Final Ruling Zawadi Maseke

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR-ES-SALAAM MISC. LAND APPLICATION NO. 5089 OF 2025 ZAWADI KAKUMBULA MASEKE……………………...…1ST APPLICANT LUCY AMBROSE OTTARU………………………………….2ND APPLICANT AMINIEL GABRIEL MUSHI……………………………..…3RD APPLICANT BRUNO SEVERINE RWENYAGIRA .............................4th APPLICANT SUBIRA AMBROSE OTTARU .....................................5th APPLICANT ABDALLAH HUSSEIN MUNISI ...................................6th APPLICANT DANIEL NICHOLAUS BOAS .......................................7th APPLICANT WENDLYNE GIBRIL MBAGGA ...................................8th APPLICANT IRENE JOHN CHIRWA ...............................................9th APPLICANT EVANS AIKAMBE MLAY ...........................................10th APPLICANT FAINESS JACKSON SIPEMBA ..................................11th APPLICANT JORAM MUSSA LUPANDE ……………………………....12th APPLICANT BEATHA MURU SHABAN ..........................................13th APPLICANT AMANI AMIR KITOJO ..............................................14th APPLICANT ALLY AL HADHIRI RIYAMI .....................................15th APPLICANT REHEMA SAPALI .....................................................16th APPLICANT 1 CECILIA KASSIM KIZEGA ......................................17th APPLICANT ATHUMANI MZAMILU ZODO ...................................18th APPLICANT PHILBERT MARCELI SHAYO ...................................19th APPLICANT JOSEPH BENEDICT LYAKURWA ..............................20th APPLICANT VICENT MKOMEZI ...................................................21st APPLICANT YUSUPH MRISHO RAJABU ......................................22nd APPLICANT LEAH JACOB MATIKU ..............................................23rd APPLICANT LAMECK ELIAS MIIKA ………………………………......24th APPLICANT FARUKI ISSA JABIRI ..............................................25th APPLICANT ANDREW WILSON LAWERE ....................................26th APPLICANT EDEN WILSON MACHA ............................................27th APPLICANT AMIDA BADRU ........................................................28th APPLICANT ANTUSA BONIFACE ………………………………….......29th APPLICANT RAYA SULEMAN MOHAMED ....................................30th APPLICANT STEPHEN LUGURU ...................................................31st APPLICANT GILBERT THOMAS MMASSY ...................................32nd APPLICANT PAULA PASCAL MCHENYA .......................................33rd APPLICANT VENANCE MWANJABALA .........................................34th APPLICANT HAMOUD SLEYYUM KHAMIS ...................................35th APPLICANT HABIBA YUSUPH JUMA ...........................................36th APPLICANT YOHANNA FILLPO MASAWAYAGA ..........................37th APPLICANT SHOMA ALLY SHINDANO ........................................38th APPLICANT JENIPHA JAMSON MWASHIGALA ...........................39th APPLICANT JAMES AUGUSTINO MBUYA ....................................40th APPLICANT ABDUL SAIDI MWICHANDE …………………………....41st APPLICANT 2 KASIAN COSTANTINO LUKANGA ............................42nd APPLICANT EDWIN STEPHEN BITESIGILWE .............................43rd APPLICANT EMMANUEL CYPRIAN SARARA ...............................44th APPLICANT JUMA HASSAN MAKORONGO ..................................45th APPLICANT CYRIL ONESMO MRINA ..........................................46th APPLICANT NICOLAUS BONIFACE CHANDE ..............................47th APPLICANT GOODLUCK JEROBOAM MANGIA ............................48th APPLICANT MSUSE WILLIAM MZIAJOSE ………………………......49th APPLICANT GABRIEL NZINGU ……………………………………......50th APPLICANT GOODLUCK DAUSON KABAGE .................................51st APPLICANT SONDA YUSUPH SHAABAN .....................................52nd APPLICANT LAURENT JOSEPH MWANSANGA ............................53rd APPLICANT IGAL HUBERTH MOSHI ……………………………….....54th APPLICANT IBRAHIM HALFAN MATUMLA ..................................55th APPLICANT DAVID C. LUBELEJE ………………………………….......56th APPLICANT ALEX MALIAK MARUNDA ........................................57th APPLICANT DANIEL PETER MADEHA .........................................58th APPLICANT EVANICE JOHN MSAKI ……………………………........59th APPLICANT PAUL HENRY GAGALA .............................................60th APPLICANT WILLIAM CHACHA GIRYAGO ..................................61st APPLICANT ESTER NAPACHO ....................................................62nd APPLICANT CHRISTOPHE A. MAFOLE ........................................63rd APPLICANT PETER D. SHIRIMA ……………………………………....64th APPLICANT JOHN JAMES OTTARU .............................................65th APPLICANT ELIAS RICHARD NDAHANI .....................................66th APPLICANT 3 JOSEPH MAKUTA MZIZIMA ....................................67th APPLICANT TIKE MWAKITWANGE .............................................68th APPLICANT ANGEL MTUI ...........................................................69th APPLICANT ALBIN BENEDICT ....................................................70th APPLICANT HAJI OMARY MDOE .................................................71st APPLICANT JUSTINE RUKIZA ISHEMWABURA ..........................72nd APPLICANT DANIEL SAIDI KIPINGU .........................................73rd APPLICANT ERICA SUMARY .......................................................74th APPLICANT JOCTAN ASUBITI MAHAPULA .................................75th APPLICANT ABDALLAH RASHID ANASSI ...................................76th APPLICANT NESTA RUGOSHOKA RUGAIGANISA .......................77th APPLICANT LINDA CHIZA ..........................................................78th APPLICANT WILLY LWIMIKO KIONA .........................................79th APPLICANT SHAGIHILU LUFULONDAMA ………………………......80th APPLICANT MISSANGA HUSSEIN MUJA .....................................81st APPLICANT JAMES MICHAEL OTTARU .......................................82nd APPLICANT THE BOARD OF REGISTERED TRUSTEES OF NEW LIFE IN CHRIST TANZANIA ……………………………………………........83rd APPLICANT AUGUSTA ZACHARIA NGONYANI ...........................84th APPLICANT ROSEMARY JOSEPH MATUMBA ..............................85th APPLICANT FATINA SALUMU MAINGO ......................................86th APPLICANT EMANUEL FABIANO NG'AIDA .................................87th APPLICANT VERONICA LAZARO KALENGA ................................88th APPLICANT FREDY OCTAVIAN MAKOTI .....................................89th APPLICANT SOPHIA SEBASTIAN …………………………………......90th APPLICANT 4 ABDALAH AHMED GONG'ONDO ..............................91st APPLICANT GEORGE WILLIAM MUGASA ...................................92nd APPLICANT TIMOTHY ABEL MDINKA .........................................93rd APPLICANT NATHAN MUTTA BAGIRI .........................................94th APPLICANT JUMA JASSON MAGAGALA ......................................95th APPLICANT ADELINA MTEI ........................................................96th APPLICANT MUSSA SAID ABDALLAH .........................................97th APPLICANT LIGHTNESS GASPER CHINE ....................................98th APPLICANT GRACE J SANGA ......................................................99th APPLICANT HILALI HASHIM MASUMAI ...................................100th APPLICANT FRANCIS MALUNDO KIGOMBA .............................101st APPLICANT ALFRED PATRICK NGOWI ....................................102nd APPLICANT VERSUS ABUBAKAR SHEBU MSHIHIRI……………………..…1ST RESPONDENT LILIAN CLEMENT MDOE……………………………..…2ND RESPONDENT COAST AUCTION MART COMPANY………………….3RD RESPONDENT RULING Date of last Order: 4/4/2025 Date of Ruling: 8/4/2024 LALTAIKA, J. 5 Before me is an objection proceeding brought under the provisions of Order XXI Rule 57(1) of the Civil Procedure Code, Cap 33 R.E. 2019 (the CPC). The Applicants are seeking an order for exclusion of their respective properties from the ambit of execution issued in Land Case No. 241 of 2015 and Execution No. 4 of 2024, contending that they were not parties to the suit that culminated in the decree, and that their lands are being wrongly subjected to attachment. A brief historical and contextual backdrop to connect the dots is, in my opinion, necessary at this stage. However, I will do this sparingly given the rather loose connection between the previous suit and this application as far as parties are concerned. The 1st and 2nd Respondents (Abubakar Shebu Mshihili and Lilian Clement Mdoe) are in-laws. Lilian was married to Abubakar’s brother Shaban Almas Sheshe Msagati who passed away in 1998. It is alleged that years earlier, between 1989 and 1992, Abubakar and Shaban had bought two large farms in Mapinga Village, Bagamoyo District, from the local Village Council.