the registered trustee of kanisa la pentekoste tanzania another vs rahmat ally fungameza 2 others 2022 tzhclandd 12784 17 january 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND REVISION NO.49 OF 2022 (Originating in Misc. Application No. 156 of 2022 arising in Appiication No. 62 of 2007 in the District Land and Housing Tribunai at Kibaha) THE REGISTERED TRUSTEE OF KANISA LA PENTEKOSTE TANZANIA APPLICANT TANZANIA INVESTMENT BANK LTD 2"" APPLICANT VERSUS RAHMAT ALLY FUNGAMEZA (As personal legal Representative of ALI HASSAN FUNGAMEZA,deceased 1®^ RESPONDENT FATUMA RASHIDI RUPINDA as personal legal Representative of RASHIDI SELEMANI RUPINDA,deceased 2"° RESPONDENT TATUSAID MIKUYA(As personal legal representative of SAIDI MAULIDI MIKUYAH deceased S"" RESPONDENT Date ofLast Order: 12.12.2022 Date ofRuling: 17.01.2023 RULING T. N. MWENEGOHA,J. The Applicants had approached this Court praying for the Court to caii for inspection the records of Kibaha District and Housing Tribunai in Misc. Land Appiication No. 156 of 2022 and revise it as it deems fit. Before hearing commenced, the respondents, through their advocate, Denis Michaei Msafiri raised preiiminary objections as foliows:- 1. The Application for Revision is hopelessly misconceived for being preferred as an alternative to or instead of an appeal permitted under regulation 24 of the Land Disputes Courts (District Land and Housing Tribunals) Regulations, 2002; 2. The Application is incurably defective thus incompetent for not being supported by affidavit of the 2"" Applicant contrary to mandatory requirements of law; 3. The application by the Applicant is incurably defective for not being accompanied by an affidavit made or sworn by any one or more of the trustees of the said Applicant; and 4. The Affidavit purportedly sworn by one Job Cyprian Sembuche Is incurably defective for:- a. Containing matters in paragraph 6, 7 and 8 which are not verified at all; b. Lacking locus standi to swear that affidavit as a mere principal officer without more without having been so authorized by the trustees thereof. Hearing of the P.O was done by way of written submission. Advocate Denis Michael Msafiri appeared for the respondents, while the applicants enjoyed the legal services of Advocate Nehemia Gabo. In the first objection, Mr. Msafiri submitted that Execution of the Decree before the District Land and Housing Tribunal is dealt with under Part V. of the Land Disputes Courts (District Land and Housing Tribunal) Regulations, 2002 G. N. No. 174 of 2003 published on 27"^ June, 2003. He referred to provision of Reguiation 24 which indicates that any person aggrieved by the decision of Tribunal has the right to appeal. He then cited the case of Transport Equipment Limited Vs. Devron P. Vaiambhia (1995)TLR161 and insisted that Revision is not an alternative to appeal. In reply, Nehemia Gabo, counsel for the applicant submitted that the position of law is clear that execution orders are not appealable because they are not among appealable orders provided for by order XL and Section 74 of the Civil Procedure Code (CPC). To him Part V of the (Land District and Housing Tribunals) Regulations is irrelevant to this application. Having heard the counsels'submission I now have determine if the appeal has merit on the first point of the preliminary objection, I am enciined to agree with the view that, Reguiation 24 the (Land District and Housing Tribunals) Regulations is distinguishable to the matter at hand. I find it difficult to believe that, Reguiation 24 applies when a person wants to challenge the decision of the Tribunal given in Execution proceedings. For easy reference I will reproduce Regulation 24 the (Land District and Housing Tribunals) Regulations as foiiows;- "Any party who is aggrieved by the decision ofthe Tribunal Appeal shall subject to the provisions of the Act, have the right to appeal to the High Court(Land Division)". Based on the wording of the above quoted provision, one can argue that, the provision refers to the judgment and decrees issued by Tribunals in exercise of its original or appellate jurisdiction in land disputes. That, it does not cover Rulings emanated from Execution proceedings. However, as this point of preiiminary objection being an arguabie fact I wiii not discuss it further or give it any weight of consideration as I see it unfit to be a preliminary objection as per the celebrated case of Mukisa Biscuits Manufacturing Co. Ltd versus West End Distributors Ltd (1969) E.A. With this note, I find the first objection raised by the respondents cannot stand. Moving to the 2"'' objection, it was argued by Mr. Msafiri that, the Application is incurably defective thus incompetentfor not being supported by affidavit of the 2"" applicant. He insisted that, since there are two applicants in this application, each of them must swear an affidavit and the same must be attached to the chamber summons. This was also the view of the Court in The Registered Trustees of St Anita's Greeniand Schooi (T) & 6 Others versus Azania Bank Limited, Civii Appiication No. 168/16 of 2020, Court of Appeal of Tanzania(unreported). In reply to the 2"^" objection, Mr. Gabo was of the view that, he is aware that. Order XLIII Rule 2 of the Civii Procedure Code, Cap 33 R.E 2019 requires every application be supported by an affidavit. However, failure of the 2"'^ applicants to file an affidavit in this application, does not render the application incompetent. On this objection I am enclined to agree with Mr. Msafiri. The rules are well settled, where there are two or more applicants, each of them must swear an affidavit or they must swear a joint affidavit, signed by each applicant. At hand, I have only one affidavit in support of the appiication. The same appears to be of the principal officer of the P' applicant. The 2"=' appiicant did not swear any affidavit to support this application. Impliedly, she is either against it or unaware of its existence. Therefore, as of now she cannot be part of it unless an affidavit from her is produced to support the same. Hence, two peopie of different interests cannot be tied together in this Application. This application, therefore, must fail, unless the rules so stated herein above are complied with. This being the case and guided by the rules given by the Court of Appeal of Tanzania, in The Registered Trustees of St Anita's Greenland School (T) & 6 Others versus Azania Bank Limited,(supra), I find merits in the 2"" objection, and I sustain it accordingly. As findings in the T'^ objection has the effect of striking out the entire application. I see no need to discuss other points of preliminary objections raised. The application is struck out with cost as prayed. It is so ordered. \j A 2: TM. mwenegoha ★ JUDGE 1710112023