National Housing Corporation v. Hamisi Luswaga & 3 others Civ no 82 of 2008

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO 82 OF 2008

NATIONAL HOUSING CORPORATION ………………….…………APPLICANT

AND

HAMISI LUSWAGA…………...…………………………………1^ST RESPONDENT

PETER KASIDI……………………………….………………….2^ND RESPONDENT

CHRISTOPHER SEME………………………….…………….…3^RD RESPONDENT

ADILI AUCTION MART……………….…..……………………4^TH RESPONDENT

(Application for stay of execution from the decision of the High Court of Tanzania at Dar es Salaam)

(Rugazia, J.)

dated the 26^th day of March, 2008

in

Misc. Land Case No. 14 of 2007

--------

RULING

5 February & 12 March, 2009

KILEO, J.A.:

The dispute in this case centers on a farm N0. 1854 situate at Boko area in Kinondoni District. The applicant claims to be the owner of this farm having bought it from one Joseph Daudi Hayila on 29^th September 2004. The applicant also possesses a letter of offer No. LD/164666/28 over the farm for a period of 99 years. The applicant has made some development on the land under a project styled Boko Phase III Housing Scheme. The respondents on the other hand claim to be the lawful owners who have been in occupation of the same farm since the 1980s.

The dispute over the farm began by the respondents filing a suit in the Ward Tribunal of Bunju (Civil Case No. 94 of 2004) against Joseph David Hayila. They won their case in the Ward Tribunal. The applicant was not a party to that case. Having won their case in the Ward Tribunal, the respondents, pursuant to section 16 (3) of the Land Courts Act, No 2 of  2002, applied to the Kinondoni District Land and Housing Tribunal (DLHT) for execution of their decree. The DLHT in turn issued an Eviction Order vide Miscellaneous Application No 55 of 2005. The threat of eviction prompted the applicant to act by filing a suit (Land Case No.210 of 2005) in the High Court of Tanzania, Land Division. The prayers in the plaint were for a declaration that the plaintiff is the lawful owner of the disputed land and for a permanent injunctive order against the defendants and their agents from unlawfully evicting the plaintiff from the disputed farm. The defendants in the land case, who are the present respondents, raised a preliminary point of objection on the ground that the suit was res judicata it having been conclusively determined by the Ward Tribunal. The High Court sustained the preliminary objection and the suit was struck out. Being aggrieved by the decision of the High Court, the applicant filed the requisite Notice of Appeal and applied for leave to appeal to this Court. While the application for leave to appeal was pending, the respondents obtained an Eviction Order from the DLHT directing the 4^th respondent to demolish walls and remove bricks together with everything on farm No. 1854 Boko Magereza Kinondoni Dar es salaam. Following this Eviction Order, the applicant filed in the High Court an application, (Misc. Application No.14 of 2007) for an order of stay of execution so as to preserve the status quo pending the results of applicant’s application for leave to appeal and the intended appeal in the event leave was granted.  Preliminary point of objection was raised to the effect that the High Court had no jurisdiction to entertain the application on account of the fact that a Notice of Appeal had already been lodged in this Court. The preliminary objection was upheld and the application was dismissed. At the same time the High Court granted leave to the applicant to appeal against its decision dismissing Land Case No. 210 of 2005. The dismissal of the application gave birth to the present application before this Court.

The application by way of Notice Motion is brought under Rule 3 (2) (a) and (b) of the Court of Appeal Rules, 1979 and it seeks an order that the respondents be restrained from executing the Eviction Order issued by the DLHT of Kinondoni District vide Miscellaneous Application No. 55 of 2005 dated the 15^th February 2007 on the following grounds:

(i)          Whereas the Eviction Order was served upon the Applicant and directed against its property, the Applicant was not party to any proceedings that resulted into the said Order;

(ii)         Whereas the Eviction Order was issued by District Land and Housing Tribunal for Kinondoni District (at Magomeni) on the basis of a Decision of the Bunju Ward Tribunal, the Applicant was not party to any of the proceedings before those Tribunals and it has no locus standi therein;

