image6457

V j' ^ -r t IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO LAND APPEAL NO. 27767 OF 2023 {Originating from the Misc. Land Application No. 08 of2022 ofthe District Land and Housing Tribunal Morogoro) ADAMU HAMISI APPELLANT SAID ISMAIL MRUMA 2NDaPPELLANT VERSUS MUHALAMI RAMADHANI KABUJI RESPONDENT Date of Last Order: 11.07.2024 Date of Ruling: 19.07.2024 JUDGEMENT MAGOIGA,J. The appellants, ADAMU HAMISI and SAID ISMAIL MRUMA aggrieved with the decision of the District Land and Housing Tribunal of Morogoro (trial Tribunal) in Miscellaneous Application No. 08 of 2022 to restore Land Application No.08 of 2022 dismissed for want of prosecution on 29.03.2022, now appeals to this Court with six grounds of appeal formulated as follows: I % 1. That the learned trial chairperson erred In Law In arriving at the orders ofsetting aside dismissal orders In Land Application No 8 of2022 in a ruling not containing reasons for such a decision. 2. That the learned trial chairperson erred In Law In arriving at the orders of setting aside dismissal orders In Land Application No 8 of 2023 withoutsufficient reasons being proved and established in accordance with the law. 3. That the Learned trial chairperson erred In Law entertaining Misc Application No 140 of2023 after being functus oflcio. 4. That the learned trial Chairperson erred In Law In arriving at the orders of setting aside dismissal orders In Land Application No 8 of 2022 basing on defective and incompetent affidavits filed in Support of the chamber summons 5. That the learned trial chairperson erred in law In arriving at the orders In Land Application No 8 of2022 In a ruling not containing therein a concise statement ofthe case and points for determination 6. That the appeal Is within time as copy of ruling was obtained on 17/11/2023 as per copy ofreceipts annexed hereto f The facts of this appeal are as follows: The applicant filed Land Application No. 08 of 2022 against the above-named appellants in the District Land and Housing Tribunal for Morogoro but which was dismissed on 29.03.2022 for want of prosecution. Subsequently, the applicant filed Misc. Land Application No. 140 of 2023 in the same Tribunal to set aside dismissal order and restore the same for determination inter parties. Upon hearing parties on merits, the trial Tribunal exercising its discretion granted the application and ordered restoration the dismissed Land Application No.08 of 2022. Aggrieved by the orders setting aside dismissal order and restoration of Land Application No.08 of 2022, the appellants appealed to this honourable court, hence, this judgement after hearing parties on merits. When this appeal was called on for hearing, the appellants were represented by Mr. Jimmy Obeid, learned advocate, and the respondent was represented by Ms. Alpha Alex Sikalumba, learned advocate. Both parties requested that the appeal be argued by way of written submissions. I granted the request. Mr. Obeid in his written submissions, prayed to drop grounds no. 3'^'^, 5^^ and 6^^ and submitted on grounds 2"^ and 4^^. On the ground, Mr. Obeid argued that the Chairperson did not provide adequate reasons for the ruling delivered on October 30, 2023, contrary to Regulation 20(1) of the Land Dispute Courts (The District Land and Housing Tribunal) Regulations, 2023, GN No. 124 of 2003, which outlines the characteristics of a judgment. He contended that the Chairperson's ruling was overly general and omnibus, citing the case of Lutter Symphorian Nelson vs. The Hon Attorney General & Said Ibrahim Msabaha (2000)TLR 419 to support his position and urged this court to allow this appeal on this ground. In response to the ground of appeal, Ms. Sikalumba argued that the ruling delivered by the trial Chairperson in Misc. Land Application No. 140 of 2023 complied with the law and included all essential characteristics as stipulated. She strongly opposed the appeal, asserting that the Chairperson provided reasons for his decision, as evident on page 4, paragraphs 1, 2, and 3 of the ruling. In support of her position and the ruling of the trial Tribunal, the learned advocate cited the case of Luther Symphorian Nelson Vs. Attorney General and Another, Civil appeal No. 24 of 1999 CAT at Tanzlii in which it was held that: "a judgement must convey some indication