abdallah makwaya vs fatuma iddy salehe 2019 tzhclandd 34 6 september 2019

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC LAND APPEAL NO. 52 OF 2017 (Arising from the decision o f the District Land and Housing Tribunal for Kinondoni Land Appeal No. 24 o f 2016) ABDALLAH MAKWAYA...............................................APPELLANT VERSUS FATUMA IDDY SALEHE...................................... RESPONDENT MAIGE, J JUDGMENT This is the second time the appellant is challenging the decision of the ward tribunal for Hananasif ("the trial tribunal") declaring the respondent herein the lawful owner of the suit property. His first attempt to challenge it in the first appeal to the District Land and Housing Tribunal for Kinondoni ("the first appellate tribunal''), the appeal was dismissed and the decision of the trial tribunal upheld. This time around, the appellant has raised four reasons why the concurrent decision of the lower tribunals was erroneous both in law and fact. The second ground, which in my opinion is capable of disposing of the appeal is that the appellant was not afforded sufficient opportunity to be heard at the trial tribunal. By the leave of the Court, the appeal was argued by way of written submissions. Demetrius Masala, learned advocate presented the written submissions for the appellant. For the respondent, the written submission was drawn gratis by Women's Legal Aid Centre and presented for filing by the respondent in person. I recommend the counsel for their impressed submissions. They have been duly considered in my judgment. In his submission in support of the second ground of appeal, the appellant blamed the trial tribunal for entertaining the matter without affording him the right to be heard. He submits that he was not given opportunity to call witnesses and defend himself. He submits relying on the authority in NDESAMBURO VS AG, TLR 137, the denial of the appellant right to be heard was a fatal irregularity. He urges the Court to nullify the decision of both the tribunals and order for retrial. In the submissions in rebuttal for the respondent it was submitted that the appellant, contrary to his claim, was afforded adequate opportunity to be heard including right to call witnesses and produce documentary evidence. She therefore prayed that the appeal be dismissed with costs. I have considered the rival submissions on the issue and duly examined the decisions and proceedings of both the tribunals. For the reasons that shall be exposed gradually as I go on, I am inclined to agree with the appellant and his counsel that the appellant was not afforded an adequate opportunity to be heard at the trial tribunal. The proceeding of the trial tribunal indicates that the respondent testified as a sole witness and so was the appellant. At the end of the testimony of the respondent, it is apparent from the record, the appellant was not afforded an opportunity to cross examine the witness. Instead, the tribunal took the testimony of the respondent who at the end was examined by some of the members of the tribunal. Thereafter, the trial tribunal adjourned the matter until on 9/01/2016 when it would inspect the locus in quo. After the inspection of the locus in quo, the matter was right away fixed for judgment. There is nothing on the record to suggest that the appellant was afforded an opportunity to call other witnesses if he wished. As held in NDESAMBURO VS AG, TLR 137, right to be heard is an essential ingredient of any fair hearing. Non-observance of the principle inevitably vitiate vitiates the relevant judgment and proceeding. In this matter, the appellant was denied a right to cross examine the witness of his adverse. He was in the same way, denied a right to call witnesses. He was therefore denied a right to be heard. In the right of the authority just referred, the irregularity is fatal. On that account therefore, the judgments of both the trial tribunal and the first appellate tribunal are hereby set aside and the proceedings thereof quashed with costs. The file is hereby remitted to the trial tribunal for retrial denovo. It is so ordered. Right to appeal explained JUDGE 06/09/2019 3 06/09/2019 Coram: Hon. C. M. Kisongo, DR For Appellant: Mr. Remetius Masala Advocate For Respondent: Present in person RMA: Bukuku MR. REMETIUS MASALA ADVOCATE: For Judgment, I am ready. RESPONDENT: I am ready for Ruling. COURT: Delivered Ruling in the presence of Remetius Masala Advocate for Appellant and Respondent in person. C. M. Kisongo DEPUTY REGISTRAR 06/09/2019 4