land appeal no

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM LAND APPEAL NO. 24277 OF 2024 (Originating From Misc. Application No. 57/2022, Mkuranga District Land and Housing Tribunal) SALUM MAHEGE.....................................................................................APPELLANT

VERSUS BI. GRACE DIBIBI........................................................................ 1st RESPONDENT BI. OMBENI DIBIBI.................. .............. ................................ ...2nd RESPONDENT

JUDGMENT 1st to 28th November, 2024 E.B. LU VAN DA, J The Appellant named above is aggrieved by the decision of the Tribunal in the above captioned matter when in exercise of its jurisdiction of executing award dated 12/03/2020 from the Vikindu Ward Tribunal. In the memorandum of appeal, the Appellant grounded that: One, the Honorable Chairperson erred in law by giving a decision with new orders and decrees against Judgment Debtor in the favour of the Decree Holder while it was acting only as executing court; Two, the Honorable Chairperson erred in law and fact by giving orders and decision of which were not part of pleading of the Decree Holders' application for execution; Three, the Honorable Chairperson erred in law and fact appointing Mnaya & Co. Ltd to act on 1 supervision of boundaries re-establishment, something contrary to the decree which is being executed and also against the Applicants' application for execution; Four, the Honorable Chairperson erred in law and fact appointing Mnaya & Co. Ltd to undertake valuation on the value of the destroyed plantation (sic), covered natural well and investigate the properties of the Judgement Debtor (the Appellant herein) and attach and sell the same in order to compensate the Decree Holders losses. Mr. Mohamed Maulid Nokolage learned Advocate for the Appellant combined ground number one and two, he submitted that in Land Case

No. 4 of 2020 the Vikindi Ward Tribunal decided in favour of the Respondents and gave orders which were to be executed by the District Tribunal for Mkuranga. He submitted that the Respondents in their application for execution prayed for the orders: that the land with banana and cassava as well as natural well should be replaced back to the Respondents' land as it was before; the boundaries between the Appellant and Respondents be ascertained under the supervision of the local government; the parties should establish permanent boundaries. He submitted that the Tribunal gave the decision as to be executed, citing the impugned order. He submitted that there are irregularities in the decision of the District Tribunal for explanation that it ordered the properties of the Appellant to be attached and sold to compensate the Respondents, argued it is something 2 which was not among the orders to be executed by the District Tribunal. He submitted that the District Tribunal made new orders not part of the orders prayed by the Respondents. He submitted that issuance of new orders at execution is fatal that renders all the proceedings and orders in respect of the said execution to be declared null and void, citing Hassan Twalib Ngonyani vs Tazama Pipe Line Limited, Civil Appeal No. 201 of 2018, CAT. For ground number three and four submitted in replica to the above argument that the

District Tribunal ordered attachment of the Appellant's properties so as to compensate the Respondents on the purported banana and cassava which were destroyed and also as compensation of natural well which was covered, in execution of the said orders which were not subject to the application for execution and decree which was being executed. He submitted that the District Tribunal also appointed Court Broker styled Dalali Mnaya & Co. Ltd to undertake valuation of the said destroyed plantations (sic) and also covered (sic) well despite of the fact that the said Court Broker is not registered valuer recognized by law on conducting valuation of both plantation (sic) or land. He faulted the Tribunal for making an order for compensation as well as attachment of the Appellant's properties. In reply, Mr. Kung'e N. Wabeya learned Counsel for Respondents, prefaced that having been instructed by the Respondents to represent them and upon 3 being supplied with the proceedings, judgment and decree of both courts below, and having been served with the Appellant's submission in support of appeal, they have gone through the records, grounds of appeal and the supporting submission therein and they have observed that the appeal have merit. On that they, support the appeal on the four grounds based on the records of proceedings and especially on the decree of the Ward Tribunal for Vikindu

which is the subject of the execution proceedings resulting to this appeal. He submitted that the decree of the trial tribunal, Vikindu Ward Tribunal, is very clear, there is no orders as to the attachment and sell of the Appellant's properties or even there is no order of appointing Broker. He submitted that orders issued by the executing tribunal are quite different from those contained in the decree subject for execution, argued that they join hands with the Appellant that the appeal be allowed to the extent that the orders of the executing tribunal be quashed and the court proceed to order the case file be remitted back to the District Land and Housing Tribunal for Mkuranga for the execution to commence afresh before another Chairperson. He proposed for the Court to order each party to bear his own costs. Going by the records of the lower Tribunals, in particular the judgment of the Vikindu Ward Tribunal, made the following decision/verdict, 'HUKUMU 4 Kuanzia tarehe hii ya ieo baraza Unaamuru kuwa sehemu Hiyopandwa migomba na mihogo na sehemu Hichokuwa kisima cha asiH kirud/shwe kweneye shamba la Bi Dibibi kama iiivyokuwa awaii Baraza pia Unaamuru mpaka wa shamba baina ya Bi. Dibibi na Bw. Saium Mahege unyooshwe chini ya usimamizi na uongozi wa serikaii ya Kijiji. Wote kwa pamoja waweke aiama za kudumu kwenye mipaka yao Hi kuepusha mgogoro usijirudie' In the application for

execution filed at the Tribunal on 4/4/2022, the Respondents sought assistance of the executing Tribunal to implement the above orders as decreed, by way of appointing the Tribunal Broker to establish and mark the boundaries between the parties. In turn, on 7/06/2024 the learned Chairperson made the following ruling, Baada ya maombi haya kusajiiiwa na Mshinda Tuzo wa 2 kueieza maombi yake kuhusu mazao (mihogo na migomba) na kisima, ninafikiri wanahaki ya kupata pesa toka kwa Mshindwa Tuzo Hi ndiyo ikafanye hiyo kazi ya kupanda mihogo na migomba na pia kuchimba kisima. Kuhusu mipaka, itawekwa na daiaii. Daiaii Mnaya & Co. Ltdanapewa kazi ya: 1. Kutathmini thamani ya mihogo na migomba Hiyokatwa.