( Farm No. 1291 which measured 16.722 hectares, and Farm No. 1292 which was 4.676 hectares in size.) 6 It is alleged further that when Shaban died, and not long after, Abubakar had to take his wife abroad for medical treatment. In their absence, a group of people led by John Paul Lyimo took over both farms. In 2009, the same group of alleged intruders, led by Lyimo, filed a case of their own in this Court claiming the land belonged to them. However, midway through the process, they withdrew the case. Years passed. The intruders stayed put with no sign of refiling the case. Tired of waiting, Abubakar teamed up with Lilian to file a new case in 2015. Since the Defendants didn’t show up even after being summoned through the Mwananchi Newspaper, the court allowed the case to proceed ex parte. After a forceful submission by Mr. Tasinga, the court reviewed all the documents including land titles, letters of administration, and the criminal judgment and was satisfied that the Plaintiffs were indeed the rightful owners. The Court ruled in favour of Abubakar and Lilian, ordering the Defendants to vacate the land, demolish their structures, and stop any further interference. The Plaintiffs were also awarded the costs of the case. The said judgment in Land Case No. 241 of 2015 and Execution No. 4 of 2024, are the crux of this application. 7 The application was argued orally. The Applicants and the Respondents enjoyed the skillful legal services of Messrs. Halidi Sudi Lwebangira and Isaack Tasinga, learned Advocates, respectively. I take this earliest opportunity to register my commendations to the learned Advocates for their dedication and a commitment to timely dispensation of justice. Let me say albeit in passing that to prove their commitment, the learned Counsel prayed to proceed with hearing of the application even though it was scheduled for mention. The prayer was granted, and I needed to reciprocate by using most of my long weekend (Karume Day inclusive) to draft this ruling. The rest of this ruling is, in that order, a summary of submissions by Counsel, my analysis of the law and the verdict. Submitting in support of the application, Mr. Lwebangira stated that the Applicants were seeking its intervention to investigate the records and find that they were the rightful owners of the land situated at Kiharaka in Bagamoyo Urban, Coast Region. Counsel made it clear that the Applicants were not parties to Land Case No. 241 of 2015 nor to Execution No. 4 of 2024. He submitted that the application was 8 supported by a joint affidavit of the Applicants and prayed that the same be taken as part of their application. Counsel referred the Court to Order XXI Rule 58 of the Civil Procedure Code (supra), emphasizing that it places a duty on an applicant to prove ownership of the suit land and to also establish that at the time of execution or attachment, the applicant was in possession of the property. With respect to individual applicants, Mr. Lwebangira submitted that: The first applicant, Zawadi Maseke, owned a parcel of land measuring 1,050 square meters located at Kiharaka, Bagamoyo, which he acquired on 9th April 2011 from one Hamadi Nganda. The land, he said, was bordered by a Mtaa road to the East and South, Mr. Masawe to the West, and Mr. Venance and Tarimo to the North. He submitted that since the land was purchased, more than 14 years had elapsed without any dispute arising. A copy of the contract of sale had been attached to the application, and Counsel prayed that it be admitted as evidence. The second applicant, Lucy Ambroce Ottaru, was said to be the lawful owner of a surveyed plot, namely Plot No. 4, Block R, with Title 9 No. 170061, situated at Kiharaka Bagamoyo. Counsel referred the Court to a Certificate of Title attached as Exhibit KB2. The third applicant, Aminieli Gabriel Mushi, was submitted to be the owner of a surveyed land, Plot No. 580, Block S, Certificate of Title No. 23028 PWN, located at the same locality. The corresponding certificate had been attached as Exhibit KB3. As for the fourth applicant, Chrispo Hezron Gideon, Counsel submitted that he was the owner of Plot No. 443, Block R, located at Kiharaka Bagamoyo. Proof of payment for the Certificate of Title had been annexed as KB4. The fifth applicant, Bruno Severin Rwenyagila, was said to own Plot No. 489, Block R, bearing Certificate of Title No. 13604 PWN, and a copy of the CT had been annexed as Exhibit KB5. Regarding the sixth applicant, Subira Ambroce Otaru, Counsel informed the Court that she owned Plot No. 5, Block R, with Certificate of Title No. 170554 PWN, also located at Kiharaka Bagamoyo. A copy of the CT was attached as KB6. 