alfred sanga vs evarist njimba and others 2021 tzhclandd 193 21 may 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 169 OF 2020 (Originating from Temeke District Land and Housing Tribunal for Kinondoni as per Chenya, Chairman in ConsolidatedApplications Nos. 422/2011 & 354/2013) AFRED SANGA.............................................................................. APPELLANT VERSUS EVARIST NJIMBA................................................................ 1st RESPONDENT BATAMWA RWAMUGILA................................................... 2nd RESPONDENT EMATHIAS MBONDE......................................................... 3rd RESPONDENT JUDGMENT I. MAIGE, J 1. This appeal is against the judgment and decree of the District Land and Housing Tribunal for Kinondoni, ("the trial tribunal") in Consolidated Applications nos. 422/2011 and 354/2013. In the application no. 422/11, Evarist Njimba, Batamwa Rwamugila and Herman Kapinga were the applicants and Alfred Sanga the respondent. Conversely, in Land Application No. 354 of 2013, the said Afred Sanga was the applicant and the respondent was Mathias Mbonde. Neither of the applicants in the initial suit was a party. 2. The suit property in the initial suit is described at paragraph 6(i) of the Application in the following words (i) The claims o f the applicants jointly is about a piece o f land estimated to be measured 41/2 meters x 50 meters which was upon mutual agreement o f the applicants left as a public road for public use since year 2000 but recently the same is claimed by the respondent that it passed through his land, also the applicants claim for general damages o f Tshs 30,000,000/= 3. Contrariwise, in the subsequent suit, the suit property is described at paragraph 6(i) of the application as follows:- (i) That sometimes in the year 2008 and 20091 purchased three parcels o f land from three different persons as follows;- (a) The first parcel o f land I purchased from David Nyembele on February, 2003 which measured 20 meters x 26 meters Tshs. 3,000,000. (b) The second parcel o f land I purchased from Gaudence Mpambo on 05/12/209 for Tshs. 1,500,000/= (c)The third parcel o f land I purchased from Katua Kapinga for Tshs. 1,000,000/=. 4. It was further claimed in paragraph 6(a) (iii) thereof that, "some time in 2011f the respondent therein entered into the appellant's land and created a road in between the suit property and his residence". 5. In the latter proceeding, it is suggestive, the trial was conducted in full and the locus quo visited. More so, two assessors namely; A.B. Bakileki and Afred Kinyondo gave their opinions on 23/04/2020 and 7th May 2020, respectively. 6. In the former proceeding, the trial had, by October 2017, been concluded and on the same date, the locus in quo visited. It is further on the: record that, the gentle assessors were directed, on 8th November 2018, to give their opinions. 7. As that is not enough, unlike in the former application, in the latter application, the respondents raised a counter claim. Quite unusually, neither the judgment of the trial tribunal nor the proceedings thereof suggest that the counter claim was ever determined. 8. Both the proceedings are silent on when the consolidation order was entered. Neither the judgment. For the reason better known to themselves, parties though duly represented, have avoided to remark on these very fundamental particular issues. 9. Therefore, on 16th April 2021 when the matter came for judgment, I directed the counsel to address me, by way of written submissions, on the following issues:- (i) Whether the consolidation of the two proceedings was proper and correct? (ii) Whether the counter claim in Application No. 2 5 4 /2 0 1 3 was considered? (iii) What should be the wayward? 10. In his submissions in respect to the first issue, Mr. Benito Mandele, for the appellant, started with the second ground. He informed the Court that, indeed the counter claim in Application No. 354 of 2013 was withdrawn at the certain stages of the proceeding. It is his contention however that, the trial chairperson was wrong in not reflecting such pertinent issue in the proceedings. 11. Submitting on the same point, Mr. Isaac Tasinga, speaking for the respondents, was of the humble contention that, the counter claim was not considered. In his view, that was unfair as it occasioned failure of justice. 12. On my part, I am in agreement with both counsel that, for the reason of the outcome of the counter claim not being reflected in the judgment and proceedings of the trial tribunal, the trial chairperson committed a fatal irregularity which renders the judgment of the trial tribunal incomplete. 13. Like in the second issue, both counsel were of concurrent position on the first issue. Mr. Mandele assigned two reasons why the consolidation was improper. First, the order consolidating the two proceedings was made by the trial chairperson suo motu without the parties being afforded opportunities to comment thereon. In his view, which I entirely subscribe to, such an approach was uncalled for as it occasioned curtailment of the parties7rights to be heard on the issue. This is in line with the authority in Rural Development Bank vs. Filton (Tanzania) Limited 1*19961 TLR 125 in support of the view that; in civil proceedings, each party must be afforded an opportunity to participate in every stage o f the proceedings. 14. In his second ground which is shared by his learned friend advocate Tasinga, it was Mr. Mandele contention that, the two applications, were not fit for consolidation for the reason of pie being by and against different parties and the causes of action and the reliefs sought being quite distinct. More so for the issues to be addressed. Again, I entirely agree with them. I have taken into account as well what are in paragraphs 3,4 and 5 herein. 15. The irregularities under discussion, I agree with the counsel, are fatal. They render the judgment of the trial tribunal null and void. In exercise my revision powers under section 43(1) (b) of the Land Disputes Court Act, therefore, I hereby set aside the judgment of the trial tribunal and remit the matter to the trial tribunal with an order that, separate judgments be composed in each proceedings by the same chairpersons if available or new chairperson if not, as the case may be. In relation to the latter proceeding, I further direct that, before composing the judgment, the trial chairperson should, under section 97 of the CPC amend the proceedings to reflect the withdrawal of the counter claim. No order as to costs in the circumstance. I. Maige JUDGE 21/05/2021 Date 21/05/2021 Coram: Hon. A.S. Chugulu - DR. For the Appellant: Ms. Rose Sanga, Advocate For the 1st Respondent: Absent For the 2nd Respondent: Absent For the 3rd Respondent RMA: Bukuku COURT: Judgment delivered this 21st day of May, 2021 in the presence of Ms. Rose Sanga, learned counsel for appellant, the 3rd respondent in person and absent of 1st and 2nd respondei DEP AR 21/05/2021 8