Land Revision No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LAND DIVISION

AT PAR ES SALAAM LAND REVISION No. 11106 OF 2024 fOriginating from ruling of execution in land application No. 213 of 2017 of District Land and housing Tribunal for Bagamoyo at Bagamoyo) RESTUTA FRANK MSONGOLE......................................... APPELLANT

VERSUS MAIKO NGAYA SHOO....... ......................................... RESPONDENT

RULING Date of last Order: 07/10/2024 Date of Ruting: 15/10/2024 LALTAIKA, J., This ruling addresses the application for revision filed by the Applicant, RESTUTA FRANK MSONGOLE, against the execution ordered by the land application No. 213 of 2017 of District Land and housing Tribunal for Bagamoyo at Bagamoyo. Page 1 of 13 When this application was called for mention on 05/09/2024, the Applicant appeared through Mr. Bonaventura Masesa, learned Advocate who also held brief for Counsel for the Respondent having so requested by the Legal Officer Joseph Sakwela. Parties prayed to dispose of the application by way of written submissions. Accordingly, the following schedule was ordered: Applicants written submission in chief to be file on or before 18/09/2024, Respondent's Reply to be filed on or before 1/10/2024, Rejoinder 7/10/2024, Mention for necessary orders to schedule the date of Ruling 7/10/2024 at 10:00. I take this opportunity to register my commendations to the learned Advocates for spotless compliance with the Court order. The next part of this Ruling is a summary of submissions by both parties. Mr. Masesa, Counsel for the Applicant, submitted that it would please the court to adopt the facts contained in the affidavit of Restituta Frank Msongole, which had been filed on 15th May 2024, along with all documents appended thereto, as part of the written submissions in

support of the application for revision. He explained that this was a submission for an application for revision in which the Applicant requested the Honourable Court to call for and Page 2 of 13 examine the records of the execution proceedings that took place at the Bagamoyo District Land and Housing Tribunal. He indicated that this examination was necessary to satisfy the court regarding the correctness, legality, and propriety of the execution order or ruling issued by the Tribunal before the Chairperson, which was allegedly tainted with material irregularities and illegalities. Mr. Masesa provided background information, stating that the Applicant had filed application No. 35 of 2012 at the District Land and Housing Tribunal for Coastal Region at Kibaha against the Respondent and one Mussa Mwimbe for trespassing on her land, which measured two acres out of her four acres. The Applicant had requested the Tribunal to declare her as the rightful owner of the disputed land (two acres), order the eviction of the Respondent from the disputed land, and issue a permanent injunction prohibiting the Respondent from entering or conducting any activity on the disputed land. After hearing both parties, the Tribunal decided in favor of the Applicant, as referenced in Annexure RFM'l attached to the Applicant's affidavit in revision No. 11106 of 2024. He noted that the Respondent,

dissatisfied with the Tribunal's decision, filed land appeal No. 165 of 2015 in the High Court of Tanzania (Land Page 3 of 13 Division) at Dar es Salaam, claiming that the Tribunal had erred in law and fact by deciding that the Applicant was the rightful owner of the disputed land without calling the so-called original owner to testify about how she acquired the land. The Respondent also contended that the Tribunal ruled erroneously by accepting the Applicant's claims against him. After hearing both sides, the High Court granted the appeal, quashed, and set aside the Tribunal's decision and decree, as referenced in Annexure RFM'2 attached to the Applicant's affidavit in revision No. 11106 of 2024. Mr. Masesa explained that following the High Court's decision to quash and set aside the District Land and Housing Tribunal's decision for the Coastal Region at Kibaha, the Respondent filed execution land application No. 213 of 2017 with the District Land and Housing Tribunal for Bagamoyo, claiming a four-acre area instead of the two acres that were in dispute. He expressed surprise that the Tribunal granted the Respondent the right to execute the four-acre area at Kerege village, Bagamoyo district, Coastal region, contrary to the Tribunal's and High Court's decisions, as referenced in Annexure RFM'3 attached to the Applicant's affidavit in revision No. 11106 of 2024. Page 4 of 13 In

