Jdg ALFERED AMBROSE final

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

AT BABATI LAND APPEAL NO. 21069 OF 2024 (Arising from District Land and Housing Tribunal of Babati Land Application No. 18/2024) ALFRED AMBROS BEA……...............................................…APPELLANT

VERSUS JOHN GABRIEL AMBROS…………………….……….…….…RESPONDENT

JUDGMENT 10th October & 19th December, 2024 Kahyoza, J. Alfred Ambros Bea (the appellant) filed an application to be declared a lawful owner of the house, against John Gabriel Ambros before the District Land and Housing Tribunal (the tribunal). After the pleadings were complete, the tribunal set a hearing date. On the date set for hearing, Mr. Masanja, the appellant’s advocate prayed for an adjournment on the ground that he had not obtained a document to support his claims. The tribunal refused to grant an adjournment as it found no merit in the ground for adjournment and dismissed the application. Aggrieved, Alfred instituted this appeal, contending that, the tribunal violated the law and gave an erroneous decision, that the tribunal denied 1 the appellant an opportunity to be fairly be heard and that the chairman erred to award costs to the respondent. John Gabriel Ambros, the respondent, filed a counter affidavit to oppose the application. He averred that the tribunal violated no law, since the applicant denied himself the right to be heard when he refused to proceed with the hearing and that the order for costs was justified. On the date of hearing, Mr. Masanja advocate, appeared for the appellant whereas the respondent appeared in person. The appellant’s advocate abandoned the first ground of appeal and argued only the second and third grounds of appeal. Citing the case of

David Mushi v. Abdallah Mushamu Kitwanga, Tanzilii [2022] TZCA 535. Mr. Masanja advocate submitted that his client was denied the right to be heard. The respondent opposed the submission. To answer whether the appellant was denied the right to be heard, I wish to recite the following undisputed facts; Alfred Ambros Bea, the appellant who was the applicant (Plaintiff) before the tribunal instituting the application on 10.06.2024 and after instituting the application, had time to load his gun, that is to prepare and collect documents to ground his claims. After instituting the application, 2 the respondent took time to file the reply or the written statement of defence, which he filed on 09.07.2024. Thus, the applicant had another period of almost a month from the date he filed the application to the date the respondent filed the WSD to reconsider his case and assembled evidence. After the pleadings were complete, on 09.07.2024, the tribunal set 12.08.2024 as a hearing date in the presence of the parties. The appellant had another one month to prepare for hearing date. Unfortunately, the appellant failed to take the period before and after instituting the application to prepare for hearing, as a result on the date fixed for hearing, he prayed for an adjournment. The ground for praying for an adjournment was that he had not sought and obtained a document to support his claims. I

could not agree more with tribunal that the appellant adduced no sufficient reason for adjournment. The tribunal was right to refuse to adjourn the hearing. The only problem the tribunal did was that after it refused the appellant’s prayer for adjournment, it went ahead and dismissed the application. The right procedure was for the tribunal after refusing to adjourn 3 the matter to call upon the applicant to prosecute to proceed with hearing of the application. If the applicant refused to proceed, it is that time the tribunal would have dismissed the application. I would venture to say that the tribunal dismissed the application pre-maturely. The appellant complained that the tribunal erred to award costs. I will not dwell on this matter. It is trite law that costs follow the events. The tribunal dismissed the application at the appellant’s negligence to proceed, it was right to award the respondent costs. I confirm the award of costs by the tribunal and do hereby tax them at Tzs. 100,000/= to avoid endless litigations under order 44 of the Advocates Remuneration Order, 2015, GN. No. 263 of 2015. I allow the appeal, set aside the dismissal order and restore Land Application No. 18 of 2024. I award the respondent costs as he was dragged to this Court by the appellant at the appellant’s negligence and lack of diligence. I proceed to Tax the costs awarded at Tzs. 100,000/=. The

appellant will therefore pay Tzs. 200,000.00 before the tribunal sets down to hear the application. 4 Before, I pen down may I advise the parties to read the case of Mgeni Seif v. Mohamed Yahaya Khalifan, Civil Application No. 1 of 2009, CAT and consider whether to proceed with the application. In the end, I allow the appeal set aside the dismissal order, and order the application to be heard interpartes at dispatch. The trial chairman and his assessors have not been disqualified they are at liberty to continue with the trial or otherwise. I so order. Dated at Babati this 19th day of December, 2024. John R. Kahyoza Judge Court: Ruling delivered in the presence of the parties. B/C. Mr. Damas (RMA) present. John R. Kahyoza Judge 19. 12. 2024 5