10 The seventh applicant, Abdallah Hussein Munisi, was submitted to be the owner of Plot No. 533, Block R, although the Certificate of Title number was not known. However, a copy of the contract of sale had been included in the record. Mr. Lwebangira concluded by stating that the rest of the applicants were listed and described in the joint affidavit. On that basis, Counsel prayed that the execution order be exempted from attaching the Applicants' properties, on the ground that the Applicants were not parties to Land Case No. 241 of 2015, and that the judgment debtors in that case were not in possession of the suit land. Further, it was submitted that none of the Applicants held the property on behalf of the judgment debtors. Considering the above, Counsel prayed that the application be granted with costs. Mr. Tasinga, learned Counsel for the Respondents, began his submission by acknowledging the arguments advanced by the learned Counsel for the Applicants, but respectfully indicated that he would proceed differently. He used English throughout his submission unlike his learned brother who used mostly Kiswahili. 11 He submitted that the affidavit supporting the Respondents' position had been deponed by Abubakar Shebu Mshihili, Lilian Clemence Mdoe, and Pius T. Makundi, who trade under the name Coast Auction Mart Company. He prayed that the joint affidavit and its annexures be adopted as part of the Respondents' submission. Counsel informed the Court that both parties were in agreement that the matter before the Court was an objection proceeding filed under Rule 57(1) of Order XXI of the Civil Procedure Code (supra). He stated that upon reading the provision and its objective, it was the Respondents' understanding that the Rule empowers the Court to conduct an investigation concerning the property under attachment. He emphasized that the burden lies with the applicants, who must prove to the Court that the decree has been wrongly directed to property that is not liable for attachment. He further explained that this, in the Respondents’ view, was the spirit and clear intent of the provision. Counsel asserted that the Applicants had the duty to demonstrate, through their affidavits, that their alleged properties fall outside the boundaries of FARM NO. 1291 and FARM NO. 12 1292, both of which were covered under a Certificate of Occupancy issued in 1994. He maintained that the Applicants had failed to discharge this burden. Referring to paragraphs 106, 107, 108, and 109 of the Applicants' affidavits, Counsel highlighted two key assertions made by the Applicants: first, that they had been advised by their advocate that they were not parties to the land case, and second, that the only legal remedy available to them was through objection proceedings. Counsel strongly objected to this view. He submitted that merely stating that the Applicants were not parties to the original suit does not, in itself, confer an automatic right to institute objection proceedings. Rather, the law required that one who comes to Court by way of objection proceedings must prove that the attached property is not liable to attachment. Responding to the Applicant’s reliance on Rule 58, Mr. Tasinga submitted that this provision could not be read in isolation from Rule 57(1). In his view, the interpretation should follow the ejusdem generis rule, meaning that Rule 58 must be construed in harmony with Rule 57. He maintained that 13 one must also provide evidence showing that he was in possession of the land sought to be protected from attachment. He conceded that while it was true that the Applicants were not parties to the original suit, the Respondents opposed their chosen procedural path of filing objection proceedings. According to him, the appropriate legal avenue available to the Applicants would have been to pursue revision proceedings, which would allow the revising court to consider altering the judgment. However, Counsel argued that objection proceedings do not permit the Court to alter or nullify a prior decree, and allowing such would render the decree inexecutable, which was not the legislative intent. He added that this interpretation had