IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO 82 OF 2008

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

AND
HAMISI LUSWAGA…………...…………………………………1ST RESPONDENT
PETER KASIDI……………………………….………………….2ND RESPONDENT
CHRISTOPHER SEME………………………….…………….…3RD RESPONDENT
ADILI AUCTION MART……………….…..……………………4TH RESPONDENT

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

(Rugazia, J.)

dated the 26th 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 29th 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

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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 4th 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 15th 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;

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(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

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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 15th February 2007?

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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

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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- 11th 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.
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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
15th 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 4th 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