that thejudge or magistrate has appiied his mind to the evidence on record. Though it may be minimum, it must show that no material portion ofevidence iaid before it wasignored." Ms. Sikalumba pointed out that the ruling of the trial court when read careful at pages 1, 2, 3 and 4, the trial Chairman gave reasons for his decision. According to Ms. Sikalumba, much as the Tribunal was vested with the power to set aside dismissals upon furnishing sufficient reasons, a summons of the High Court was sufficient ground for the Tribunal to exercise its discretion as it did. Not only that but the respondent provided a valid reason for nonappearance, which was a car breakdown. In the circumstances, she argued that the Chairperson found these reasons persuasive enough to exercise his discretionary powers to set aside the dismissal order, in accordance with Regulation 11(2) of the Land Dispute Courts (The District Land and Housing Tribunal) Regulations, GN No. 124 of 2003. She, thus, prayed this court be pleased to dismiss this ground for want of merits. *. : i' t Having carefully read the trial Tribunal ruling, considered the rivaling written arguments, with due respect to Mr. Obeld, this ground Is devoid of any useful merits. I will explain. One, the High Court summons which was attached to the application was sufficient reason as found by the trial Tribunal for an advocate attending proceedings In the High Court or Court of Appeal. And this, as correctly held by the trial Tribunal was at home with the requirement In regulation 13 (3) the trial Tribunal's Regulations G.N. For easy of reference, the said sub regulation 3 of regulation 13 provides as follows; Regulation 13 (3) Where a party's advocate is absent for the reason of attending the proceedings in the High court or Court ofappeai, the Tribunaishaii not beiieve any other evidence as a proof for being in the superior Courts other than producing summons to the advocate and cause iist from such Courts. (Emphasis mine) Two, as correctly argued by the learned advocate for the respondent, the trial Tribunal also considered what befallen the applicant himself and agree with him and that was the reason. The trial Tribunal could not do more than that. t Therefore, on the totality of the above reasons, I find that the trial Tribunal exercised its discretion judiciously and I find no reason to fault him in the circumstances of this appeal. That said and done, the first ground of appeal is hereby dismissed. On the 2^^ ground, Mr. Obeid argued that the respondent failed to provide sufficient reasons for his absence. He asserted that the respondent's affidavits were contradictory, defective, and tainted with untruths. According to Mr. Obeid, the respondent's counsel failed to produce the course list to substantiate her claim of attending the High Court before Hon. Ismail, J. He cited Regulation 13(3) of the Land Dispute Courts (The District Land and Housing Tribunal) Regulations, 2023, GN No. 124 of 2003, which requires the tribunal to believe the summons to the advocate and the course list for such matters. Therefore, in his view, the Chairperson erred in setting aside the dismissal order for Land Application No. 08 of 2022, as the respondent did not establish sufficient reasons and urged this court to allow the appeal on this ground. In response to the 2"^ ground of appeal, Ms. Sikaiumba argued that reasons were given and the trial Tribunal was justified in its decision. In support of t her stance, the learned advocate cited the case of Sandru Mangaiji Vs. Abdul Aziz! and 2 others, Misc. Commerciai Application No. 126 of 2016 at Tanzlii, in which it was heid that: "It is a settled law that an application seeking to set aside a dismissal order of the court, dismissing any suit for want of prosecution, he has to furnish the court with sufficient reason for nonappearance when the suit was called for hearing." Further guidance by the respondent's advocate was the case of Felix Tumbo Kisima Vs. TTCL LTD and another, Civii Appiication No.l of 1997 at Tanzlii, in which it was heid that: 7fshould be observed that the term 'sufficient cause'should not be Interpreted narrowly but should be given a wider Interpretation to encompass all reasons or causes which are outside the applicant's power to control or Influence, resulting