(iii)    The Applicant had applied before The High Court of Tanzania (Land Division) at Dar es Salaam seeking an Order of stay against the execution of that Execution Order pending results of the Applicant’s Application for leave to appeal to the Court of Appeal and appeal against the Decision of The High Court of Tanzania (Land Division) at Dar es Salaam in Land Case No. 210/2005 that had been dismissed allegedly on the grounds of being res judicata; the said Court did simultaneously grant the leave Application while dismissing the one for stay of execution;

(iv)   The subject matter in the intended appeal and for which leave to appeal was granted by the High Court is the same as in the eviction proceedings referred to in grounds (i) and (ii) above; and

(v)    The dismissal Order in respect of the Applicant’s Application for stay of execution is not capable of being stayed yet it exposes the Applicant in that the Respondents may go back to the District Land and Housing Tribunal for Kinondoni District (at Magomeni) and proceed with execution on the basis of the Order of Execution.

The Notice of Motion is supported by the affidavit of Mr. Kamara, learned advocate, who also argued the application on behalf of the applicant. Mr. Kamara’s arguments can be summarized as follows: That there is nothing in the High Court, the execution of which is capable of being stayed, and yet the applicant is exposed to the effects of the case in the DLHT while at the same time continuing with the process of appeal. Referring to Athanas Albert and 4 others v. Tumaini University – Civil Application No 50 of 1999 (unreported), the learned counsel submitted that the present application has been brought under Rule 3 (2) (a) and (b) with prayers for restraint orders. He submitted that the Court is enjoined to ensure that justice is done and has inherent powers to issue injunctive orders. He cited Tanzania Union of Industrial and Commercial Workers (TUICO-OTTU UNION) and another vs. Tanzania and Italian Petroleum Refining Co. Ltd (TIPPER) Civil Application No. 110 of 1999, Court of Appeal of Tanzania (unreported) in support of his arguments. Mr. Kamara pointed out that though the normal procedure in the circumstances of the case would have been to file objection proceedings in the DLHT, his clients, pursuant to operation of the law had no locus in that tribunal and the only place where they could file their grievances was in the High Court, Land Division. The learned counsel argued further that since the subject matter in the application for leave to appeal and the application for stay of execution was one and the same, then one would have expected that the application for leave having been granted, the application for stay of execution would also, logically have been granted because you cannot in one breath give permission to appeal and in the next breath throw out application for preservation of status quo. The learned counsel was quick to point out that proceedings for execution are continuing in a forum where the applicant cannot appear. He argued that if the execution is allowed to proceed while at the same time leave to appeal has been granted the appeal stands to be nugatory. In the event the applicant wins on appeal at most a retrial will be ordered and in the event demolition will have taken place it means that the applicant will suffer irreparable loss, the learned counsel further submitted.

Mr. Marando, learned advocate represented the respondents at the hearing of the application. Resisting the application, Mr. Marando argued that the decision of the Ward Tribunal, which is a competent court in land cases stands against all the world as long it has not been challenged either by way of appeal or otherwise. In this case, he argued, as long as the decision of the Ward Tribunal has not been challenged in any way then that decision cannot be said to be before this Court and therefore the Court lacks jurisdiction to make an intervention concerning the case in the Ward Tribunal. The learned counsel opined that the applicant could have invoked revisional proceedings, or instituted a new case challenging the decision affecting them or appealed against the decision of the High Court in its refusal to stay execution.

Putting all the arguments and the circumstances of the case on the table I think that the whole matter revolves around the following two main issues: One, was the Ward Tribunal case brought before the High Court? And two, does this Court have jurisdiction to order  that the respondents be restrained from executing the eviction order issued by the DLHT vide Miscellaneous Application No. 55 of 2005 dated 15^th February 2007?

