Ruling Revision 1

Page 1 of 19 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB REGISTRY AT GEITA LAND REVISION NO. 17616 OF 2024 (From the decision in Application No. 133 of 2020 dated 30/05/2024 of the Geita District Land and Housing Tribunal) BETWEEN THE REGISTERED TRUSTEES OF BARAZA LA WAISLAM TANZANIA (BAKWATA)……………………………. APPLICANT VERSUS IDRISA ATHUMANI FOR MASJID -L- ULLA ………….1ST RESPONDENT ELIYA MAYOYO …………………………………………….2ND RESPONDENT MARIA MSENYELE …………………………………………3RD RESPONDENT RULING Date of last Order: 08/10/2024 Date of Ruling: 22/10/2024 MWAKAPEJE, J.: This application, supported by the affidavit of Sinai Athuman Luhiso, is brought under Section 43(1)(b) of the Land Disputes Courts Act, Cap. 216. The applicant prays for an order for this court to call for and examine the records of the District Land and Housing Tribunal of Geita (DLHT) in the execution proceedings and the correctness, legality, and propriety of the execution order decision in Miscellaneous Application No. 133 of 2020 of 30 May 2024. Additionally, the applicant prays for the quashing and setting Page 2 of 19 aside of the said order and seeks an award of costs and any other relief that this court deems just and equitable. The sequence of events that led to the current application traces back to 10 October 1990, when the applicant was assigned Plot No. 551, Block "F," situated on Msalala Road in Geita. On 10 November 2006, Ms Magreth E. Mliwago raised a claim asserting that she had not received compensation for the improvements made over the land, which included three residential buildings and a mango tree. In response, the applicant agreed to compensate Tsh. 3,500,000. However, the allocation was rescinded on 02 April 2007 due to the applicant's failure to fulfil the compensation agreement. Despite this, the applicant continued to pay land rent until the 2016/2017 period. As of 2019, the disputed land remained unallocated. At an unspecified time, the 1st Respondent asserted ownership of the property, sparking a series of legal disputes over the rightful ownership of the contested premises between the applicant and the 1st Respondent. In 2019, the applicant lodged a trespass case (No. 35 of 2019) against the 1st respondent at the Kalangalala Ward Tribunal, which ruled in favour of the 1st respondent. Subsequently, the applicant filed an appeal with the District Page 3 of 19 Land and Housing Tribunal (DLHT) in Land Appeal No. 50 of 2019, resulting in overturning the Ward Tribunal's decision and a retrial being ordered. In 2020, the 1st Respondent initiated Land Case No. 112 of 2020 in the Kalangalala Ward Tribunal, seeking the eviction of the 2nd and 3rd Respondents. The tribunal ruled in his favour, leading to the commencement of execution proceedings in the DLHT in Application No. 133 of 2020. In response, the applicant filed applications Nos. 87 and 88 in 2021 at the DLHT for objection proceedings and a stay of execution, respectively. These applications, especially No. 87 of 2021, among other things, led to the annulment of the Ward tribunal's judgment due to non-compliance with the retrial directive in Land Appeal No. 50 of 2019. The applicant's endeavour to establish ownership through Land Application No. 54 of 2022 was dismissed on technical grounds, including the failure to join a necessary party and non-adherence to section 13 of the Land Disputes Courts Act, Cap 216, which mandates parties to seek mediation by the Ward Tribunal before initiating an application at the District Land and Housing Tribunal. Ultimately, the 1st Respondent obtained an eviction order against the 2nd and 3rd Respondents on 30 May 2024, in application No. 133 of 2020, stemming from application No. 112 of 2020. Page 4 of 19 From this background, the applicant now seeks this court's intervention to revise and set aside the DLHT’s execution order on the grounds that the tribunal acted without jurisdiction, being functus officio, as Land Case No. 112 of 2020 had already been quashed by the DLHT in Application No. 87 of 2020. In his counter-affidavit, the 1st respondent contended that the applicant had no claim of right over the disputed land since he violated ownership conditions. In addition, he stated that land case No. 112/2020 did not involve the applicant as he lost his case in Land case No. 35/2019 in the Ward Tribunal. Furthermore, the counsel for the 1st respondent stated that application No. 87/2021 stayed the execution of Land Case No. 112/2020 pending the decision in Land Case No.54/2022, where the applicant failed to prove ownership over the suit premises. At the application hearing, the applicant was represented by Mr Shija Jeremia, a learned advocate, while the 1st Respondent was under the care of Ms Elizabeth Msechu, a learned advocate. The 