consistently been upheld by the Courts. In support, he cited the Court of Appeal decision in Ally Copar (OMSA) v. Hurbart Marwa and 4 Others, Civil Application No. 34 of 2013, wherein at page 7, the Court stated that “the applicant who had interest in the suit land and could not appeal could competently move this court for revision under section 4(3) of the Act.” 14 Counsel clarified that the reference was made under the Appellate Jurisdiction Act, which recognizes revision as the appropriate remedy in such cases. Considering the above authority and reasoning, Mr. Tasinga submitted that the Applicants had misdirected themselves by approaching the Court through objection proceedings rather than pursuing revision. Turning to the second issue, he challenged the reliability of the Applicants’ affidavits. He noted that all the Applicants had acquired their land as late as 2017, 2022, or even 2024. While some claimed to possess registered titles, Counsel insisted that such titles could not prevail over the Respondents' earlier title obtained in 1994, invoking the priority principle. According to Counsel, this principle dictates that a latecomer cannot obtain a better title than one acquired earlier. In support, he cited the decision of this Court in Leonard Shayo v. Emanuel Letoo Laizer and 4 Others, Land Appeal No. 56 of 2023 (TANZLII), in which it was held that in cases of double allocation, no valid title can be transferred to a subsequent transferee. He further relied on the Court of Appeal 15 decision in Ombeni Kimaro v. Joseph Michili t/a Catholic Charismatic Renewal, Civil Appeal No. 33 of 2017, specifically at pages 14 and 16, reinforcing that subsequent allocations cannot defeat prior legal interests. In conclusion, Mr. Tasinga submitted that the only basis upon which the Court could entertain an objection proceeding is if the applicant successfully demonstrates that the property is not liable to attachment. He contended that the Applicants had failed to prove this. Consequently, he maintained that Farm Nos. 1291 and 1292, within which the Applicants’ properties were located, remained the subject matter of the decree, and that all Applicants were liable to eviction therefrom. He quickly added that even if the Applicants chose to file revision proceedings instead, they would ultimately fail because of the priority principle, which weighed in favor of the Respondents. In his brief rejoinder, Mr. Lwebangira strongly objected to the Respondents’ argument that the Applicants ought to have come before the 16 Court by way of revision. He submitted that such an interpretation was misguided. Counsel maintained that the rationale behind objection proceedings under Order XXI Rule 57 of the Civil Procedure Code was to provide a third party with an opportunity to challenge the attachment of property. He emphasized that this rule vests jurisdiction in the Court to entertain such objections. He further pointed out that under Rule 58, the only burden placed upon the objector is to establish an interest in the property and to demonstrate that he is in possession of it. Mr. Lwebangira noted that the suit property in question was indeed the place of residence of all the Applicants. He also objected to the Respondents’ argument that the Applicants, having acquired their land between 2017 and 2024, were barred from asserting their claims under the priority principle. He contended that the Applicants held valid titles, and that such titles were sufficient to prove their interest in the property under attachment. 17 I have dispassionately considered the rival submissions and thoroughly examined the authorities cited in the light of the provisions of the law. I have distilled the following key issues for determination: 1. Whether this Court is properly moved under Order XXI Rule 57(1) of the Civil Procedure Code. 2. Whether the Applicants have satisfied the legal requirements to warrant exclusion of their properties from execution. 