Judgment Theresia Peter Edited 22222

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MANYARA AT BABATI LAND APPEAL NO. 13402 OF 2024 (Arising from District Land and Housing Tribunal of Babati vide Misc. Land Application No. 30/2024) THERESIA PETER (Administratix of estate of the late BIFA TLUWAY).......................................................................... APPELLANT VERSUS LOUIS PETER DANGAT.........................................................1st RESPONDENT NIIMA TLUWAY...................................................................2nd RESPONDENT KIBAIGWA AUCTION MART & CO. LTD............................... 3rd RESPONDENT JUDGMENT 29th September & 06th November, 2024 Kahyoza, J. Theresia Peter (the administratrix of the late Bifa Tluway) (Theresia) opposed an application for execution of the decree in Land Application No. 67/2012 before the District Land and Housing Tribunal (the tribunal). Unfortunately, she lost the battle. Aggrieved, Theresia appealed contending that, the proceedings are tainted with gross incurable procedural irregularities, the decision of the tribunal is illegal for being obtained fraudulently, the tribunal did not adhere to the procedures of land dispute settlement and finally that the decision of the tribunal is bad in law lack of legal reasoning and tainted with corruption circumstances. 1 The first and third respondents opposed the appeal. The parties argued the appeal orally and by way of written submission. This matter has a fetched history, which complicates the matter that is otherwise a simple matter. The issue before this Court ought to be whether the tribunal was justified to disallow the appellant’s objection proceedings. The records show that in 2010 Louis Peter Dangay sued Niima Tluway for a declaration that he was the owner of the suit land. Louis contended that he was allocated the suit land by Babati Town Council after surveying the disputed land and paying compensation. Niima Tluway’s who formerly owned the land was compensated. He contended that before the alleged survey, Niima Tluway’s mother and Niima Tluway owned the suit land another land totaling to l1/4 acres of land. She contended that the disputed land was her land. Niima lost the case through the decision of the tribunal, delivered on 25.11.2011. There is no evidence if Niima appealed against the decision. Louis filed an application for execution in 2012 (Misc. Land Application No. 67/2012) which the tribunal granted ordering eviction of occupants and demolition of two houses on the suit land. Theresia, the administratrix of the late Bifa Tluway filed objection proceedings contending that the late Bifa Tluway was the owner of farm. She contended after the survey Bifa Tluway’s farm produced five plots which 2 the disputed plots were part of them. Her argument was that the late Bifa Tluway was the owner of the suit land. The record showed that before her death, Bifa Tluway Sheba sued Niima Tluway, Louis Peter Dangat, Babati Town Council and Kibaigwa Auction Mart and Co. Ltd vide Land Application No. 35 of 2016. The tribunal did not hear the application until when it dismissed it for want of prosecution on 22.02.2022. On 7.03.2024, Theresia instituted an application praying to be heard before the execution order is issued. The tribunal decided that Theresia’s application had been overtaken by event as the execution order was issued in 2012. The tribunal found further that the third respondent had partly executed the decrees. The tribunal dismissed the application and ordered the eviction of the occupants of the houses on the suit land. Is the Appeal properly filed? The first respondent submitted during his reply that the appeal was wrongly filed as it was titled petition of Appeal insisted of memorandum of Appeal. To support his contention, the respondent cited Order XXXIX, rule 1 of the Civil Procedure Code, [Cap. 33 R.E. 2019] (the CPC). In his rejoinder, the appellant’s advocate Mr. Masanja, submitted that, the phrase petition of appeal and the phrase memorandum of appeal have 3 the same meaning and the purpose is to challenge the decision. To support his contention, he cited the cases of Basil Masare v. Petro Michael [1996] TLR 226 and Felician Mchuruza v. Zindunza Mnaku [2013] TLR 210. In the latter, Mwambegele, J. held that- “Whether one uses petition of appeal or memorandum of appeal in the documents does not matter. They just are different names meaning one and the same thing intended to serve the same purpose. The use of the title “memorandum of Appeal” instead of “Petition of Appeal” as provided for by cannot ipso facto render the appeal incompetent”. I, for one, I find it settled that whether the document is titled Petition of Appeal instead of Memorandum of Appeal is an error which would not render the appeal incompetent. It would be more absurd to hold otherwise when the principle of overriding objective has been introduced in statutes. I find the preliminary objection baseless. Is an appeal instituted without annexing a decree competent? The first respondent raised another point of law that the appeal was not competent for failure to attach the decree or the order appealed against. To support his contention, the respondent cited the case of Mariam Abdallah Fundi v. Kassim Abdallah Farsi [1991] TLR, CA 196 where the Court of Appeal held that- 4 “It has been held a number of times:- That Order 39 rule 1 is mandatory in requiring memorandum of appeal to be accompanied by a copy ofthe decree or order appealed and where an appellant failed to comply with these provisions, the appeal is not properly before the court and must be dismissed. Munshivan and Co. vs. Star Soda Water factory [1934], 16 K. L. R. 50 which was followed in Kotak Ltd vs. Kooverji [1967] E.A. 34. The Learned High Court Judge ought to have dismissed the appeal which must be treated as having been null and void” (Emphasis added)”. In his rejoinder, the appellant’s advocate submitted that, the appellant had nothing to do with how the title of the decision was written in the document duly supplied by the tribunal. He contended that the document was titled “Uamuzi mdogo” and the document was annexed to the Petition of Appeal. Indisputably, the appellant lodged the appeal without attaching a decree of an order appealed against. Order XXXIX, rule 1 of the CPC states clearly that memorandum of appeal shall be accompanied by a copy of the decree appealed from. For the sake of clarity, I reproduce rule 1 of Order XXXIX of the CPC. “ Order XXXIX rule 1- Every appeal shall be preferred in the form of a memorandum signed by the appellant or his advocate and presented to the High Court (hereinafter in this Order referred to as 5 "the Court") or to such officer as it appoints in this behalf and the memorandum shall be accompanied by a copy of the decree appealed from and (unless the Court dispenses therewith) of the judgment on which it is founded”. Reading the above quoted rule, it is clear that an appeal is against a decree or an order. Thus, failure to attach a decree to the memorandum of appeal offends the provisions of XXXIX, rule 1 of the CPC and renders the appeal incompetent. I uphold the first respondent’s second point of preliminary objection and hold the appeal incompetent. There is only one remedy for an incompetent appeal, which is to strike out the appeal, as I hereby do. Having found that the appeal is not properly before this Court, I do not find any reason to determine the merit of the appeal. Given the nature of this matter, I abstain from granting costs. I order accordingly. Dated at Babati this 6th day of November, 2024. John R. Kahyoza Judge 6 Court: Judgment delivered in absence of the parties as they could not connect to the virtual court. The first respondent logged in but he could not hear us nor could we hear him. B/C. Mr. Shadrack (RMA) present. John R. Kahyoza Judge 06. 11. 2024 7