2nd and 3rd Respondents appeared pro se. Page 5 of 19 In his submission, Mr Jeremia asserted that the main purpose of the revision application was to seek the annulment of the order issued on 30 May 2024 for the execution of Misc. Application No. 112 of 2020 by the Kalangalala Ward Tribunal. He emphasised that this order had been invalidated through Miscellaneous Application No. 87 of 2021, filed by the applicant, as indicated in Annexure BAKW 02 on page 10 of his affidavit. Mr Jeremia pointed out that subsequent to the nullification, there had been no appeal from the 1st Respondent against this decision. Consequently, he argued that the District Land and Housing Tribunal's (DLHT) order of 30 May 2024 lacked jurisdiction since the DLHT had already set aside the decision in Case No. 112 of 2020 of the Ward Tribunal. He asserted that due to being functus officio, the DLHT lacked the authority to transfer the disputed land to the 1st Respondent, as the decision had already been revoked. Mr Jeremia further contended that the ownership of the disputed land, granted to the 1st Respondent by the tribunal's order on 30 May 2022, was also questionable as it was done without proper jurisdiction. He explained that the District Land and Housing Tribunal had previously instructed the Applicant and the 1st Respondent in Appeal No. 50 of 2019 to commence a land case to determine ownership. However, when the Applicant filed Land Page 6 of 19 Case No. 54 of 2022, it was prematurely dismissed due to preliminary objections. He argued that since the ownership remained undetermined, the execution to transfer the disputed land against third parties (2nd and 3rd Respondents) was erroneous, as per the DLHT's order dated 30 May 2024. Citing the case of Marwa Mahende vs Republic [1998] TLR 249, he underscored that the court's duty was to apply and interpret the laws of the land. Mr Jeremia concluded by requesting the court to revise and overturn the execution order and to direct both parties to initiate a suit to establish the rightful owner of the disputed land. On the contrary, Ms. Msechu contended that the applicant's submissions lacked merit. She elucidated that the execution carried out by the Ward Tribunal was based on the third order in the objection raised in Application No. 87 of 2021, where the DLHT had stayed the execution pending the determination of the main case. Following the dismissal of the main case, the 1st Respondent sought execution against the 2nd and 3rd Respondents. She argued that there was no justification for halting the execution, emphasising that cases must reach finality. Furthermore, Ms. Msechu argued that the applicant lacked legal standing in this court due to the absence of legitimate ownership rights over Page 7 of 19 the contested land held by the 1st, 2nd, and 3rd Respondents. She referenced the case of the Registered Trustees of the Al-Duwil Masjid Madrsatul and three others versus the Commissioner for Lands, Ministry of Lands Housing and Human Settlements and two others (Civil Appeal No. 252 of 2021) [2024] TZCA 883 (11 September 2024), to bolster her claim. It was elucidated that the offer letter extended to the petitioner was contingent upon certain stipulations, notably the requirement to fulfil payment terms within 30 days; failure to comply with these terms could lead to the transfer of the property to an alternative party. Owing to the petitioner's noncompliance with these conditions, they were devoid of any rightful claim to ownership of the property and consequently lacked standing in this matter. Ms Msechu concluded by asserting that the revision application submitted by the petitioner was devoid of merit and urged for its dismissal. The 2nd Respondent stated that they resided on the applicant’s premises when a case was initiated against them, requiring them to remain on the property until the rightful owner was identified. However, he highlighted that a contradictory legal dispute later arose, resulting in an Page 8 of 19 order to vacate the premises in May 2024 without following proper procedures. The 3rd Respondent also explained that she had been residing in the dwelling where the Applicant directed them to live and care for diligently for over ten years. She expressed regret over being instructed to evacuate the premises owned by the applicant. In his rejoinder, Mr Jeremia reiterated his previous argument, asserting that the execution order lacked legitimacy due to the annulment of the underlying decision in Misc. Application No. 87 of 2021. He underscored that once a judgment is invalidated, it loses its legal validity, and the execution by the DLHT took place subsequent to the decision being rescinded. He also contended that the disputed land had never been duly adjudicated by a competent court, as