LAND APPEAL NO 11210 OF 2024 SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 11210 OF 2024 (Appeal from the District Land and Housing Tribunal of liaia in Misc. Land Application No. 34/2023 and Land Application No. 237/2020). SALUMU IBRAHIM MRUTU....................................................................... 1stAPPELLANT MUBARAKA LIPUMBA............................................................................... 2ndAPPELLANT BAKARI MENGI........................................................................................ 3rdAPPELLANT IDDI MZEE................................................................................................ 4thAPPELLANT MUSSA MPOTO.......................................................................................... 5thAPPELLANT JUMA MOHAMEDI MNONDO..................................................................... 6thAPPELLANT VERSUS 1. HELLEN AMANIEL MRUTU & AMON STEPHEN MRUTU (The administrator and administratrix of the estate of the late AMINIEL STEPHEN MRUTU........................... 2. KABANGO ENTERPRISES........................................ [ RESPONDENTS JUDGMENT 25/7/2024 & 23/8/2024 A, MSAFIRI, J. The appellants herein above being dissatisfied with the decision of the District Land and Housing Tribunal of Ilala (the District Tribunal) in Misc. Application No. 34 of 2023 have lodged this appeal advancing three (3) grounds of appeal as follows; M- 1 1. That, the trial Chairman erred in law and facts by failure to analyze and put into consideration the objections stated by the appellants in proceedings of Misc. Land Application No. 34/2023 which was Application for execution. 2. That, the trial Chairman erred in law and facts by failure to grant the prayer of extension of time to file a proper Application for stay of execution upon the said Misc. Land Application No. 34/2023 which was application for execution. 3. That, the trial Chairman erred in law and facts by delivering the ruling which contained procedural irregularities hence resulting to the execution order which was unreasonable and unjustifiable. The appellants prays to this court to quash the whole of the Ruling and Drawn order in Misc. Land Application No. 34/2023. The appeal was heard by way of written submissions and the submissions in chief in support of the appeal and rejoinder was drawn and filed by Tully Kaundime, learned advocate while the reply submission by the respondent was drawn and filed by Mr. Richard Mathias Kinawari, learned advocate. I have well considered the submissions by the parties through their counsels along with the cited authorities but I have no intention of reproducing the said submissions herein but will look into the same while determining the grounds of appeal. jlfI I „. 2 The origin of this appeal is Application No. 237 of 2020 which was instituted by the now respondents at the District Tribunal against the now six (6) appellants and other 16 people who are not parties to this appeal. The said Application was heard exparte and the exparte judgment was delivered on 29/7/2022. The said judgment was delivered in favour of the now the 1st respondents who thereafter applied for execution in Misc. Application No. 34/2023. The application was granted and the Tribunal appointed the 2nd respondent for execution of the decree. Being dissatisfied by the execution decision and orders, the appellants have filed the instant appeal. In the instant appeal, the appellants claims that they raised objections during the hearing of the application for execution but they were disregarded by the Tribunal. On the grounds of appeal, the first ground is that the Tribunal Chairman erred by failure to analyze and put into consideration the objections stated by the appellants in the proceedings of Misc. Application No. 34/2023 which was application for execution. Ms Kaimdime, counsel for the appellants stated that the counsel for the jon where she raised appellants appeared in the hearing • *• t-hP pxecution to the effect that, first three grounds of objection against the execut 3 To determine this ground of appeal, I had to go through the proceedings of the Tribunal which guide this court as to what transpired during the hearing of the application for execution. The proceedings shows that the appellants were summoned to show cause as to why the decree holders should not execute the decree. The appellants (then the respondents) were represented by Ms Kaundime while the decree holders (applicants) were represented by Mr Kinawari. The proceedings shows that Ms Kaundime raised only one ground of objection that the execution should not be effected as the appellants have lodged an appeal at the High Court before Judge Msafiri. Ms Kaundime argued that the decree should be stayed pending the hearing and determination of appeal in the High Court. Mr Kinawari contested the objection raised by Ms Kaundime and submitted that the appeal is not a bar to the execution and that the respondents have not instituted an application for stay of execution. I have read the whole of the proceedings and I have not seen any other objection raised by Ms Kaundime beside the one which was determined by the trial Chairman that there is a pending appeal before the High Court. In her submission before the Tribunal, Ms Kinawari submitted as follows: 5 " Mheshimiwa sisi hatupo tayari kwa sababu waombaji wamekata Rufaa Na. 8069/2024 mbele ya Jaji Msafiri, na tumeshawaserve upande wa pili, tunaomba kusitisha utekeiezaji kusubiri rufaa " As I have observed earlier, the other two grounds of objection which the counsel for the appellants claimed to have raised and which were not considered by the Tribunal are not reflected in the proceedings. Since the counsel for the appellant opted to object the application for execution orally in lieu of filing an affidavit to show cause, this court has to rely on Ms Kaundime's oral submissions before the Tribunal and in the said oral submissions, the counsel for the appellants submitted on only one ground and not three grounds as she has submitted in in the instant appeal. It is my finding that the appellants raised only one objection during the proceedings of application for execution which was well considered by executing Tribunal in its decision as seen at pages 1 and 2 of the said decision. On the second ground of appeal, the appellants