Fatuma Mohamed vs Chausiku Selema (Civil Appeal No. 282 of 2023) [2025] TZCA 876 (21 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: WAMBALI. J.A.. MGONYA. J.A. AND FELESHI. J.A^ CIVIL APPEAL NO. 282 OF 2023 FATUMA M OHAM ED....................................................................APPELLANT VERSUS CHAUSIKU SELEM A ....................... ........................................ RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Mwanza) fEbrahim. 3.^ dated the 8th Day of April, 2016 in Land Case No, 13 of 2012 JUDGMENT OF THE COURT 6th & 21st August, 2025 FELESHI. 3.A.: This is an appeal against the Judgment and Decree of the High Court of Tanzania at Mwanza dated 8.4.2016 in Land Case No. 13 of 2012 which dismissed the appellant's case with costs. The brief background giving rise to this appeal is that on 1.11.2005 Fatuma Mohamed, the appellant, instituted Land Application No. 207 of 2005 before the District Land and Housing Tribunal (DLHT) for Mwanza against Chausiku Selema, the respondent. In that

application, she sought orders for: being declared a lawful tenant of the Mwanza City Council in Kiosk No. 19 Makoroboi Street, Mwanza; vacant possession of the suit premises; payment of mesne profit to the tune of TZS. 3,900,000.00; costs; and, any other relief the DLHT could deem fit to grant. Following the hearing, despite the respondent's objection, the DLHT granted the applicant's application with costs. Not amused by the DLHT decision, the respondent successfully challenged it before the High Court in Misc. Land Appeal No. 27 of 2012. On 16.5.2012, the High Court nullified the DLHT's proceedings and ordered Land Application No. 207 of 2005 to be heard de novo before another competent Chaiperson. On 30.5.2012, instead of complying with the High Court decision, the appellant instituted a new case, Land Case No. 13 of 2012, in the High Court against the same respondent, over the same subject matter, and with a similar cause of action. The main difference in the new case was increased rent arrears from TZS 3,900,000.00 to TZS 73,200,000.00 covering a longer period from July 2001 to 12.5.2012. During the hearing at the High Court, the appellant testified as PW1 and tendered Exhibit PI, a tenancy agreement, and Exhibit P2, a bundle comprising the letter of administration of estate of her deceased

husband (Yahya Mohamed) and the lease agreement between the deceased and the Municipal Council. Her testimony was supported by PW2 who confirmed witnessing the sublease agreement. On her party, the respondent, testified as DW2 and denied the claim. She contended that, soon after learning that the Kiosk belonged to the Mwanza Municipal Council, she began paying her rent directly to it. She tendered Exhibit Dl, a set of receipts evidencing her rent payments to the Mwanza Municipal Council. DW1, a Trade Officer from the Mwanza Municipal Council corroborated her testimony adding that, the lease agreement prohibited subleasing the Kiosk to another person. After a full trial, the High Court dismissed the appellant's case for want of merit. Aggrieved, she preferred this appeal through a memorandum of appeal containing thirteen (13) grounds of appeal. However, for reasons that will shortly become apparent, we find it unnecessary to reproduce them. At the hearing of the appeal, the appellant appeared in person, unrepresented, whereas the respondent enjoyed the services of M r. Deocres Rutahindurwa, learned advocate. While the appellant had filed her written submission in support of her appeal pursuant to rule 106 (1) 3

of the Tanzania Court of Appeal Rules, 2009 (the Rules), M r. Rutahindurwa sought leave to present his oral arguments in reply under rule 106 (12) of the Rules. When invited to address the Court in support of her appeal, the appellant adopted her written submission and beseeched the Court to consider it and allow her appeal. Besides, before inviting the respondent, the Court asked her to address it on one specific issue, namely: whether before instituting Land Case No. 13 of 2012 on 30.5.2012 she had complied with the High Court's order dated 16.5.2012 in Misc. Land Appeal No. 27 of 2012 which directed Land Application No. 207 of 2005 to be heard de novo before another competent Chairperson. In reply, the appellant confirmed that the order for retrial still subsists. She explained that she filed Land Case No. 13 of 2012 before the High Court upon advice that the DLHT lacked jurisdiction due to an increase in the rent arrears. Nonetheless, the appellant urged the Court to determine the appeal based on her written submission on the argument that the High Court properly dealt with the case. On his part, M r. Rutahindurwa began by addressing the Court's query and submitted that the High Court's order for retrial of Land

Application No. 207 of 2005 by another DLHT's Chairperson had not been vacated and remained valid. As such, he contended, the institution of Land Case No. 13 of 2012 was improper and rendered the subsequent proceedings and resultant orders by the High Court a nullity. He accordingly urged the Court to nullify the proceedings. Mr. Rutahindurwa then replied to the appellant's grounds of appeal, as argued in her written submission, in seriatim. However, for reasons of convenience, we deem it inapt to delve into the parties' submissions on the merit of the appeal before disposing of the issue of propriety of the Land Case No. 13 of 2012 from which this appeal arises. In other words, the main issue for determination at this juncture is whether the High Court was vested with jurisdiction to entertain Land Case No. 13 of 2012 in light of its subsisting order requiring a retrial of Land Application No. 207 of 2005 by the DLHT for Mwanza by another competent Chairperson. To appreciate how the High Court (Sumari, J. as she then was) dealt with and disposed of the Misc. Land Appeal No. 27 of 2012, we let part of the ruling dated 16.5.2012 speak for itself as detailed below: "As correctly put ; the proceedings o f the trial tribunal shows clearly that the tribunal violated 5