In the delay In taking any necessary steps." Ms. Sikalumba, thus urged this court to find no merits in this appeal because both the advocate and respondent gave reasons for their nonappearance and it was all beyond their control, and hence, urged this court to dismiss this ground as well. Having considered all argued by the learned trained minds for the parties and read the ruling of the trail Tribunal subject of this appeal In this ground and my finding In the first ground above, this ground will not detain this court much. Much as the same Is on reasons, the reasons given In ground number one suffices to dispose of this ground. Consequently, the second ground of appeal Is hereby dismissed as well In Its entirety for want of merits. On the 4'" ground, Mr. Obeld contended that the Chairperson erred In relying on defective and Incompetent affidavits. He argued that Muharam Ramadhani Kabuji swore Instead of affirming In the attestation clause, rendering the contents void ab Inltio. He cited the case of BP(Cote D'lvoire SA Ltd) vs. Ghuba Holding(T)Ltd Commercial Case No.70 of 2004, High Court Commercial Division at Dar es Salaam to support this argument. Additionally, he noted that some facts in the respondent's affidavit, specifically paragraphs 2 and 5, were not properly verified by disclosing the source, rendering them incompetent and tainted with untruths. t On the foregoing reasons, Mr. Obeid invited the court to allow the appeal with costs, arguing that the respondent did not meet the required thresholds to be granted the order setting aside the dismissai of Land Appiication No. 08 of 2022. i In response to the fourth ground of appeal, Ms. Sikalumba submitted that there was no affidavit from the so-called Muharam Ramadhani Kabuji in support of any application, but rather from Muharami Ramadhani Kabuji and herseif. She asserted that the Chairperson was just and fair in his judgment of Land Appiication No. 140 of 2023, as reflected in paragraph 4. For these reasons, Ms. Sikalumba prayed for the court to dismiss the appeal in its entirety with costs. In rejoinder, Mr. Obeid reiterated his earlier submission, emphatically asserting that Ms. Sikalumba failed to comply with iegai requirements by merely providing the summons. He contended that she should have submitted the course iist as well. Furthermore, her failure to do so necessitated providing the Tribunal with an affidavit from the acting deputy registrar, elucidating the circumstances. Hence the chairperson was wrong to reiy on the summons aione. 10 v.- Additionally, Mr. Obeid rejoined that paragraph 2 of the Respondent's affidavit and paragraph 4 of Ms. Sikalumba affidavit are contradictory, thereby casting doubt on the veracity of the affidavits and tainting them with untruth. Having read the trial Tribunal records and what was argued by learned advocates for parties, I see no where the issue of defective and incompetent affidavit was raised, argued and determined by the trial Tribunal. This is new issue just cropping up at this appeal. Mr. Obeid, if, indeed, felt that the affidavit was so defective and incompetent, he could have filed a preliminary objection and move the trial Tribunal to have it struck out. But that was not done and raising the issue of competency of the affidavit at this stage is misconceived and an afterthought on his part. This court being an appellate court cannot entertain a matter not decided by the trial Tribunal. In the case of Hassan Bundala @Swaga Vs. Republic, Criminal Appeal No. 38 of 2015 in Tanzaiii, it was held that: "itis now settled thatasa matter ofgeneralprinciple this court wiii only look into matters which came up in the lower court 11 and were decided; and not on new matters which were not raised or decided by neither trial court. Guided by the above principle, I find the issue of competency of the affidavit is new and this ground is as well found wanting in merits and is hereby dismissed. In the fine, the whole appeal is hereby dismissed with costs. The decision of the District Land and Housing Tribunal of Morogoro in Misc. Application No. 140 of 2023 is affirmed. The case file is remitted for continuation of the hearing of Application No. 8 of 2022. Order accordingly. Dated at Morogoro this 19^*^ day of July, 2024. o f-' magoiga : ■ '-I i ( 1 / JUDGE 12