his submissions, Mr. Masesa stated that the Applicant had sued the Respondent for trespassing on two of her four acres, which the Respondent alleged he purchased from Mussa Mwimbe for TZS 4,000,000. He emphasized that the Respondent had trespassed on the disputed land, which measured two acres, according to the decision on application No. 35/2012 from the District Land and Housing Tribunal for the Coastal Region at Kibaha. The Applicant claimed that the Respondent purchased the land from Mussa Mwimbe (the second Respondent), who then sold the Respondent two acres. Furthermore, he mentioned that in the Tribunal’s judgment, the Respondent, Michael Ngaya Shoo, stated in his defense that he purchased the disputed land, which was two acres in size, from Mussa Mwimbe in 2009 for TZS 4,000,000. He also noted that a witness supporting the Respondent’s case, Athumani Mbembu, testified that he witnessed the sale agreement and that the land was two acres in size. Mr. Masesa reiterated that the Tribunal had stated that the evidence presented by both parties, as well as the Tribunal's observation of the disputed area, demonstrated that the disputed area was approximately two acres. He highlighted that the Tribunal ruled in favor of the Applicant, Page 5 of 13 asserting that her evidence showed that she owned the disputed area, which was part of her four acres. In the second paragraph of

page 2 of the High Court of Tanzania, Land Division at Dar es Salaam's decision on land appeal No. 165 of 2015, the court had declared that the land in dispute, sold to the Respondent by Mussa Mwimbe, was only two acres. He further mentioned that the court elaborated in the second paragraph of page 4 that the Respondent's land and the Applicant's land were separated by a pathway (road), confirming that the Respondent had never gone beyond his boundary, and that the High Court decision did not add any acres to the land in dispute. He concluded that all records from the District Land and Housing Tribunal for Kibaha's Coastal Region and the High Court of Tanzania (Land Division) in Dar es Salaam, including proceedings and judgments, confirmed that the disputed land was only two acres and not four acres. He emphasized that the Respondent had claimed two acres of land purchased from Mussa Mwimbe, according to the District Land and Housing Tribunal's decision in application No. 35 of 2012 for the Coastal Region at Kibaha, and there was no evidence in the record indicating that the Respondent claimed to own four acres of land. Page 6 of 13 Mr. Masesa expressed the Applicant's shock upon hearing the execution ruling, which involved executing land that was not in dispute, despite the Respondent's awareness that the disputed land was only two acres and not four acres. He maintained that

the Respondent should have executed only the two acres that were the subject of the dispute, which he claimed to have purchased from Mussa Mwimbe. He referenced the case of Mohamed Makata Versus Rukia Mtama; Revision No. 6 of 2022 for the High Court of Tanzania at Tanga, which held that the executing Tribunal had no jurisdiction to overrule the decision of the Tribunal and could not execute beyond the Decree. In conclusion, Mr. Masesa respectfully submitted that the Honourable Court should adopt the approach taken by his Lordship Manyanda J. in the case of Mohamed Makata Versus Rukia Mtama; Revision No. 6 of 2022, where he referred the Court of Appeal to the case of Hassan Twaib Ngonyani versus Tazma Pipeline Limited; Civil Appeal No. 201 of 2018. He quoted the last paragraph of page 8, in which it was stated that "On this position of the law, it was held that the executing court has no jurisdiction to execute what is beyond the Decree." Page 7 of 13 He urged the Honourable Court to call for and examine the records of the execution proceedings that took place at the District Land and Housing Tribunal for Bagamoyo, so as to satisfy itself as to the correctness, legality, and propriety of the execution order or ruling, which he asserted was tainted with material irregularities and illegalities. Mr. Masesa requested that the Honourable Court quash and set aside the execution

orders or ruling, along with costs of the application and any other orders that the Honourable Court may deem just to grant. Mr. Mafie, Counsel for the Respondent, addressed the Court respectfully, noting that he had carefully reviewed the submissions made by the Applicant's Counsel regarding the application for revision and wished to provide a response to oppose them. He urged the Honourable Court to adopt the facts included in the Respondents counter affidavit sworn by Maiko Ngaya Shoo, which was filed on 12th June 2024, as part of his submission. He explained that the Applicant had filed a revision in the Court, challenging the execution on the grounds that it was excessive and exceeded what had been ordered. The Applicant relied on the evidence presented during the hearing of the main case at the District Land and Housing Tribunal of Kibaha, claiming that the dispute involved two acres out of four acres. Page 8 of 13 Mr. Mafie contended that the Applicant had misinterpreted the judgment and decree of the Court, emphasizing that the record was clear. He pointed out that the application, numbered 35 of 2012, which was the subject of the execution and this revision, explicitly stated in paragraph 6 that the Applicant was the rightful owner of four acres of the disputed land purchased from Rukia Mshamu, who was the mother of the second Respondent, since 1998. He further noted