the above proceedings. This violation in taw vitiates the whole proceedings and judgment o f the trial tribunal. As such the whole proceedings are null and void under the law. Consequently, I nullify whole proceedings and judgment...and I proceed on ordering for a case to start denovo before another competent chairperson. The appeal is therefore "[emphasis added.] As alluded to earlier, the appellant disregarded the retrial order and opted to file a fresh suit, Land Case No. 13 of 2012, before the same court. She intimated that, she did so upon advice that the DLHT lacked jurisdiction due to an increase in rent arrears. The record of proceedings of the High Court is clear that the respondent had challenged the competency of the new suit by pleading pleas of res judicata and res sub judice. The respondent argued that the previous order did not vacate the existing pleadings and that the appellant's action violated the retrial order. On her part, the appellant countered that the previous proceedings were nullified entirely, rendering the doctrines inapplicable. She contended that there was no pending matter or decision to bar a fresh claim. The High Court ultimately agreed with the appellant's arguments, overruled the

objection, and proceeded to hear the suit on its merits, ultimately dismissing it. We respectfully decline the High Court resolution (Mwangesi, J. as he then was) on the raised preliminary objection above. That was not novel legal matter. A similar scenario was encountered in the case of Karori Chogoro v. W aitihache Merengo, Civil Appeal No. 164 of 2018 [2022] TZCA 83 (1 March 2022, TANZLII). In that case, the proceedings began at the Buswahili Ward Tribunal in Application No. 9 of 2014 where Karori Chogoro, the appellant, sued Waitihache Merengo, the respondent. The appellant lost his case and instituted Appeal No. 236 of 2014 in the District Land and Housing Tribunal which at the end nullified the Ward Tribunal's proceedings and ordered a retrial. However, instead of going for a retrial, on 22.7.2015, the respondent, this time not the appellant, instituted a fresh case, Land Application No. 93 of 2015 before the same Tribunal, concerning the same land. The respondent, former appellant, raised a preliminary objection, arguing that the case should have been remitted for retrial. The Chairman dismissed the preliminary objection and proceeded with the hearing. On 15.4.2016, the Tribunal dismissed it and declared the respondent the lawful owner of the land. In addressing this scenario, the Court held that:

"With due respect to the Chairman, what he did was incorrect as his pending order o f 28th May, 2015 in Appeai No. 236 o f 2014 was still valid and has not been complied with. Compliance with the order is essential and in the circumstance what was expected from him, was to make sure the record has been remitted back to the Ward Tribunal, and his order has been complied with. This Court has time without number underscored compliance to Court orders. In its persuasive decision, the High Court, in TBL v. Edson Dhobe, Miscellaneous Civil Application No. 96 o f 2006\ stressing on compliance to a court order, stated: "Court orders should be respected and complied with. Courts should not condone such failures. To do so is to set bad precedent and invite chaos. This should not be allowed to occur...." Like any lawful court order, including Tribunal are equally to be complied with. This was not observed by the Chairman, who opted to entertain a new suit on the pretext o f pecuniary jurisdiction, as shown on page 9 o f the records o f appeal." [Emphasis added.] 8

Similarly; in CRDB Bank PLC v. Heri Microfinance Limited & Another, Civil Appeal No. 20 of 2020 [2024] TZCA 202 (19 March 2024, TANZLII), citing Olam Tanzania Limited v. Halawa Kwilabya, Civii Appeal No. 17 of 1999 (unreported), the Court reiterated that: " . . . Court orders are made in order to be implemented; they must be obeyed. I f orders made by courts are disregarded or if they are ignored, the system o f justice will grind to a haif or it will be so chaotic that everyone will decide to do only that which Is conversant to them... Courts o f law should always control proceedings, to allow such an act is to create a bad precedent and in turn invite chaos. "[Emphasis supplied.] In the appeal under our consideration, after the High Court (Sumari, J.) had in Misc. Land Appeal No. 27 of 2012 ordered the Application case to be remitted to the DLHT, in the subsequent suit it ought to have found that Land Application No. 207 of 2005 was not struck out from the DLHT registry. The High Court had only nullified the proceedings. Thus, the parties had to comply with retrial order by returning to the DLHT to have their dispute resolved. 9

In the circumstances, we find that, it was not open to the same High Court to proceed with the case with same parties and the same cause of action. That is because, in essence the High Court was made functus officio by its previous order. In Karori Chogoro v. Waitihache Merengo (supra), we said: " We are certain that the order made on 2&h May, 2015, was final in disposing o f the case, as it nullified the proceedings, quashed the decision, set aside the order, and ordered retrial de novo. This inevitably made the Chairman functus officio , meaning he couid not entertain the same parties over the same subject matter. A t the same time, there was his own pending order, waiting compliance, the order which has not been challenged to date." [Emphasis supplied.] In the same vein, we find that, as the High Court lacked jurisdiction to entertain Land Case No. 13 of 2012, the proceedings and all consequential orders arising therefrom were a nullity. The order of the High Court in Misc. Land Appeal No. 27 of 2012 remained intact. 10

In the upshot, pursuant to section 4 (2) of the Appellate Jurisdiction Act, Chapter 141, we hereby revise and nullify the proceedings, quash the judgment and set aside the decree of the High Court in Land Case No. 13 of 2012. Each party shall bear her own costs. DATED at DODOMA this 15th day of August, 2025. F . L. K. WAMBALI JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment is delivered this 21st day of August, 2025 in the presence of the Appellant and Respondent in persons both through virtual court, is hereby certified as a true copy of the original. li