AGNES LEMBRIS TAIKO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA-SUB REGISTRY

AT ARUSHA LAND APPEAL NO. 22 OF 2023 (C/F District Land and Housing Tribunal for Arusha at Arusha, Misc. Application No. 3 of 2022 Originating from Application No. 55/2021)

BETWEEN AGNES LEMBRIS TAIKO........................................... .....APPELLANT

VERSUS MBOYOO JUMA MOLLEL................................ 1st RESPONDENT NATIONAL MICRO FINANCE BANK........................ 2nd RESPONDENT

JUDGEMENT 12/09/ 2024 & 25/10/2024 MWENDA, J.: Before the District Land and Housing Tribunal for Arusha, the present appellant (the then applicant), filed a suit against the respondents herein seeking to be declared as the owner of the Suitland. She also prayed the mortgage of the house situated at Plot No. 112 Block "HH" Lemara within Arusha Region entered by the 1st respondent to the second respondent to be declared as null and void. The said application was contested thus the tribunal fixed the hearing date. 1 | P a ge On 14/2/2022 when the said application was scheduled for hearing, neither the applicant nor her advocate entered appearance. After being moved by the learned counsel for the 2nd respondent, the Hon. Chairman dismissed the said application under Rule 11 (1) (b) of GN No. 174 of 2003 for non- appearance. Aggrieved by the said dismissal order dated, the appellant moved the tribunal by filing Misc. Application No. 33 of 2020 craving to set aside the dismissal order. After hearing submissions from both sides, the Hon. Chairman was of the view that there were no sufficient reasons advanced by the applicant to prove/support their non-appearance on the date when the matter was fixed for hearing. He thus dismissed the application for being unmerited. Aggrieved, the applicant preferred the present appeal based on the following grounds: - 1. That, the learned trial

chairman erred in law by failure to subject the entire matter to an objective scrutiny given the special circumstances of the case and substantive justice needed he thus ended to a decision that led to a serious failure of justice. 2 | Pa ge 2. That, the learned trial chairman erred in law and fact by failure to take into consideration the position taken by 1st respondent in the application which was material to fair determination of the matter henceforth the impugned decision which never met the substantive justice needed in the matter. This appeal was contested by the second respondent and as such, this court fixed the hearing date. On that date in question, Mr. ASUBUHI YOYO, learned counsel appeared for the appellant whilst Mr. ROGGERS GODFREY MLACHA, learned Counsel appeared for the 2nd respondent. On his part, the 1st respondent stood for himself. In the cause, the learned counsel for the appellant prayed for disposal of this appeal by way of written submission. This application was not opposed by the learned counsel for the 2nc respondent. As such the scheduling order was issued and both sides, save for the 1st respondent, complied. The court considers the 1st respondent's failure to file his written submission as a waiver to his right to be heard. In his submission, Mr. YOYO dealt with the 1st ground only. He however did not delve in the second ground of appeal. This

court considers he abandoned the same and as such, this court will not delve on the second ground of appeal. 3 | Pa ge In his submission to support the first ground of appeal, Mr. Yoyo commenced with an argument that the said ground is aimed to demonstrate the tribunal's failure to take cognizance of the peculiar nature of dispute which, according to him, involved the vulnerable woman thus calling for more flexibility on the side of the court and strike the balance between the rules of procedure (procedural technicalities) and the substantive justice. In support to this argument, he cited the case of JASON SAMSON RWEKIZA V. NOVATUS RWEHUNGURA NKWAMA, CIVIL APPEAL NO. 305 OF 2020, YAKOBO MAGOIGAGICHERE V. PENINA YUSUPH, CIVIL APPEAL NO. 55/017 TZCA and Article 107A (2) of the Constitution of the United Republic of Tanzania. Mr. YOYO went on to submit that the trial tribunal did not exercise its discretion judiciously as a result, it denied the appellant the right to be heard contrary to the dictates of Article 13 (6) (a) of the Constitution of the United Republic of Tanzania and the principle set in the case of MSELEMU KANDILI V. WAZIRI THABITI (CRIMINAL APPEAL NO. 396 OF 2019) and MBEYA RUKWA AUTOPARTS & TRANSPORT LIMITED V. JESTINA GEORGE MWAKYMA, CIVIL APPEAL NO. 45/2000 (Unreported). Having submitted as 4 | Page such, the learned counsel for the appellant prayed this appeal

to be allowed with costs. While opposing this appeal, Mr. MLACHA submitted that the first ground of appeal is not based to what was decided by the tribunal, rather on what, according to the learned counsel for the appellant, ought to have been considered. Having reproduced the said ground, Mr. MLACHA believed this court being the appellate court, cannot decide on a matter which was not decided by the trial tribunal. Further to that the learned counsel for the 2nd respondent submitted that the learned counsel for the appellant is only seeking for sympathy of the court by challenging the tribunal's failure to sympathize with the appellant. He observed that sympathy has no place in a court of law. To support the point, the learned counsel cited the case of MARTIN MISARA V. REPUBLIC, (CRIMINAL APPEAL NO. 428 OF 2016) [TANZLII] TZCA 188 (28 JUNE 2019). Mr. MLACHA also submitted that in his submission in chief, Mr. YOYO advance three reasons for faulting the the trial tribunal's failure to consider the special circumstances of the case particularly the vulnerability of the appellant, rule of procedure and substantive justice together with the need to act judiciously before denying the appellant the right to be heard. While 5 | P a ge challenging the said argument, Mr. MLACHA was of the view that our court system is adversarial which determine the matter based on the strength

of evidence adduced by the parties in which, the tribunal ought to consider if there was a good cause supporting the absence of the appellant and his counsels when Application No. 55 of 2022 was dismissed for non- appearance. Moreover, he stressed in that since the issue of vulnerability of the appellant was not raised as a ground for their non-appearance, then raising it at this stage is nothing but an afterthought since the impugned decision is based on evidence, which is not challenged by the appellant, and delivered after hearing of the application on merits by involving both parties. He believed the reasoning by the learned counsel for the appellant lacks merit. Finally, Mr. MLACHA challenged the grounds of appeal for failure to align with Rule 1 (2) of the CPC. He said that the said ground needs to be set out clearly and specifically in the petition of appeal. In support to this point, he cited the case of MACDONALD PUDENSIANA V. CECILIA ALFRED MWOMBEKI (CIVIL APPEAL NO. 2 OF 2022) [2022] TZHC 10920 (8 JULY 2022) (TANZLII). He then prayed this appeal to be dismissed with costs for being misconceived, untenable and devoid of merit. 6 | P a ge Having considered the rival submissions from both sides, this court is now able to determine whether the trial tribunal was justified to hold that the appellant did not have sufficient reasons to move the tribunal to set aside

its dismissal order. At the outset, it is important to point out that a party willing to move the tribunal to set aside the dismissal order is required to apply as such before the tribunal within 30 days from the date of the said order and the tribunal may grant the same if it deems fit to do so. This is by virtue of Regulation 11(2) of GN No. 173 of 2003 which provides as follows, that: "A part to an application may, where he is dissatisfied with the decision of the Tribunal under sub-regulation (1) within 30 days apply to have the orders set aside, and the tribunal may set aside its orders if it thinks fit so to do and in case of refusal appeal to the High Court". It however important to also point out that the above legal position should not be applied blindly. The same be acted judiciously by applying conditions set for consideration. The said conditions require the applicant to advance sufficient cause for his/her non-appearance when the matter was scheduled 7 | Pa ge for hearing. This position was stated in the case of SHAMSUDIN JIWAN MITHA V. ABDULAZIZ ALI LADAK (1960)1 E.A. 1054 where it was held inter alia that. "In order to succeed in an application for reinstatement of a suit or appeal, the applicant has to show that he did not appear and that he was prevented from appearing by sufficient cause." In the present matter, when the appellant's application to set aside

the dismissal order was set for hearing, the appellant said her nonappearance before the tribunal on 14/2/2022 was due to her sickness. In support to that, she annexed her medical report dated 17/2/2022.In it, it was indicated that she was treated as an outpatient on 10/2/2022 and she was given seven (7) days for follow-ups. Regarding her learned counsels' nonappearance, she averred that both were bereaved. She said her learned counsels lost their grandparents (grandmother and grandfather). Despite the said averment, her affidavit reveals it was only one Mr. Joseph Hilary Mulumba, learned Advocate who lost both his grandparents and travelled to Singida to attend the burial 8 | P a ge ceremony on 12/2/2022. Having assessed the said evidence, the trial tribunal ruled out that such reasons were insufficient to warrant setting aside the dismissal order. The Hon. chairman was of the view that since the appellant had two advocates and since it is only one was bereaved, then the one remaining, one Ms. Devotha ought to have attended before the tribunal. In a bid to preempt the tribunal, Mr. Hilary during his submission said that Ms. Devotha, learned advocate was also bereaved but it was forgotten to be mentioned in the letter requesting for adjournment. On his part, the Hon. chairman ruled out that the same was a mere hearsay as it was not supported by affidavit. I have keenly

considered the trial tribunal's record, particularly the reasons for dismissing Misc. Application No. 33 of 2022 and satisfied that the appellant failed to advance sufficient cause for their non-appearance on 14/2/2022 when the matter was called for hearing. Firstly, the argument that the learned counsel one Ms. Devotha was also bereaved was not supported by affidavit and secondly. Even the appellant's sick sheet attached to her affidavit does not support her position since it reveals she was treated as an outpatient on 10/2/2022. This means there was nothing to prevent her from 9 | Page appearing before the tribunal on 14/2/2024 when the application was scheduled for hearing. Based on what is brought by the appellant before this court, the appellant seems to have nothing to challenge the trial tribunal's reasoning. No wonder her advocate surfaced with a new ground in that the Hon. Chairman erred for his failure to consider the appellant's vulnerability as the woman by trying to apply the principle of overriding objectives. I have considered this ground and came to an agreement with Mr. MLACHA, that the same is not a ground fit to be considered by this court. This is because, the learned counsel for the appellant failed to explain how vulnerable the appellant is and in addition, raising the issue of the appellant's vulnerability seems to draw sympathy from the court which this

court considers it unfounded. On top of that, that issue was not raised before the trial tribunal. This court is mindful that a point of law can be raised at any time. However, vulnerability is not one of them.Thus, raising it at this stage is nothing but an afterthought. On the foregoing reasons, this court finds no reasons to disturb the decision of the trial tribunal. This appeal is hereby dismissed with costs for want of merit. 10 | P a g e It is so ordered. DATED and DELIVERED at ARUSHA this 25th day of October, 2024.

JUDGE 11 | P a g e