that in 2009, the first Respondent had illegally and without justification purchased the Applicant's land from the second Respondent. He asserted that it is a well-established principle of law that parties are bound by their pleadings and that a Plaintiff must plead and later prove their case in order to succeed. He referenced the case of John Mwombeki Byombalirwa vs. Agency Maritime International, where the Court held that to decide whether a plaint discloses a cause of action, the Court should not delve deeply into the written statement of defense, but should ascertain a cause of action solely by examining the Plaint. From these facts, Mr. Mafie argued that the so-called disputed land was indeed four acres, as accurately stated in the plaint/application form filed in the Tribunal. Page 9 of 13 He then distinguished the case of Mohamed Makata Versus Rukia Mtama, which the Applicant cited in her submission, noting that in that case, the Court was asked to quash the decision of the District Land and Housing Tribunal for overruling the decision of the Ward Tribunal during the execution proceedings. He clarified that this was not the issue at hand in the current matter. Mr. Mafie reiterated that pleadings form the foundation of claims and that parties are bound by their pleadings. Therefore, any evidence presented that contradicted what was stated in the pleadings should be

disregarded. He concluded that, based on the application form, the disputed land consisted of four acres, and the allegations made by the Applicant were merely an afterthought and should be dismissed. In light of his brief submissions, he respectfully requested the Honourable Court to dismiss the application for revision with costs, stating that the executing Tribunal had acted promptly according to the decree of the Court. I have dispassionately considered the rival submissions. Apparently, the Applicant challenged the execution on the grounds that it Page 10 of 13 was excessive and exceeded what was ordered by the Court. The Applicant relied on evidence presented during the main case at the District Land and Housing Tribunal of Kibaha, specifically asserting that the dispute involved two acres out of the claimed four acres. Mr. Mafie, submitted that the Applicant had misconstrued the judgment and decree of the Court, emphasizing the clarity of the record. He referred to the application form (Application No. 35 of 2012) that is the subject of both the execution and the revision. Mr. Mafie quoted paragraph 6 of the application, which asserted that: 1. The Applicant is the rightful owner of four acres of the disputed land purchased from Rukia Mshamu, who is the mother of the 2nd Respondent, since 1998.

2. In 2009, the 1st Respondent illegally and without justification purchased the Applicant's land from the 2nd Respondent. Mr. Mafie stressed the principle that parties are bound by their pleadings, supported by the case of John Mwombeki Byombalirwa vs. Agency Maritime International, where the Court held that for Page 11 of 13 determining whether a plaint discloses a cause of action, the Court should look only at the Plaint. He further distinguished the case cited by the Applicant, Mohamed Makata Versus Rukia Mtama, noting that the circumstances of that case differ significantly from the present matter. He argued that the issues at hand do not relate to the jurisdiction of the Tribunal but rather to the clarity of the pleadings and the evidential basis. Upon consideration of the submissions, the crux of the matter revolves around the interpretation of the pleadings and the substantive claims presented. The principle that parties are bound by their pleadings is well established in Tanzanian law. The Court cannot deviate from the factual basis laid out in the application form and the supporting affidavits. The Applicant’s claim that the disputed land consists of two acres is at odds with the pleadings, which clearly state that the Applicant claims four acres. The Respondent's argument highlights the necessity of adhering to the original claims made in the pleadings, particularly

in determining the cause of action. Page 12 of 13 Considering the above analysis and the clarity of the Respondent's position, it is evident that the Applicant's claims of excessiveness in the execution lack a substantive basis. The execution ordered by the Tribunal adheres to the decree as presented in the pleadings. I find merit in the Respondent's submissions. Consequently, I hereby dismiss the application for revision. I make no order as to costs. It is so ordered.

E E LALTAIKA Court Judgment delivered this 15th day of October 2024 in the presence of the Mr. Bonaventure Masesa Counsel for the Appellant and holding brief for Mr. Paul Mafie, Counsel for the Respondent. E.I. LALTAIKA £ JUDGE Page 13 of 13