Sinzo Kushoka Ruling

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA LAND APPEAL NO. 72 OF 2023 (Arising from Misc. Land Application No. 49/2022 at Shinyanga District and Housing Tribunal, Originating from Land Case No.02/2015 at Ibinzamata Ward Tribunal). SINZO KUSHOKA CHABA………………………………..….…..…..….....APPELLANT VERSUS CONSTANSIA NICHORAUS KANOGA………………………….…….. RESPONDENT (Administrix of the Estate of the Estate of the late NICOLAS KASANZU) RULING Date of Last Order 30.08.2024 Date of Judgment: 06.09.2024 MWAKAHESYA, J.: The appellant, Sinzo Kushoka Chaba, is appealing against the decision of the District Land and Housing Tribunal for Shinyanga District (the DLHT) in Miscellaneous Land Application No. 49 of 2022. The said application was an application for execution of the Ibinzamata Ward Tribunal (the Tribunal) in Land Case No. 02 of 2015. At the DLHT the appellant was alleging that there was no decision of the Tribunal that was sought to be executed. This is apparent in the ruling of the DLHT. The DLHT was however, of a different view and what can be 1 garnered from the aforementioned ruling is that, in the DLHT’s eyes the parties were at loggerheads in respect of two adjacent plots, i.e., the respondent (erstwhile applicant) alleging that his Plot No. 128 Block “Y” was encroached by the appellant’s (erstwhile respondent) who was the owner of Plot No. 125 Block “Y”. It was the DLHT’s view that the appellant had, before the Tribunal, confessed to the said encroachment and that he had agreed (before the Tribunal) to demolish his offending structure on or before 31.03.2015. The DLHT went further to note that, the appellant’s act of denying the existence of the matter before the Tribunal was a mere afterthought, and even if the alleged decision of the Tribunal was obtained through fraud or without jurisdiction the same was legal in the eyes of the law unless it was reversed by a higher court. The DLHT citing the High Court’s decision in Zullat Said v. Isack Issa and other, Civil Reference No. 2 of 1997, HC- Bukoba (unreported) to bolster its position. The DLHT went further to deliberate that, the appellant was reneging on his promise made to the Tribunal and that he was also challenging the survey done by the Shinyanga Municipal surveyors, while it was clear, the 2 DLHT having visited the locus in quo, that the appellant was the owner of Plots No. 125, 127 and 129 Block “Y” while the respondent was the owner of Plots No. 126 and 128 Block “Y”. The DLHT being adamant that the decision of the Tribunal was annexed to Misc. Land Application No. 49 of 2022. At the conclusion of Misc. Land Application No. 49 of 2022 the DLHT the DLHT ordered the appellant to demolish his structure that had encroached the respondent’s land within 14 days from the decision. It is against that decision that the appellant has lodged the present appeal, which for reasons to be apparent in a short while I do not find it necessary to reproduce the grounds of appeal. By consensus, the appeal was argued through written submissions, the schedule to which the parties adhered to. However, when in the process of composing the judgment, I became aware that the matter appealed against might not be appealable within the ambit of the law specifically in terms of section 74 of the Civil Procedure Code (the CPC), therefore I invited the parties to address the court on that aspect and credit to both counsels, Mr. Emmanuel Sululu for the appellant and Mr. 3 Geofrey Tuli for the respondent, they heeded the court’s call and accordingly entered appearance and argued their contesting positions. Mr. Sululu submitted that, it is proper for the appellant to come to this court by way of appeal because this matter is land in nature and the law applicable is the Land Disputes Courts Act (the LDCA) and its Regulations. Therefore, the Civil Procedure Act can only become applicable, through section 52(1) and (2) (sic) of the LDCA, where there is a lacuna. However, the LDCA and its Regulations do not have a lacuna on this matter thus the CPC is not applicable. The learned advocate cited the decision of the Court of Appeal in Doto Hamza v. Mohamed Hassan Mtonga, Civil Application No. 25/17 of 2022 (unreported) and that of this court in Sospeter Ramadhani and 2 others v. Mchiwa Chedego, Misc. Land Appeal No. 37 of 2023 (unreported) to support his position. In reply, Mr. Tuli, learned advocate submitted that, it is not proper for the appellant to come by way of appeal. There is a lacuna in the LDCA as there is no provision that deals with appeals against execution orders and therefore, the CPC comes into play via section 51 of the LDCA. 4 The learned advocate submitted further that, section 74 of the CPC deals with appeals from orders, but appeals against execution orders are not listed amongst the appealable orders. He also referred to Order XL of the CPC and the High Court decision of Mohamed Makata v. Rukia Mtama, Revision No. 6 of 2022 (unreported). He urged the court to strike out the appeal with costs for being incompetent. In rejoinder, Mr. Sululu reiterated his submission in chief and stressed that there are two contrasting schools of thought on this subject, one saying that orders in execution, in land matters, can only come to the High Court by way of revision, while the other is of the opinion that an aggrieved party can come by way of appeal. Having heard the rival submissions of the