VENASTICA DANIEL MASINJISA Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA LAND APPEAL NO. 112 OF 2023 (Arising from the decision of the District Land and Housing Tribunal for Dodoma at Dodoma in Misc. Land Application No. 112 of 2023 dated 25th September, 2023, Originating from Misc. Land Application No. 07 of 2020 before DLHT) VENASTICA DANIEL MASINJISA……………………………………………APPELLANT VERSUS ALLY YAHYA KASSIMU……………………………………………………..RESPONDENT JUDGEMENT Date of last Order: 12th November, 2024 Date of Judgement: 13th December, 2024 E.E. KAKOLAKI, J. In this appeal the appellant is discontented with the decision of the District Land and Housing Tribunal of Dodoma at Dodoma (the DLHT) in Misc. Land Application No. 112 of 2023 handed down on 25 th September, 2023, 1 dismissing his application for stay of execution. He has expressed his dissatisfaction in three (3) grounds of appeal as stated hereunder: 1. That, the Honourable Chairman erred in law and in fact in deciding and issuing an order that tribunal has no jurisdiction to entertain the application for stay of execution. 2. That, the Honourable Chairman erred in law and in fact in deciding that the proper Court to stay the proceedings of District Land and Housing Tribunal is the Court of Appeal. 3. That, the Honourable Chairman erred in law and facts in determine an issuing the decision which is contrary to the law. The facts leading to the present appeal as garnered from the evidence are going thus; the appellant herein applied before the DLHT for Dodoma at Dodoma in Misc. Land Application No. 112 of 2023, for an order of stay of execution where the respondent herein raised a preliminary objection contending that, the applicant having lodged a Notice of Appeal before the Court of Appeal, the Tribunal was not seized with jurisdiction to entertain the application for stay of execution before it. As lucky was not on his side the Tribunal sustained the said preliminary objection reasoning that, much as a 2 Notice of appeal was already lodged with the Court of Appeal the Tribunal ceased to have jurisdiction to entertain the matter before it. It thus proceeded to dismiss the application while ordering the appellant to bear costs of the suit. It is that decision which seem to have displeased the appellant and forced him to bring this appeal on the above stated grounds. When the appeal was called on for hearing the appellant appeared represented by Ms. Catherine Wambura, learned advocate while the respondent enjoying the service of Mr. Ditrick Mwesigwa, learned advocate and both parties were ordered to argue it by way of written submission, the order which was complied with save for the appellant who found no reason to rejoin to the reply submission by the respondent. In her submission Ms. Wambura chose to consolidate and argue all the three grounds of appeal jointly and together. It was her argument that, the Tribunal having declared herself to have no jurisdiction to entertain and hear the application for stay of execution after being notified of the notice of appeal duly lodged with Court of Appeal ought to have ceased or stayed execution proceedings before it until finalization of the said appeal, but surprisingly went on dismissing the said application for stay of execution and continued to entertain the proceedings for execution 3 contrary to what was required of it to do. She supported her argument with the case of Milcah Kalondu Mrema vs Felix Christopher Mrema, Civil Appeal no 64 of 2011 (unreported), where the Court held that, once a notice of appeal is lodged with the Court of Appeal the High Court ceases to have jurisdiction over the matter. According to her similar stance was taken by Court of Appeal in the case of Exaud Gabriel Mmari Vs. Yona Seti Akyo & 9 Others, Civil Appeal No. 91 of 2019 (CAT-unreported), which cited the case of Arcado Ntagazwa Vs. Buyogera Bunyambo (1997) T.L.R 242, Tanzania Electric Supply Company Limited Vs. Dowans Holdings S.A (COSTA RIZA AND DOWANS TZ LTD (TZ), Civil Application No. 142 of 2012 (CAT – unreported) and Serenity on the Lake Ltd Vs. Dorcus Martin Nyanda, Civil Revision No. 1 of 2019 (CAT-unreported) Tanzlii. In his reply submission Mr. Mwesigwa, for the Respondent noted with concern that the whole submission and authorities cited by the appellant are in full support of the impugned decision that, once a notice of appeal is filed with the Court of Appeal, the lower court ceases to have jurisdiction over the matter. Basing on appellant’s submission and the decisions of this Court and that of Court of Appeal in Tanzania Electricity Supply Company limited 4 vs Dowans Holdings SA (Costa Rica) Civil Application No. 142 of 2012 (CAT- unreported), the learned counsel prayed this Court to dismiss the appeal with cost for lacking merits. I have dispassionately considered the submissions by the parties, in which the issue for determination by this Court is whether this appeal has merit. I find no difficulties in responding to the issue as both parties are at one on the obtained position of the law that, once a notice of appeal is lodged with the Court of Appeal the High Court or any other lower court ceases to have jurisdiction over the matter. This settled position of the law finds its stem in countless number of decisions of this Court and Court of Appeal such as Arcado Ntagazwa (supra), Tanzania Electric Supply Company Limited (supra) and Serenity on the Lake Ltd (supra). In the case of Tanzania Electric Supply Company Limited (supra) the Court of Appeal had the following to say on the jurisdiction of lower court once a notice of appeal is lodged with it: ’’All said and done, we have found ourselves constrained to hold that although the High Court still retains its inherent powers to grant stay, orders pending appeals to this court, it ceased to have such powers or jurisdiction once a notice of appeal is lodged in accordance with the governing provisions 5 of the rules. It was, therefore, legally wrong for the applicant to seek a stay order on the high court.’’ Much more interpolation was rendered by the Court of Appeal in the case of Serenity on the Lake Ltd (supra) where the Deputy Registrar entertained the application for stay of execution in pendency of the notice of appeal to Court of Appeal and the Court held the view thus: ’’…we are settled in our minds that the Deputy Registrar, of the High Court (Labour Division) did not have jurisdiction to hear and order stay of execution and at the same time order the applicant to deposit a sum of Tshs. 2,500,000/= to that court as security for the due performance of the decree in Revision No. 24 of 2017 while already there was a Notice of Appeal filed in this Court. That order had no backing of the law. What he was supposed to do after realizing that there was a pending appeal before this Court was to halt the proceedings and pave way for the appeal process to proceed. By entertaining the application for stay of execution while there was a pending notice of appeal lodged in this Court, the Deputy Registrar slipped in an error for lack of jurisdiction. The order was therefore unlawful.’’ On the strength of the above settled principle of the law that, an application for stay of execution cannot be entertained by the Court or Tribunal pending 6 a Notice of appeal lodged with the Court of Appeal on the ground that the jurisdiction to so do is seized with Court of Appeal where the appeal rests, and given the undisputed fact that, in this matter there is a pending appeal by the appellant before the Court of Appeal after lodging the notice of appeal, I find this Court suffers deficiency of grounds to fault the decision of the DLHT for Dodoma at Dodoma in Misc. Land Application No. 112 of 2023 that, it had no jurisdiction to entertain appellant’s application for stay of execution. I therefore for that reason find the appeal is without merit on all three grounds of appeal. The above findings notwithstanding Ms. Wambura, for the appellant advanced an argument that, the trial Tribunal having appreciated that had no jurisdiction to entertain an application for stay of execution ought not to have gone further to entertain an application for execution pending before it. With due respect to the learned advocate, I believed she missed a point and argued off line as the issue of the Tribunal to proceed with hearing and determination of application for execution never formed part of the impugned decision nor grounds of appeal. It is trite law that, appellate court cannot deal with issues not raised and decided before the trial court or the first appellate court. This was the position in the case of Farida and 7 Another Vs. Domina Kagaruki, Civil Appeal No. 136 of 2006 (CAT Unreported), where the Court of Appeal held that- "It is the general principle that the appellate court cannot consider or deal with issues that were not canvassed, pleaded and not raised at the lower court." In view of the above legal stance, I disregard the issue raised and argued by Ms. Wambura as it was not raised by the parties during the trial and determined by the trial Tribunal. That takes this Court to the conclusion that, the District Land and Housing Tribunal was legally justified when refused to entertain applicant’s application for stay of execution on the ground of pendency appeal before the Court of Appeal originating from the same matter. The above finding notwithstanding, it is was also noted after perusal of the impugned ruling and in the course of writing this Judgment that, the trial Tribunal having found itself to have lacked jurisdiction to entertain the application for stay of execution proceeded to dismiss it. Parties were therefore invited to address the Court on it and the glaring issue before the Court was whether it was proper for the trial Tribunal to dismiss the application on the ground that it lacked jurisdiction to entertain it. In 8 addressing the Court both parties were in equal terms that, the trial Tribunal ought to have struck it out instead of dismissing the same for not being heard on merit. I totally agree with the submission by both legal minds since the law on when the matter is dismissed or struck out is well settled as stated in the cases of Ngoni- Matengo Cooperative Marketing Union Ltd Vs. Ali Mohamed Osman (1959) EA 577 and Cyprian Mamboleo Hizza Vs. Eva Kiosso and Another, Civil Application No. 3 of 2010 (CAT-unreported). As to when the matter can be dismissed or struck out, the Court in the case of Ngoni- Matengo Cooperative Marketing Union Ltd (supra) had the following observation to make: ’’...This court, accordingly, had no jurisdiction to entertain it, what was before the court being abortive, and not a properly constituted appeal at all. What this court ought strictly to have done in each case was to ‘'strike out" the appeal as being incompetent, rather than to have "dismissed" it: for the latter phrase implies that a competent appeal has been disposed of, while the former phrase implies there was no proper appeal capable of being disposed of.’’ Applying the above principle of the law to the facts of this matter where the application was dismissed on the mere ground that the trial Tribunal was not 9 seized with jurisdiction to entertain it, I find the dismissal order was wrongly entered as the proper order on the findings of want of jurisdiction was to strike out the matter. In view of the above then I proceed to quash and set aside the dismissal order and substitute the same with an order for striking out the application for want of jurisdiction. Save for the substitution, the trial tribunal's decision is upheld. I find no merit in this appeal as the same is hereby dismissed with costs. It is so ordered. Dated at Dodoma this 13th day of December, 2024. E. E. KAKOLAKI JUGDE 13/12/2024. Court: The Judgment has been delivered at Dodoma today on 13 th day of December, 2024, in the presence of Mr. Elias Machibya, advocate for the applicant, Mr. George Vedasto, advocate for the Respondent and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI 10 JUGDE 13/12/2024. 11