claimed that the trial Chairman erred by failure to grant prayer of extension of time to file a proper Application for stay of execution. In this ground, Ms Kaundime submitted that the appellants put the objection in application for execution with an intention to file the proper 6 application for stay of execution and that the evidence shows that the counsel for the appellants appeared for the first time in the proceedings of Application No. 34/2023 and prayed for a short time so that the appellants can lodge their application for stay of execution as they have strong grounds. The counsel for the appellants claimed that the trial Tribunal refused to grant the said prayer unreasonably. That, the act of trial Tribunal to deny the appellants to file a proper application for stay of execution was unconstitutional as the appellants have a right to be heard. In reply, Mr Kinawari contended the appellants'claims and submitted that the appellants through their advocate have never prayed for extension of time to file a proper application for stay of execution. That the executing Tribunal only determined the application for execution. In rejoinder, Ms Kaundime maintained her submissions in chief and insisted that the evidence on record shows that the counsel for the appellants appeared for the first time in the application for execution and upon her appearance she asked the tribunal for the necessary orders which include among other things the filing of the intended application for the stay of execution. In this ground, I have again revisited the proceedings to satisfy myself on the claims by the counsel for the appellants that she prayed for the time < 7 to file proper application for stay of execution but was refused by the trial Tribunal. This is a very serious claim against the trial Tribunal since the appellants laments that their right to be heard was denied. However, these claims by the appellants are not reflected in the proceedings. The counsel has maintained that the evidence shows that she prayed to file the said intended application but was refused. She did not say which evidence she is relying upon to justify her serious allegations. It is in the proceedings that the now respondents filed an application for stay of execution before the District Tribunal for Ilala. It was Application No. 34/2023. In reply, the now appellants filed a Notice of preliminary objection by which they raised two grounds that first, the Tribunal has no jurisdiction to entertain the application for execution of which the decree holder has altered the decree. And second, that the application for stay of execution was incompetent for being sought to execute the decree against 20 respondents only. The said preliminary objections were heard by way of written submissions as seen in the Tribunal records, and the Tribunal overruled both objections. After that the application for execution was heard orally on merit whereby both parties were given chance to be heard. Therefore what is in the proceedings contradict the serious allegations by the counsel for the appellants that she prayed to file for stay for execution- 8 and was denied. The counsel did not say even specific dates which she prayed for stay of execution and was rejected. In addition, one does not pray orally to file for stay of execution or even extension of time to file for stay of execution. I believe an aggrieved or concerned party should follow the laid down procedures and institute formally the specific application one intends to file. In this saga, the counsel for the appellants did not inform this court whether she filed formally the application for stay of execution and was denied by the Tribunal. If the appellants was able to file a Notice of preliminary objections to contest the application for stay of execution, then nothing could have stopped them from filing the formal application for stay of execution. I find the claims by the counsel for the appellants to be baseless and misconceived. The third ground is that the Tribunal erred by delivering the ruling which contained procedural irregularities hence resulting to the execution order which was unreasonable and unjustifiable. Arguing on this ground, Ms Kaundime submitted that it is a matter of procedure that upon objections raised by the appellants counsel, the duty of the Tribunal was to rule for or against the said objections unlike in the present matter where the trial Chairman rule against the appellants 9 objections and at the same date of the ruling of objections, appoint the tribunal Broker to proceed with the execution without haring of the said execution. The counsel added that the Tribunal failed to state how the execution will be conducted, where it will be conducted and in which manner it will be conducted. Replying on the third ground, Mr Kinawari briefly submitted that the parties in the matter have appeared before the Tribunal several times even raised preliminary objection. That the Tribunal heard the application on merit since there was no application for stay of execution. In rejoinder, Ms Kaundime reiterated her submission in chief and added that the procedure governed by Regulation 23(3) (4) and (5) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations,2003 was violated. I have read the provisions of Regulation 23 and I have failed to see where the procedures of execution were violated by the Tribunal. By the time the application for execution was heard and the appellants were summoned to show cause, no any application for stay of execution has been filed by the judgment debtors. After the prescribed time has passed and there was no any application for stay of execution, the Trial Chairman io moved on to make execution orders as he thinks fit as provided under sub regulation (4). Under sub regulation (5), the Chairman heard the objections from the judgment debtors and considered them in his decision. The provisions of Regulation 23 does not require the executing Tribunal to state how and where the execution is to be conducted but it rather state that the Chairman shall make the execution orders as he thinks fit. By this analysis, I find all the claims raised in the grounds of appeal by the appellants to be misconceived and merely baseless claims. In upshot, I find the entire appeal to have no merit and I dismiss it with costs. It is so ordered. JUDGE 23/8/2024 ii