parties what is left now is to determine the legal issue raised by the court. It is not in contention that section 167 of the Land Act establishes courts with exclusive jurisdiction to try all manner of disputes, actions and proceedings concerning land, the DLHT and the High Court inclusive. It is also not in contention that via section 51 of the LDCA the CPC is applicable in the High Court and the DLHT when exercising their respective 5 jurisdictions. With regard to appeals from the DLHT to the High Court, in the exercise of the DLHTs’ appellate or revisional jurisdiction the applicable provision is section 38(1) of the LDCA which reads: “38. -(1) Any party who is aggrieved by a decision or order of the District Land and Housing Tribunal in the exercise of its appellate or revisional jurisdiction, may within sixty days after the date of the decision or order, appeal to the High Court: Provided that, the High Court may for good and sufficient cause extend the time for filing an appeal either before or after such period of sixty days has expired.” (2) N/A (3) N/A.” Regarding the use of the CPC in land matters before the High Court, the relevant provision is section 51 of the LDCA, it provides: “51. -(1) In the exercise of its jurisdictions, the High Court shall apply the Civil Procedure Code and the Evidence Act and may, regardless of any other laws governing production and admissibility of evidence, accept such evidence and proof which appears to be worthy of belief. (2) The District Land and Housing Tribunals shall apply the Regulations made under section 56 and where there is inadequacy in those Regulations it shall apply the Civil Procedure Code.” [Emphasis added]. 6 Likewise, regulation 24 of the Land Disputes Courts (The District Land and Housing Tribunals) Regulations, 2002, which was relied upon by counsel for the appellant, provides that: “24. Any party who is aggrieved by a decision of the Tribunal shall subject to the provisions of the Act have the right to appeal to the High Court (Land Division): Provided that, an appeal shall not in any case be a bar to the execution of decree or order of the Tribunal”. [Emphasis added]. Regulation 24 makes it explicit that the right to appeal to the High Court is “subject” to the provisions of the “Act” (that is the LDCA). Thus, an appeal from the DLHT to the High Court is not outright. When the DLHT was dealing with Miscellaneous Land Application No. 49 of 2022 it was not exercising its appellate or revisional jurisdiction, thus section 38(1) of the LDCA is inapplicable to the matter at hand. It should also be noted that, in the exercise of its jurisdictions (original, appellate or revisional) the High Court, via section 51, of the LDCA is required to use the CPC. And This brings us to section 74 of the CPC which provides that: “74. -(1) An appeal shall lie to the High Court from the following orders of the District Courts, Resident Magistrate’s Courts and 7 any other tribunal, the decisions of which are appealable to the High Court, and save as otherwise expressly provided in this code or by any law for the time being in force from no other order- (a) an order superseding an arbitration where the award has not been completed within the period allowed by the court; (b) an order on an award stated in the form of a special case; (c) an order modifying or correcting an award; (d) an order filing or refusing to file an agreement to refer to arbitration; (e) an order staying or refusing to stay a suit where there is an agreement to refer to arbitration; (f) an order filing or refusing to file an award in an arbitration without the intervention of the court; (g) an order under section 69; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention as a civil prisoner of any person except where such arrest or detention is in execution of a decree; or (i) any order made under rules from which an appeal is expressly allowed by rules. (2) N/A (3) N/A.” [Emphasis supplied]. Section 74 of the CPC is read together with Order XL which provides for only two types of orders that can be appealable in execution proceedings and the same are: an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement; and an order 8 under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale. The appellants appeal falling outside the purview of section 74 and order XL of the CPC means that the same is not appealable – See: Mohamed Makata v. Rukia Mtama (supra); and Chacha Nyikongoro v. Ndege Kiseke, Land Appeal No. 145 of 2020 – HC Musoma (unreported). Counsel for the appellant cited the Court of Appeal decision in Doto Hamza v. Mohamed Hassan Mtonga (supra), with respect, I have failed to see anywhere in the cited decision where it was held that an order in execution proceedings is appealable. And for the reasons stated previously I am of the view that the appeal is incompetent, notwithstanding the decision in Sospeter Ramadhani and 2 others v. Mchiwa Chedego (supra) which based its findings on section 38(1) of the LDCA, a provision which I have found inapplicable to the appeal at hand. Likewise, regulation 24 of the of the Land Disputes Courts (The District Land and Housing Tribunals) Regulations, 2002 is inapplicable because of section 51(1) of the LDCA. 9 In the upshot, having found the appeal incompetent, the same is untenable and is accordingly struck out with costs. It is so ordered. N.L. MWAKAHESYA JUDGE 06/09/2024 10