Mohamed Ally vs Masesa Ally (Civil Appeal No. 607 of 2023) [2024] TZCA 802 (22 August 2024)

IN THE COURT OF APPEAL OF TANZANIA ATTABORA ( CORAM: LILA, J.A., FIKIRINI. J.A., AND RENTE. J.A.^ CIVIL APPEAL NO. 607 OF 2023 MOHAMED ALLY . .......... .... ...... .... .... APPELLANT VERSUS MASESA ALLY.................. ........... ........... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) fBahati. 3 .^ dated the 3r dday of September, 2021 in Land Appeal No. 16 of 2019 JUDGMENT OF THE COURT 14th & 22n d August 2024 LILA, 3.A.: Masesa Ally, the respondent, instituted Application No. 12 of 2010 before Kaliua Ward Tribunal (the Trial Tribunal) claiming for recovery of a piece of land sometimes called a plot the size of which was’ not explained against the appellant who had trespassed onto it and made some developments. She was dedared the rightful owner and the appellant was ordered to give vacant possession. Her effort to have the Ward Tribunal decree executed by the OLHT was thwarted on the basis that Anzuruni

Mrisho Mlela and Iddi Shabani Simba were contesting over the same land in Land Case No. 30/2011. She successfully appealed to the High Court but the appellant was aggrieved leading to the lodgment of this appeal. The record reveals that, while the appellant was processing the appeal, the respondent approached the District Land and Housing Tribunal for Tabora at Tabora (the DLHT) and lodged Application No. 88 of 2013 seeking to execute the trial Tribunal decree, In what seems to be a surprise to her, the DLHT declined to proceed with execution process. Given its significance in the determination of this appeal, we painstakingly quote it as hereunder:- "ORDER The execution cannot be carried out because Anzuruni Mrisho Mfeia who sold land to thejudgment debtor who won the matter on the same iand against Idd shabani simba who soid iand to the judgment debtor. This was in Land Case No. 30/2011 between Anzurun Mrisho Mfeia against Idd Shabani Simba. Therefore, for the above reasons, the application for execution is non maintainable. Order accordingly . "

This order triggered an appeal by the respondent to the High Court in Miscellaneous Land Appeal No. 16 of 2019 raising these two grounds of complaints: - "1. That, the Honourable Chairman o f the District Land and Housing Tribunal for Tabora grossly erred both in law and in fact for refusing to hear an application for execution no. 88 of 2013 on the unjustified reason that there is another appeal in the same tribunal between Anzuruni Mrisho Mlela and Idd Shabani Simba who were not part in the original Land Case No. 12/2020. 2. That, the Honourable Chairman o f the District Land and Housing Tribunal for Tabora grossly erred in law and in fact for disregarding the judgment o f the KaHua Ward Tribunal for Kaliua in Land Case No. 12/2010 that declared the appellant herein to be the lawful owner o f the land in dispute. In that appeal, the respondent prayed for these orders: - "i. That order o f the Honourable Tribunal in Land Application No. 88/2013 be quashed and set aside. 3

//' That, the appellant be allowed to execute the decree given to her in the Land Application No. 12/2020 o f Kaliua Ward tribunal for Kailua. H i. That the respondent to pay costs o f this appeal. iv. That, any other reliefthe Honourable courtmay deem fit andjust to grant." The record bears out further that/ after hearing the parties' submissions, the High Court made two legal pronouncements, that the appellant did not appeal against the Trial Tribunal decision in terms of section 19 of the Land Disputes Courts Act, Cap 216 (the Act) and that, Land Appeal No. 30 of 2011 between Anzurun Mrisho Mlela and Idd Shabani Simba had no relevance with the dispute between the parties herein and could not act as a bar to execution proceedings. In the due course, too, the learned judge expressed her view that the Trial Tribunal was right to hold that the respondent, being the first person to buy the land, is the rightful owner. In her own words, the learned judge's conclusion was that: - "In the upshot, after carefully review (sic) the evidence on records and submissions made by both parties, I hesitate to agree with the position maintainedby the District Land and Housing tribunal. The court does not find any reason to depart from

the reasoning o f the Ward tribunal thatthe first buyer is the one that has right In the same vein, the decision o f Land Application No. 88/2013 is quashed and set aside and I uphold the decision o f the Ward Tribunal, with costs." That decision aggrieved the appellant prompting him to lodge the present appeal advancing these two grievances: - "1. That, on account o f the evidence on record, the learnedjudge misdirected herselfboth in law and in fact to hold that she did not agree with the position o f the District Land and Housing Tribunal even without adducing any reason. 2. That, while there is evidence on record that Land Application No. 88/2013 had merit as the execution mentioned therein it was impossible to take place, the learnedjudge erred in la w and fact to quash and set aside the same." Optimistic of the appeal succeeding, the appellant prayed for an order that the decision of the High Court in Land Appeal No. 16 of 2016 be reversed with costs. Both parties appeared before us for hearing in persons and were unrepresented. Whereas, the appellant relied on the written submissions he

