamed Limited vs Masoud Mohamed Nasser, Civil Application No. 33 of 2012 Court of 3 Appeal at Dar es Salaam. It was Mr. Maumba’s argument that the orders issued on 23 October 2023 prejudiced the applicants and they are a nullity. In his reply submission, Ndigwake Kajeba – the first respondent argued that the case was decided in 2015. The applicants appealed and lost. She added, that every time the first respondent wanted to execute the orders. She was told that the applicants filed for an appeal out of time. She waited for the appeal which was decided against the favour of the applicants. Thereafter, the first respondent went back to the DLHT for execution. The chairman after reviewing the initial case, he gave orders for execution as stated by Mr. Maumba in his submission in chief. The first applicant prayed to be given two months so as to demolish the property, but to no avail. After none compliance to the orders of the DLHT, the applicant, filed for revision in this Honourable court. On her part, the second respondent Elesi Majinge argued that she is the administratrix of the estate of their late father Methusela Majinge Daudi. That, the first respondent filed a case after the second respondent together with her relative sold the land to the first applicant. She added the land belonged to their father and not the first respondent. 4 That the second respondent prayed to the DLHT to visit locus in quo, but the same was not granted. She added that the first respondent went to the DLHT without going first to the ward tribunal. Eventually, the first respondent won the case but without providing evidence in support of her claims. She further stated that in the High Court it was never decided whether they won or lost. In conclusion, the second respondent stated that while at the Primary Court, first respondent stated to have no land. Thus it is unclear were these claims emanate from. In his short rejoinder, Mr. Maumba stated not to be in dispute with the decision of the DLHT. He stated that they dispute the decree since the orders are contrary to the ones given by the fellow chairman. I have gone through the submissions, case laws and records of the DLHT. As explained in the submissions, the matter initially began at the DLHT in Application No. 130 of 2012 before Hon. C. Hatson, where the first respondent was the victor. The second respondent herein unsuccessfully appealed at the High Court before Hon. Levira, J. The matter was taken back to the DLHT for execution. It was before Hon. T. Munzerere, bearing the same case number, Application No. 130 of 2012. 5 When the first chairman decided the matter, he ordered and I quote: THIS TRIBUNAL DOTH HEREBY ORDER THAT So the land belongs to the late Mathias Majinge and his family, the sale was illegal and same is nullified. The saler to return the purchase money to the 4th and 5th Respondents, the money to attract Court interest at 7% year from the date of this suit till payment in full and they will also to pay the purchaser the costs used to develop the same once is valuated by the Government valuer and costs of valuation to be incurred by the seller of the land who mislead purchaser on the true status of the disputed land. The 1st Respondent to pay costs of the suit to the applicant and the 4th and 5th Respondents. During execution however, Hon. T. Munzerere ordered among other things that the applicants and second respondent to find a government valuer to value the houses of the applicants within 14 days. He also ordered the applicants to demolish their houses within 14 days. In the case of Mohamed Enterprises (T) Limited vs Masoud Mohamed Nasser (Supra), the Court of Appeal had this to say: “Once judgment and decree are issued by a given court, judges (or magistrates) of that court become “functus officio” in so far as that matter is concerned” 6 I believe the above provision extends to most, if not all adjudicating bodies including the DLHT. On the foregoing observation, I agree with the arguments by Mr. Maumba. That during execution, the Hon. Chairman Muzerere should not have introduced orders which were not given when the matter was first decided. This would have been an acceptable scenario if the High Court when the parties went for appeal had ordered a trial denovo. But in this matter, the High Court found the appeal with no merit and therefore the decree given by the DLHT prior the appeal should persist. The error subject matter to this application, prejudiced the applicants as they are bonafide purchasers. Having bought the said land from the second respondent. Such an error cannot be resolved under Section 96 of the Civil Procedure Code [Cap 33 R.E 2019], that provides: "96- Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the court either of its own motion or on application of any of the parties. " In the premise, and after having revised the records of the DLHT. I find merit on the application. I proceed to nullify the orders and decree issued on 23 7 October 2023 by Hon. Munzerere. As the mistake was done by the DLHT, there is no order as to costs. It is so ordered. DATED at MBEYA on this 25 day of October 2024. A. A. SINDA JUDGE 8