Ester-Makoye-Vs-Silya-Msuma.Pdf

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF SHINYANGA AT SHINYANGA LAND APPEAL NO. 23 OF 2020 (Atising from Land Application No. 4 of 2020 of the Maswa District Land & Housing Ttibuna/). Originating from Land Complaint No. 03 of 2018 of Nyakabindi Ward Ttibunal. ESTER D10 MAKOYE .. I ••••••••• II •••••••••••••••••••••••••••• II. I. APPELLANT VERSUS SILYA % MSUMA RESPONDENT JUDGMENT 15h April & 2lJh May, 2021 MKWIZU, J.: Appellant, Ester makoye was a respondent in execution proceedings which were before the Maswa District Land and housing Tribunal in Land application No 4 of 2020. She lost the application hence this appeal predicated on three main grounds that: 1. "That, the District land and Housing tribunal for Maswa erred in law and in facts for entertaining the application for execution without availing the appel/ant right to be heard 2. That, the District Land and Housing Tribunal for Maswa erred in law and in facts for entertaining the application for execution which was improperly and misconceived filed before the tribunal 1 3. That, the District Land and Housing Tribunal for Maswa erred in law and in facts by ordering the appel/ant to be evicted in the suit land while the said area is not subject for execution. The appeal was orally heard. Parties appeared in person and both had very short submissions understandably because they are laypersons. In support of the appeal, appellant faulted the District Land and Housing tribunal for not affording her a right to be heard in an application for execution. She prayed for the nullification of the execution proceedings to allow parties heard. Respondent opposed the appeal. She submitted that they were all heard but the tribunal found in her favour. I have given this appeal, records and the parties submissions a thorough scrutiny. It is on the records that Silya Msuma filed land complaint No 03 of 2018 at Nyakabindi Ward tribunal. The complaint was over a piece of Land measuring 4 acres located at Gagabali area in Nyakabindi Ward within Busega District in Simiyu Region.The complaint was registered against two persons, Ester Makoye and Maria Mwinula. It seems, respondent did not 2 make appearance before the ward tribunal. Thus, the complaint proceeded exparte. After the Ward Tribunals decision, Silya Msuma filed her application for execution before the District Land and Housing tribunal for Maswa. Ester Makoye appeared at the District Tribunal and did oppose the execution proceedings. She on 18/2/2020 raised three preliminary objections challenging the competence of the application itself and questing as well the jurisdiction of the tribunal over the matter. On 14/5/2020, the tribunal heard both parties on the filed preliminary objections. It is clear at page 4 and 5 of the DLHT's proceedings that both parties were heard on the preliminary objection before the delivery of the ruling overruling all the P/o's on 3/6/2020. After the ruling on the preliminary objections, the records shows that, the execution application was scheduled for hearing and parties were heard on 05/8/2020. Appellant was a judgement debtor in that application. She was invited first to submit. This was her submissions: ''/ am the lawful owner of the Land in question and I was not called to appear before the ward tribunal, more over the trial 3 tribunal had no jurisdiction as the value of the land in question is Tshs ~40~OOO. I pray the objection be upheld and the application be dismissed." Respondent who was a decree holder replied to the appellant's submissions and the tribunal decided in favour of the respondent/ the decree holder/ Silya Msuma and ordered the Nyakabindi Ward Executive officer to hand over the suit land to Silya Msuma. Discontented, Ester Makoye appealed to this court on the above listed grounds of appeal. At this juncture I should, I think with precision, be able to conclude that appellant complaint that she was denied an opportunity to be heard at the District Land and Housing Tribunal is a misleading and incorrect criticism. She was heard both on her preliminary objection and on the application for execution. The fist ground of appeal is therefore baseless. I am left with the 2nd and 3rd ground of appeal. It is apparent, the appellant did not submit on her 2nd and 3rd complaints that execution application was improperly before the tribunal and that it was wrong for the District Tribunal to order eviction of the appellant while the said area is not subject for execution. The appellant did not open up on these grounds and nothing was 4 said by her or the records that would enable this court to understand and justly determine these two grounds. I shall for that reason, not consider them. That said, I find the decision by the District Land and Housing Tribunal's Chairperson proper. I dismiss the appeal. In the circumstances of this case, each party is ordered bear own costs. Order accordingly. DATED at SHINYANGA this 28th day of May, 2021 5.

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