2. Kuchunguza maii ya Mshindwa Tuzo yenye thamani kuiingana na uharibifu wa mazao katika (1) hapo juu. Maii 5 hii itauzwa. Pesa ikipatikana itafidia hasara Hiyotokana na ukataji huo.

3. Kisima kiiichoharibiwa kifanyiwe tathmini. Mshindwa Tuzo a/ipe kwa ajiii ya uharibifu huo.

4. Daiaii atachunguza ma/i ya mshindwa tuzo pia, ikamatwe iuzwe Hi kufidia hasara ya uharibifu wa kisima.

5. Mipaka itawekwa na dadaii Mnaya & Co. Ltd, ambayo baada ya kazi zote atafeta taarifa (report) hapa barazani' The orders mounted by the learned Chairman to be executed formed a total departure as to what was decreed and directed by the Vikindu Ward Tribunal. What the learned Chairperson did, cannot be said it amounted to interpretating the award by the Vikindu Ward Tribunal, rather it come up with a new award. This because the above order had the effect of overhauling and repealing the entire award by the Vikindu Ward Tribunal, thereby replacing with a strange award subject for execution. In the persuasive case of Maharaj Kumar Mahmud Hasan Khan vs Moti Lal Bankers on July, 1960, AIR, it was held, 7 hold it to be a correct proposition of law that a Court executing a decree is bound by the terms of that decree and cannot go behind them. It is equally true as a general proposition that such Court can neither add to such a decree nor vary its terms' 6 To my respective view, an application for execution is limited to seek the assistance of court or tribunal to execute what was granted in the judgment or decreed upon. There is no window for the Decree Holder to insert strange reliefs which were neither sought or pleaded, nor subject for adjudication and not granted or decreed in her favour. Therefore it was wrong for the Respondents to seek assistance of the executing Tribunal to

implement the award of the Vikindu Ward Tribunal, by way of appointing the Tribunal Broker to establish and mark the boundaries between the parties. This is because the award was clear on that aspect that establishment of boundaries ought to be done by the Village Council. Therefore, the Tribunal slept into an error to entertain a request by the Respondent. It be known that, the executing court/tribunal do not enjoy an adjudicative role, rather its mandate is strictly to execute what was judged and decreed upon. Arguably, the executing Tribunal may venture into making some construction of the decree here and there. However, such construction is limited to interpreting or construing a decree in view of giving clarity to its terms but cannot go beyond what was adjudged in the judgement, creating new decree, or materially altering the terms of the decree, going behind the decree. 7 Mulla, The Code of Civil Procedure, Seventeenth Edition, Volume I, at page 659 to 660, commented, I quote at length, If a decree is free from ambiguity, the court of execution is bound to execute it whether it be right or wrong. But it cannot, under the guise of interpretation, make a new decree for the parties. Altering the terms of the decree must be clearly understood in contrast of construing a decree or interpreting a decree or giving clarity to its terms and conditions. In the garb of the latter,

the court cannot create a new decree which is neither intended nor passed by the court of competent jurisdiction. Executing court can provide clarity, interpret or construe the decree, by keeping the decree as passed by the court of the competent jurisdiction intact and undisturbed. While exercising its jurisdiction, if the executing court, in the guise of these ingredients, materially alters the terms and conditions of the decree, to the prejudice of any of the parties to the decree, which ought to have, if at aii, fallen in the domain of courts of competent jurisdiction, ie appellate or the court that passed the decree, certainly the executing court would outgress its jurisdiction as an executing court. Permitting an executing court to alter the terms of the decree would be opposed to all settled canons of civiljurisprudence. A. decree which has been passed and has not been assailed in the regular appeals which were available to the parties against whom the decree was passed, such party cannot be permitted to abuse the process of law before the executing court to alter 8 the decree, which has attained finality in all aspects. Butthough a court executing a decree cannot go behind the decree, it is quite competent to construe the decree where the terms of the decree are ambiguous, and to ascertain its precise meaning, for, unless this is done, the decree cannot be executed.

There is no question is such a case of the executing court going behind the decree. If, on examination of the nature and contents of the decree, the court finds that is a purely declaratory decree, it must refuse to execute it. If the decree creates a charge on property in which the judgment - debtor had a widow's estate, the executing court has jurisdiction to inquire if the charge continued after the widow's death and if it could be enforced against the property in the hands ofher legal representative. The construction ofa decree must be governed by the pleadings and the judgment. And the court should, if possible, put such a construction upon the decree as would make it in accordance with law. When a particular construction has been put upon a decree in a former execution proceeding, it is not open to the court in a subsequent application to treat that construction as erroneous' In that regard, I fault the orders and directives issued by the executing officer and set it aside. I further direct that in the event the Respondent wish to mount into execution the award by the Vikindu Ward Tribunal, the same should be executed by a different Chairperson. Q The appeal is allowed. No order for costs. 10