Land Case No. 54 of 2022 was dismissed because of the 1st Respondent's lack of standing. Mr Jeremia emphasised the necessity of providing evidence to establish land ownership and clarified that the purpose of the application was to scrutinise the legality of the DLHT's execution order. He argued that the case cited by the 1st Respondent was irrelevant and highlighted the applicant's vested interest despite not being explicitly named Page 9 of 19 in the order. Finally, he asserted that the 2nd and 3rd tenants were evicted unlawfully and prayed that the application be granted, with costs. Having considered the submissions by the counsels for the parties, this court is to consider whether the application has merit. In doing so, I will first and foremost address the issues raised by the counsel of the 1st respondent, namely that the applicant has no locus as he was not a party to the proceedings in application No. 112 of 2020, before delving into the issue of jurisdiction as raised by the applicant herein. It is a position of the law that the institution of the cases in courts of law is not open to whoever feels so doing. However, this is limited only to persons or parties with an interest in a specific case. Therefore, a person who was not a party to the proceedings in the courts/tribunals below and has interests in the subject matter has to approach the court through revision as his only remedy; see the cases of Ahmed Ally Salum vs Ritha Basmali and Another, Civil Application No. 21 of 1999 (CAT at Dar es Salaam (Unreported)) and Monica Nyamakare Jigamba vs Mugeta Bwire Bhakome and Another (Civil Application No. 199 of 2019) [2020] TZCA 1820 (16 October 2020). In the case of Ahmed Ally Salum vs Ritha Basmali and Another (supra), it was stated that: Page 10 of 19 “As the applicant, who also was not a party to the proceedings below, could not have appealed, revision was his only remedy.” [Emphasis supplied] In the instant application, this Court acknowledges that both the 2nd and 3rd respondents have never claimed ownership of the disputed property beyond asserting that they were merely caretakers and tenants of the applicant. The pertinent question, then, is why an execution order was issued against them, excluding their principal (the Applicant), despite their express statement that it was, in fact, the Applicant who authorised and permitted them to reside on the property. This court is of the view that, given the ongoing dispute over the ownership of the property, it would have been incumbent upon the 1st respondent to assert any claim against the Applicant and enjoining him in such an application. This would have ensured that the issue of ownership could be adequately, fairly, and comprehensively adjudicated by the competent authorities. By failing to do so, the 1 st respondent has not acted in a manner that promotes a just resolution of the dispute. Furthermore, it is established as a position of the law that the non- joinder of a party who, in one way or another, is affected by the outcome of the decision is fatal. The factors for joining a party as a defendant or Page 11 of 19 respondent, as the case may be, were stated in the case of Departed Asian Property Custodian Board v. Jaffer Brothers Ltd [1999] E.A. 55 (SCU) and applied in our jurisdiction in a number of cases, including but not limited to the Court of Appeal cases of Ami Mpungwe v. Abas Sykes, Civil Appeal No. 67 of 2000 (unreported), Tang Gas Distribution Limited v. Mohamed Salim Said & 2 others, Civil Application for Revision No. 68 of 2011 (unreported), Stanslaus Kalokola v. Tanzania Building Agency & Mwanza City Council, Civil Appeal No. 45 of 2018 (Unreported) and Claude Roman Shikonyi vs Estomy A. Baraka and 4 Others (Civil Revision No.4 of 2012) [2019] TZCA 217 (18 July 2019). In the Departed Asian Property Custodian Board v. Jaffer Brothers Ltd (supra), it was observed that: “I have not laid my hands on any reported decision in East Africa directly on the point of criteria for determining that the presence of a person is necessary under Order 1, rule 10 (2) of the Civil Procedure Rules ... However, taking a leaf from authorities in other jurisdictions having similar and even identical rules of procedure, I would summarise the position as follows: For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions 18 involved in the suit, one of two things has to be shown. Either it has to be shown that orders which the plaintiff seeks in the suit would legally affect the interests of that person, and it is desirable, for the Page 12 of 19 avoidance of multiplicity of suits, to have such person joined so that he is bound by the decision of the court in that suit Alternatively, a person qualifies (on the application of Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set