3. Whether the principle of priority extinguishes the Applicants' interests. On the first issue, there is no doubt that this application is brought under Order XXI Rule 57(1) of the CPC, which provides for investigation of claims and objections to attachment of property in execution of decrees. The Rule reads: “Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit.” This provision is clear and does not exclude any non-party from raising objection, provided they allege an interest in or possession of the attached 18 property. The Respondents argue that the Applicants ought to have pursued revision instead, relying on the Court of Appeal decision in Ally Copar (OMSA) (supra). With due respect to Mr. Tasinga, while the revision route is an available remedy in circumstances where a person aggrieved by a judgment has no right of appeal, it is not exclusive, especially where the claim pertains to protection of property rights in execution proceedings. In the instant matter, the Applicants are not seeking to challenge the correctness of the decree per se, but rather to protect properties which they allege were not involved in the main suit. I am persuaded by the submission of Mr. Lwebangira’s argument that Order XXI Rule 57 vests jurisdiction in this Court to entertain claims and objections of third parties. Consequently, I find that the objection proceedings were properly initiated before this Court. This brings me to the second issue namely whether the Applicants have satisfied the legal requirements to warrant exclusion of their properties. The legal standard under Order XXI Rule 58 of the CPC is that the objector 19 must prove his interest in the property and that he was in possession at the time of attachment. The relevant rule states: “The claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached.” From the joint affidavit and annexures, each of the Applicants has attempted to demonstrate ownership and possession over individually demarcated and registered plots at Kiharaka, Bagamoyo. For instance: • The first Applicant purchased his plot in 2011 and has occupied it for over 14 years. • Others such as the second to sixth Applicants have produced Certificates of Title, indicating legal ownership of their surveyed plots. • The seventh Applicant provided a contract of sale. Counsel for the Respondents argued that the Applicants have not discharged the burden to show that their properties are outside the coordinates of Farm No. 1291 and No. 1292. I agree with Mr. Tasinga that the burden of proof is on the objectors. However, they present prima facie proof (titles, contracts, possession). This being a summary suit, such proof is sufficient to move this court. Accordingly, I find that the Applicants have demonstrated sufficient interest and possession over their respective 20 properties and that there exists a genuine factual dispute as to whether those properties were part of the original subject matter of Land Case No. 241 of 2015. On the 3rd issue, Counsel for the Respondents Mr. Tasinga argued that the Applicants' rights, if any, are inferior to that of the Respondents by virtue of the priority principle, as the Respondents' occupancy stems from a certificate issued in 1994. He cited Leonard Shayo v. Emmanuel Letoo Laizer (Supra) and Ombeni Kimaro v. Joseph Michili in support of this principle. I cannot overemphasize that the core inquiry here is not whose title is better, but whether the attached property belongs to the judgment debtor or is wrongly being attached as belonging to an innocent third party. The doctrine of priority, while well settled in cases involving competing registered titles, is of limited applicability in execution proceedings under Order XXI. The Applicants are not suing for declaration of title; they are seeking protection of their property from execution of a judgment to which they were not party. 21 To this end, the applicability of the priority principle is premature, unless and until a formal suit on ownership is instituted. The present objection proceedings are summary in nature, designed only to prevent abuse of execution processes. The titles and contracts submitted are sufficient for this purpose. In view of the foregoing analysis the objection proceedings are hereby allowed. I hereby direct that the properties described by the Applicants in their supporting affidavit and annexures be excluded from attachment and execution under Execution No. 4 of 2024 arising from Land Case No. 241 of 2015. Costs shall be awarded to the Applicants. It is so ordered. E.I. LALTAIKA JUDGE 08.04.2025 Court: Ruling delivered in Open Court this 8th day of April 2025 at 14:45 in the presence of Mr. Halidi Sudi Lwebangira, learned Advocate for the Applicants, the Applicants and the Respondents who have appeared in person. 22