alhaj ally utoto vs peter kisoka and 2 others 2020 tzhclandd 2198 4 may 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 29 OF 2019 (Originating from consolidated Ruling in Wise. Application No.36 and 37 of 2019 in the District Land and Housing Tribunal for Kilombero and Ulanga at Ifakara) ALHAJ ALLY UTOTO........................................................ APPELLANT VERSUS PETER KISOKA ......................................... 1st RESPONDENT PAULO KISOKA...................................................... 2nd RESPONDENT THOMAS MASSAWE........................................................................ 3rdRESPONDE JUDGMENT ON APPEAL S.M MAGHIMBL J: This is an appeal against consolidated rulings of the District Land and Housing Tribunal for Kilombero/Ulanga at Ifakara by in Misc. Application No. 36 of 2019 which is for extension of time to set aside Ex parte decree and Misc. Application No. 37 of 2019 for stay of execution delivered on 4th March 2019. Both Misc. applications arose from Land Application No. 21 of 2013. In its decision, the tribunal dismissed the two Consolidated applications for non-appearance of the Applicant under Regulation 11 (1) (b) and 13 (2) of the Land Disputes Courts (The District Land and Housing tribunal) Regulations, G.N No.174 of 2003. Aggrived by the said decision, the appellant appeal to this Court on four grounds that: 1. The Tribunal erred in law and in fact in dismissing the substantive applications while there were pending preliminary objections in Law i against both applications raised by the Respondents herein which were never determined. 2. The tribunal erred in law and in fact by dismissing both applications for Non-appearance while appellant' representatives attended Court on 04th March 2019 and provided explanation. 3. The tribunal erred in law and in fact in not addressing the temporary Ex-parte orders of stay of Execution issued in Misc. Application No. 37 of 2019 in its consolidated ruling dated 04th March 2019. 4. The tribunal erred in law and in fact in ordering Execution Vide Misc. Application No. 13 of 2013 filed and pursued by the Respondents herein without taking into account the following; (i) that the . application for Execution was not served upon the Appellant, (ii) That there was pending an application for stay of Execution in Misc. Application No. 37 of 2019. (iii) That the eviction order was issued without being preceded by a 14 days' notice. On 18th November 2019, this Court ordered this appeal to be disposed of by way of written submissions. Advocate Peter Kibatala represented the Applicant while Advocate Augustine Kusalika fended the respondents. On the 1st ground of appeal, Mr. Kibatala submitted that there was a preliminary objection raised by the respondents against the two applications and the Appellant was not served with the Preliminary objection and when matter was scheduled for hearing the PO was never disposed. He argued that the tribunal erred in dismissing the applications before determination of the objections. 2 On the 2nd Ground, he submitted that the tribunal erred by dismissing the applications for non-appearance since the representative of Appellant one Ramla Utoto was present to notify the tribunal on the appellant's sickness. That the best practice was to adjourn the hearing and have the appellant provide medical proof of his sickness. As for the 3rd ground, he submitted that the tribunal failed to address the temporary ex-parte orders of stay of Execution of decree in Land Application No. 21 of 2013 issued in 25th January 2019. That failure to address the order was an error because it was very clear that it was granted pending hearing and final determination of the application inter­ parties hence it could not dismiss the application without addressing the order. On the last ground, Mr. Kibatala argued it in three limbs. First he submitted that there is no any evidence/proof of service of the application for Execution in Misc. application No. 13 of 2013 to the appellant. He argued that the omission to be served was contrary to Regulation 6 (2),(3) and (4) of Regulations. Second, he submitted that there was pending Applications for stay of Execution in Misc. Application No. 37 of 2019 and lastly that the eviction order was issued without being preceded by a 14th day notice contrary to Regulation 23 (3) and (4) of the Regulations. He prayed that the Ruling be quashed and set aside. In reply to the 1st ground, advocate Kusalika submitted that the dismissal of the application was made due to absence of the appellant and his 3 advocate without sufficient cause when the matter was scheduled for hearing. On the 2nd ground, he submitted that the two applications were dismissed and no medical reports were tendered hence the tribunal had no choice but to dismiss the application. He argued that no procedure has been violated by the trial Tribunal in dismissing the Applications. As for the 3rd ground, his reply was that there was no need for the tribunal to address temporary ex-parte order while the Misc. Application No. 37 of 2019 was scheduled for hearing on 4th March 2019 and the Appellant and his advocate defaulted to attend. On the last ground, he argued that all matters originating from execution are not appealable in law. That in case of irregularity on the process of execution, the appellant was required to challenge it by way of revision and not to appeal as he did in this appeal. He supported his argument by citing the decision of the High Court of Tanzania in the Case of Ignasio Ignas Vs. Rose Hanselem Mpangala and another Civil Appeal No. 65 of 2017. In examining grounds of this Appeal, let me draw attention to the principles laid down in the case of Wanguku v Kania [1986-1989] 1 EA 593(CAK) / Page 597 of [1986-1989] 1 EA 593 (CAK) whereby the court held that there is no right to appeal based on dismissal order for non- appearance of the parties. The court further held that the proper remedy is for the aggrieved party to go back to the same Court for restoration of the dismissed suit for non-appearance. In the instant suit, it appears from the 4 records that when matter was scheduled for hearing of the preliminary objection raised by the Respondent on 4th March, 2019, the appellant and his counsel did not appear. Much as I see that because the matter was scheduled for hearing of the preliminary objection and not the main application, in the absence of the applicant therein, the tribunal was to proceed with the hearing of PO ex-parte of the applicant and not to dismiss the application, I cannot ignore the fact that the Appeal before me has come prematurely as the matter was still within the jurisdiction of the tribunal to be dealt with. As per the cited case of Wanguku Vs. Kania it is the same tribunal that has power to reinstate the applications after receiving a satisfactory explanation. The appellant was therefore required to knock on the same door again for restoration of the matter and not to lodge this appeal. On those findings, the appeal before me is pre-mature and is consequently struck out with no order to costs. Appeal Struck out 5