The answer to issue No one is simple. Mr. Marando argued that the decision of the Ward Tribunal is not before the Court because it has neither been challenged by appeal nor through revisional proceedings or through a fresh case. As observed by Mr. Kamara, revision in the circumstances of this case would not be sustainable because the DLHT did not decide anything on the rights of the parties and there was no error on the face of the record which would have warranted the High Court to intervene by way of revision. Mr. Marando contended that the decision of the Ward Tribunal has not been brought before the Court. However, the question to ask is; if the decision of the Ward Tribunal was not before the Court, as claimed, how then was it observed to be res judicata? Moreover, looking at the pleadings in the High Court, the case in the Ward Tribunal was called to the attention of the court - see for example paragraphs 9 and 11 of the plaint in the High Court. These paragraphs refer to the case in the DLHT, which was based on the case in the Ward Tribunal. We are indeed faced with a novel situation here as observed by Mr. Kamara. The law, in terms of section 37 (d) of the Land Disputes Courts Act, Act No 2 of 2002 as amended by the Written Laws Miscellaneous Amendments) (No 2) of 2005, bars the applicant from appearance in either the Ward Tribunal or the DLHT. Save for areas where there is no Land Division High Court Registry, the applicant’s locus is otherwise in the High Court, Land Division. The applicants could therefore not go to either the Ward Tribunal or the DLHT for redress as the dispute arose in Dar es salaam where there is a High Court Land Division Registry.

The second issue for consideration is whether this Court has jurisdiction to make an order restraining the respondents from executing the Eviction Order issued by the DLHT pursuant to the decision of the Ward Tribunal. It is noteworthy that the High Court granted leave to the applicant to appeal to this Court. The subject matter in the application for leave to appeal is the same as the subject matter in the proceedings for execution in the DLHT. I agree with Mr. Kamara’s submission that if leave to appeal has been granted and execution is allowed to proceed, then the appeal may be rendered nugatory. On whether this Court has jurisdiction to restrain the respondents from executing the eviction order issued by the DLHT I have no doubt that it has such jurisdiction. The High Court decision which struck out the suit as being res judicata is not capable of execution and therefore not capable of stay. The Ward Tribunal’s decision is however capable of execution and as already pointed out the subject matter in the Ward Tribunal is the same subject matter in the intended appeal for which leave has already been granted. I wish to associate myself with the holding of Ramadhani, J.A as he then was, in Sudi Kipetio & Three Others v. Bakari Ally Mwera (Civil Application No 94 of 2004) – unreported. In that case, discussing the question whether the Court of Appeal has power to stay execution of a Primary Court decree, the learned Justice of Appeal held that it has such powers. He stated as follows:

“It is my considered opinion that as long as there is a notice of appeal before this Court and the order to be stayed, though given by a sub ordinate court, was nevertheless given in respect of a matter subject of the pending appeal, this Court has jurisdiction to entertain an application for stay of execution. Consequently, I have jurisdiction to deal with this application for staying the execution of an order given by the Primary Court.”

Though the applicant did not exactly pray for stay of execution, however the grant of the restraint order prayed for would automatically result in a stay of the decree of the Ward Tribunal. Ramadhani’s decision is therefore directly relevant to the matter at hand.

Mr. Kamara also brought to the attention of the Court the holding in the Indian case of Bhame v. Venkappa, A 1961 K 178 cited in Sarkar’s The Law of Civil Procedure- 11^th Edition Reprint at page 822.  In that case the Indian court, having discussed the inherent powers of the court as provided under section 151 of the Indian Code of Civil Procedure, which is similar to our section 95 of the Civil Procedure Code, held that the Court can stay delivery proceedings in execution of a decree to which the applicant was not a party.  Of course the Court of Appeal is governed by The Appellate Jurisdiction Act and the Court of Appeal Rules.  I however think that, where the interests of justice demand, as in the present situation, the Court of Appeal has inherent powers under Rule 3 (2) (a) and (b) to give an order restraining a party from executing the decree of a sub-ordinate court where the applicant was not a party. The Ward Tribunal is one of the sub-ordinate courts in the hierarchy of land courts and it may be equated to a Primary Court. The applicant, as already pointed out, has no locus in the Ward Tribunal, nor did it have locus in the DLHT which is the executing court.

It is in the light of the above considerations that I find good cause for granting the application. I accordingly order that the respondents be restrained from executing the Eviction Order issued by the DLHT for Kinondoni District vide Miscellaneous Application No 55 of 2005 dated the 15^th February 2007 pending the hearing of the intended appeal. Costs of this application will abide the result of the intended appeal.

DATED at DAR ES SALAAM this 4^th Day of March, 2009.

E. A. KILEO

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

(P. B. KHADAY)

DEPUTY REGISTRAR

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