up a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person" [Emphasis supplied] This principle was, therefore, summarised in Ami Mpungwe’s case (supra) that a party is joined: "(i) where any right to relief alleged to exist against them arises out of the same act or transaction; and (ii) where, if separate suits were brought against such persons, any common questions of law or fact would arise. " Additionally, in the case of Tang Gas Distributors Ltd vs Mohamed Salim Said and Two Others (supra), it was stated that: “... it is now an accepted principle of law … that it is a material irregularity for a court to decide a case in the absence of a necessary party. Failure to join a necessary party, therefore, is fatal." [Emphasis Supplied] As previously mentioned, in the current application, it is evident that the applicant held a vested interest in the disputed property under consideration, and the outcome obviously affected him, considering that he Page 13 of 19 served as the plaintiff in Land Case No. 35 of 2019 at the Kalangalala Ward Tribunal and as the appellant in Land Appeal No. 50 of 2019 at the District Land and Housing Tribunal of Geita. Thus, it was crucial for him to be joined as a party in applications Nos. 112 and 133, both of 2020 in the Ward Tribunal and DLHT, respectively, as it was further stated in the case of Claude Roman Shikonyi (supra), that: “...it was a material irregularity for the trial court to issue the referred orders dated the 29th October, 2OO9 and the 19th April 2011 in the absence of the applicant whose interest on Plot No. 58 was adversely affected. The joinder of a necessary party to a suit is procedural in nature and, accordingly, the same ought to have been done at the time of trial...” [Emphasis Supplied] Guided by the aforementioned authorities and upon meticulous examination of this application, notwithstanding the Applicant's non- involvement in land case No. 112 of 2020 before the Ward Tribunal, it is incontrovertible that he possesses a vested interest in the subject matter (Plot No. 551, Block "F," on Msalala Road in Geita), which was the primary cause of the dispute with the 1st respondent in the original case No. 35 of 2019, resulting in subsequent applications and litigations concerning the same property. Page 14 of 19 Moreover, the Applicant has maintained a stake in the contested property in this application. Despite not being a party to case No. 112 of 2020, the Applicant appropriately sought redress by submitting this revision application as he had no avenue to appeal. See the cases of Monica Nyamakare Jigamba vs Mugeta Bwire Bhakome and Another (supra) and Ahmed Ally Salum vs Ritha Basmali and Another (supra). Therefore, I disagree with Ms Msechu's contention that the applicant lacks standing in the current application. Also, the case she referred to is distinguishable from the circumstances of this application, as rightly asserted by Mr Jeremia. Moving to the issue of jurisdiction raised by Mr Jeremia, asserting that the DLHT lacked jurisdiction to entertain Execution Application No. 113 of 2020, one must delve into the original case in the Ward Tribunal, namely Land Application No. 35 of 2019. In this case, the 1st respondent was declared the rightful owner of the property in question. However, the DLHT overturned this decision in Land Appeal No. 50 of 2019 and ordered a retrial. Instead of adhering to this directive, the 1st respondent initiated another application in the said Ward Tribunal, registered as Application No. 112 of 2020, against the 2nd and 3rd respondents, seeking vacant possession of the Page 15 of 19 premises, a claim which the Ward Tribunal upheld by affirming his ownership of the said property. Subsequently, in Application No. 87 of 2021, the DLHT annulled and voided the aforementioned decision and proceedings in compliance with the retrial order issued in Land Appeal No. 50 of 2019. In the aftermath of the ruling in Application No. 87 of 2021, the applicant lodged Land Case No. 54 of 2022 against the first respondent regarding ownership of the property in question. However, as previously mentioned, the said application was struck out. Undeterred, the 1st respondent proceeded to file and was granted an execution order on 30/05/2024 in Application No. 133 of 2020, originating from Application No. 112 of 2020. The pivotal question at hand is whether the tribunal possessed jurisdiction over the matter. To address this issue, this court scrutinised whether the ownership dispute had been definitively resolved. As evidenced by the sequence of events outlined herein, it is evident that following the retrial mandated in Land Appeal No. 50 of 2019, the applicant and the respondent were embroiled in a legal dispute before the DLHT in Land Application No. 54 of 2022, albeit the dismissal of the case on procedural grounds. Consequently, it would be inaccurate to assert that ownership was conclusively determined Page 16 of 19 in Land Application No. 112 of 2020, where the applicant was not a party, and the 2nd and 3rd respondents did not lay claim to ownership. It is, therefore, justifiable to affirm that the retrial order issued in Appeal No. 50 of 2019 and reinforced in Application No. 87 of 2021 remains unfulfilled to date. This standpoint is rooted in the principle that court orders are not mere formalities; instead, they are legally binding directives designed to uphold justice. A similar holding was made in the case of Godfrey Kimbe vs Peter Ngonyani (Civil Appeal No. 41 of 2014) [2017] TZCA 1 (25 July 2017), where it was explicitly stated that: “Court orders are binding and are made in order to be implemented.” Now, considering the orders in Land Appeal No. 50 of 2019 and Land Application No. 87 of 2021, both in the DLHT, which explicitly invalidated and annulled the orders in Applications No. 35 of 2019 and No. 112 of 2020 of the Ward Tribunal, it was inappropriate for the DLHT to entertain and grant an execution order in favour of the 1st respondent in Execution Application No. 133 of 2020 originating from Application No. 122 of 2019 since the Chairman was functus officio and therefore lacked jurisdiction as aptly pointed out by Mr Jeremia. To be more precise, the order in Application Page 17 of 19 No. 87 of 2021 on page 10 of the DLHT ruling regarding Application No. 112 of 2020 is cited as follows: “…..Baraza linaamua kama ifuatavyo:- 1. Maamuzi na mwenendo katika shauri Na. 112 la 2020 yanafutwa na kuwekwa kando kwa kuwa yalifunguliwa kabla ya mgogoro wa umiliki kati ya mleta maombi na mjibu maombi wa kwanza haujatatuliwa, kujua mmiliki halali wa eneo bishaniwa ni nani kama ilivyoamuliwa katika Baraza hili katika rufaa na. 50 ya 2020. 2. Mleta maombi na mjibu maombi wa kwanza watekeleze amri ya Baraza Kwenye rufaa Na. 50 ya 2020 kwa mgogoro wa umiliki kusikilizwa upya. Kwa kufuatana na marekebisho ya sheria (Written laws Miscellaneous Amendment Act No. 3 ya Mwaka 2021. 3. Utekelezaji wa maombi madogo Na. 155 ya 2020 unasimamishwa 4. Kwa kuzingatia mazingira ya shauri kila upande kubeba gharama zake.” [Emphasis supplied]. This is loosely translated thus; "…..The Tribunal orders as follows: 1. The decision and proceedings in Case No. 112 of 2020 are hereby quashed and set aside because the case was initiated before the ownership dispute between the applicant and the first respondent was resolved to determine who the rightful owner of the disputed area is, as ruled by this Tribunal in Appeal No. 50 of 2020. 2. The applicant and the first respondent are ordered to comply with the Tribunal's directive in Appeal No. 50 of 2020 for the ownership Page 18 of 19 dispute to be reheard in accordance with the amendments of the law (Written Laws Miscellaneous Amendment Act No. 3 of 2021). 3. The execution of application No. 155 of 2020 is hereby stayed. 4. Considering the circumstances of the case, each party shall bear its own costs." From the excerpt of the aforementioned order, I respectfully disagree with Ms Msechu's assertion that Application No. 87 of 2021 halted the execution of Application No. 112 of 2020; rather, it was quashed and set aside. Even if the presiding Chairman stayed the execution of the aforementioned application, i.e. No. 155 of 2020 (which is non-existent, believing that reference was on 133 of 2020), and if it is derived from Application No. 112 of 2020 of the Ward Tribunal, which was invalidated, then there was no basis for execution in Application No. 133 of 2020, that stemmed from the annulled application. Hence, the alleged execution order was unlawfully obtained. Consequently, the ownership of the disputed parcel of land remains indeterminate. Despite the Ward Tribunal's declaration naming the 1st respondent as the owner, the DLHT subsequently annulled this decision. Moreover, the DLHT, without possessing the requisite jurisdiction to do so, issued an execution order in Application No. 133 of 2020, an application it Page 19 of 19 had previously nullified in Application No.112 of 2020. Given these circumstances, the revision of this application is inevitable. Therefore, this court finds the application meritorious and grants it. The execution order in Application No. 133 of 2020, dated 30/05/2024, is hereby nullified and set aside. Further, the parties are directed to adhere to the order issued by the District Land and Housing Tribunal on 23/09/2020 in Land Appeal No. 50 of 2019. In the circumstances of this application, I make no orders as to costs. It is so ordered. DATED at GEITA this 22nd day of October 2024. G.V. MWAKAPEJE JUDGE