had earlier on lodged in Court and had nothing to add, the respondent exercised her right to respond orally before the Court. In his written submission, the appellant's arguments in respect of ground one of grievance were that the respondent's bare words without any documentary support could not prove ownership of land citing the case of Salum Mateyo vs Mohamed Mateyo [1987] TLR 111. It was also his submission that the respondent failed to bring witnesses to prove how she acquired ownership of the suit land. Brief and focused, the respondent urged the Court to allow her to proceed with execution of the Trial Tribunal decree against which no appeal laid to the DLHT by the appellant and the High Court blessed the execution process to proceed by evicting the appellant from the suit land which he now occupies. She further contended that, although the learned judge touched on the issue of ownership, it was not a subject of her appeal before her. The respondent's arguments begged for a response by way of rejoinder from the appellant who, before us, he conceded that he did not appeal against the Trial Tribunal decision which inaction was caused by the DLHT's direction following itsfinding that Anzurun Mrisho Mlela who sold the

suit land to him won the appeal against Idd Shabani Simba who sold the same disputed land to the respondent Having realized that the one who sold to him the suit land won the case, he believed that he also lawfully owned the suit land and was surprised by the High Court decision declaring the respondent a lawful owner on the basis of being the first buyer. In ground two, the appellant contended that the appellant challenged the application for execution lodged by the respondent because she did not abide with the conditions set forth under Order XXXIX Rule 5(1)(2) and 3(a)(b) of the Civil Procedure Code Cap. 33 of the Laws (the CPC) for grant of execution but the learned judge did not address herself to it. As our starting point, we wish to state outrightly that the above detailed summary of the background giving rise to this appeal is not without a purpose. It clearly articulates that before the DLHT was Application No, 88/2013 for execution lodged by the respondent. That was the pleading before the learned judge. Trite principle of pleadings is that not only the parties, but also the learned judge, is bound to determine issues raised in the pleadings by the parties, between the parties to the matter before a judge or magistrate and also grant reliefs sought therein only. [See,

Christopher Gasper and 144 Others vs Tanzania Ports Authority, Civil Appeal No. 84 of 2016 (unreported)]. In the instant case, as indicated to above, the learned judge was enjoined to determine whether the DLHT had legal justification to decline to grant the application for.execution and ensure the Ward Tribunal decree was executed so as to enable the respondent reap the fruit of litigation. The rightful owner of the suit land, as was rightly argued by the respondent, had already been determined by the Trial Tribunal. That said, it is obvious that the learned judge strayed into error, ones again, to determine who was the lawful owner and declare the respondent the lawful owner of the suit land for the reason that she was first to buy it. There was no appeal before her and the appellant, was absolute that he did not appeal and the record of appeal supports so. The declaration was unwarranted as the respondent did not even seek for such relief. Accordingly, we quash and set aside that declaratory order. Had the appellant been interested to pursue the appeal, as held by the learned judge, he would have exercised that right as stipulated under section 19 of the Act but he did not. Ground two of appeal faults the learned judge's finding in respect of Application No. 88/2013 that it had no relevance to the matter that was

before the DLHT. We have, above, endeavoured to show that the parties herein are different from those in Application No. 88/2013. For this reason, the learned judge was right to hold as she did. Even if Anzuruni Mrisho Mlela from whom the appellant traces his ownership of the suit land won the case against Idd Shaba ni Simba in Land Appeal No. 33/2011, yet that did not preclude other persons, the parties herein inclusive, from claiming ownership of the same land. Principally, if one wins a case against a certain party he does not win against the whole world. A court or tribunal decision binds only parties to the case. (See Michael Obiero vs Ager Ondiek and Another (Civil Appeal No. 422 of 2022) [2024] TZCA 584 (17 July 2024) citing Jacqueline Jonathan Mkonyi and Another vs Gausa! Properties Limited, Civil Appeal No. 311 of 2020 (unreported). In this case, Anzuruni Mrisho Mlela did not win title over that land against the whole world. Land Appeal No. 33/2011 and the instant case are independent of each other and the learned judge cannot be faulted for holding so. This disposes of ground one of appeal. The appellant contends in the submission in respect of ground two of appeal that he opposed the application before the DLHT for failure by the respondent to comply with execution conditions set out in Order XXXIX Rule

5(1)(2) and 3(a)(b) of the CPC but it was ignored. We hasten to hold that this contention is misplaced. We do not think that the above holding by the learned judge determined the application for execution before the DLHT. Our understanding is that, the learned judge's holding is to the effect that the DLHT was wrong not to entertain the application for execution for a reason that there was another appeal between Anzuruni Mrisho Mlela and Iddi Shabani Simba over the same land and the learned judge quashed and set aside that order. That means, the DLHT has to proceed with the execution process and, if there are any objections, it has to determine them. On this, the learned judge was right and cannot be faulted. But, having made the finding the DLHT wrongly abrogated its duty to execute the Ward Tribunal decree, the learned judge was enjoined to order the DLHT record be remitted back for it to proceed with the execution process as the respondent rightly urged the Court to do. We agree with the respondent and, as a first appeal court in respect of execution, we are therefore constrained to step into the shoes of the High Court so as to do what it ought to have done by directing the record of the DLHT be remitted back for it to proceed with the execution

For the foregoing reasons, we dismiss the appeal and direct that the record of the DLHT be remitted back for it to proceed with application for execution (Application No. 88/2013) and determine objections, if any. The respondent to have costs of this appeal. DATED at TABORA this 21s t day of August, 2024 P. M. KENTE JUSTICE OF APPEAL The Judgment delivered this 22n d day of August, 2024 in presence of appellant in person and Respondent in person is hereby certified as a true copy of the original. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL li