amina bagoka vs william lwehumbiza 2018 tzhc 2676 7 september 2018

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA THE DISTRICT REGISTRY OF BUKOBA AT BUKOBA MISC. LAND CASE APPEAL NO. 88/2017 (Arising from the District Land and Housing Tribunal Land Appeal No. 107/2016 Originating from Kashai Ward Tribunal Case No. 20/2016) AMINA BAGOKA -.........................................APPELLANT VERSUS WILLIAM LWEHUMBIZA----------------------- RESPONDENT JUDGMENT 13/8/2018 & 7/9/2018 Kairo, J. Following his dissatisfaction in the decision delivered by the District Land and Housing Tribunal in Land Appeal No. 107/2016 on 18/10/2017, the Appellant preferred this appeal. In her petition of appeal, the Appellant raised four grounds of appeal as follows:- 1 1. That the District Land and Housing Tribunal Chairman erred in law and on evidence by holding that the appellant was ordered to file the written submission within 21 days not later than 5th October 2016 whereas that order was in respect of a submission on preliminary objections raised by respondent William Lwehumbiza on 11th August 2016 and the said respondent did not file the same as ordered hence the dismissal of that preliminary objections on 7th February 2017. 2. That the District Land and Housing Tribunal Chairman erred in law and on evidence by holding that the appellant filed her pleading on 17.10.2016 without seeking leave of the court, whereas the order was in respect of written submissions on the preliminary objections whereby appellant was to file her reply by 26.10.2016 and for that matter the filing on 17.10.2017 was timely and there was no requirement of leave of the court. 3. That the District Land and Housing Tribunal Chairman erred in law and on record by holding that the appellant failed to argued her case whereas the Tribunal on 7th February 2017 ordered appellant to argue the appeal by written submission which was accordingly filed on 20th February, 2017 vide ERV No. 14270761 and respondent instead of submitting on the appeal made reference to the preliminary objection as per the submission filed by him on 20th April 2017. 2 4. That the District Land and Housing Tribunal Chairman erred in law and on evidence by holding that the Ward Tribunal decision was sound consequently dismissing the appeal whereas the grounds of appeal as submitted were never considered and there was no justification of dismissing the appeal with costs. When replying to the petition of appeal, the Respondent also raised a preliminary point of objection alleging that the appeal was filed in unknown registry and prayed the court to struck out the appeal. However when the P.O was scheduled for hearing, the Respondent decided to withdraw it. The prayer was not objected by the Appellant and the court granted the same and further ordered the cost to be in the course. The parties were thereafter ordered to dispose the appeal by way of written submission. A schedule was fixed for them to file their respective submissions, which schedule was followed as ordered. The Appellant was being represented by the Learned Counsel Advocate Rutabingwa of Rutabingwa and Co. Advocates while the Respondent is receiving representation service from the Learned Counsel Advocate Frank Karoly John of Kabunga & Associates Advocates. Advocate Rutabingwa started submitting by informing the court that the 1st and 2nd ground shall be argued together and the 3rd and 4th ground shall be argued separately. He went on that that the Chairman of the District Land and Housing Tribunal erred by holding that the Appellant was ordered to file written submission in support of the appeal on 5 October, 2016 but filed it on 17/10/2016 instead, without court leave quoting page 3 last paragraph of 3 the typed Judgment to back up his argument. He contended that, the Chairman had actually relied on the orders in respect of the P.O. raised by the Respondent as per a copy of reply to the memorandum of appeal filed by the Respondent at the Tribunal. The Advocate went on to submit that when appeared before the Tribunal on 14/9/2016, the Respondent appeared in person and he appeared for the Appellant who was also present. The Respondent upon his request which was not objected prayed to dispose the P.O he has raised by written submission and he was ordered by the Tribunal to file the same by 5/10/2016. The Appellant on his part was ordered to file a reply by 26/10/2016. Advocate Rutabingwa also submitted that he had also observed that the typed proceedings of the District Land and Housing Tribunal have material errors on page 2 with regards to the order and the date of the order. He clarified that the party to file a submission within 21 days couldn't be the Appellant being not the one who had raised it. Further that the date of the order was 14/9/2016 and not 13/10/2016. He enjoined the court to verify his contention in the hand written record of the Tribunal. He went on that when he went to make a follow up of the Respondent's written submission for reply purpose, he was informed that nothing had been filed. He thus decided to file a general reply on 17/10/2016 which was well within time. 4 Further to that on 7/2/2017 when appeared before the Tribunal, he prayed the Tribunal to dismiss the P.O raised by the Respondent for failure to file the written submission as ordered and the prayer was granted. The Advocate thus argued that the District Land and Housing Tribunal erred by making reference to orders in respect of the P.O which was not before him and further the order was not in respect of the actual appeal before the Tribunal. With regards to the 3rd ground of appeal, the Advocate submitted that the chairman erred in law and on record by holding that the Appellant failed to argue the appeal. He went on that, according to page 4 of the proceedings, the Appellant was ordered to file the written submission in support of the appeal by 21/2/2017 and the same was filed on 20/2/2017 thus well within time. That the Respondent was to file his reply 14 days from 21/2/2017 but until 31/3/2017, when the matter was scheduled for mention, the Respondent hasn't yet filed the same. The position remained so but on 3/4/2017 the Tribunal suo mottu or without an application, granted the Respondent an extension of time to file the reply by 21/4/2017. Surprisingly on 20/4/2017, the Respondent filed a document titled "Reply to written submission" which made reference to the order of 14/9/2016 concerning submission on the P.O which was already dismissed on 7/2/2016. The Advocate further submitted that, when the matter came up for mention on 15/5/2017 and the Chairman without looking at the record ordered the alleged P.O to be heard on 22/^llQYJ. The Advocate contended that on the 5 scheduled hearing date 22/6/2017 he informed the Chairman on the Respondent's submission filed on 20/4/2017 and the Chairman struck out the submission. However, once again without application the Chairman ordered refilling within 14 days while earlier on he had set the date for Judgment, but the Respondent on 6/7/2017, came up with the submission of the P.O. instead of the one concerning the appeal. The Advocate argued that; looking at what transpired, the Appellant timely filed the written submission with regards to the appeal but the Respondent did not despite numerous extension which all the same what were filed were the submission on the P.O already dismissed. He further argued that in that respect the Appellant's appeal was never challenged by the Respondent. He went on that the latest submission by the Respondent filed on 6/7/2017 was a nullity and ought to be expunged from the Tribunal's record as it referred to non existing P.O which was never reinstated following its dismissal on 7/2/2017. In arguing for the 4th ground, the Advocate submitted that, the Tribunal erred in confirming the decision of the Ward Tribunal while the grounds of the Tribunal as submitted by the Appellant were never considered. He went on that, as above shown, the Tribunal dealt with the orders of 14/9/2016 while the order in respect of the appeal was made on 7/2/2017, thus the appeal was not determined which means the Appellant was condemned unheard. Advocate Rutabingwa in conclusion prayed the court to remit to the District Land and Housing Tribunal the undetermined appeal before 6 another Chairman to proceed with the Judgment on the filed submission which was never challenged. To support his prayer, he cited the cases of Wananchi Marine Products (T) Ltd vrs Owners of Motor Vessel Civil Case No. 123/1996: High Court Dar es salaam and that of Allan T. Moteru vrs Akiba Commercial Bank: Civil Appeal No. 114/2002 Dar es salaam High Court (both unreported) and the copies were made available to this court wherein the court disregarded the submission filed out of time ordered without leave of the court. He prayed the court to follow the said stance in the situation of the case at hand. Advocate Frank Karoly when replying the Appellant's submission generally conceded with the counsel for the Appellant that there are material errors on the face of the record as the Chairman confused the orders he gave which confused the parties as well and injustice occurred as a result. The Advocate however blamed Advocate Rutabingwa who was representing the Appellant at the Tribunal for failing to properly direct the Chairman being an officer of the court so as to reach at a just decision. He argued that the position of the law is to the effect that an appellate court may vary, reverse or alter a decision of the lower court if there is an irregularity that results to injustice. He cited the case of Mathias Katanya vrs Ndola Masimbi (1999) TLR 390 to support his argument wherein the court observed that “a court on appeal will not reverse, alter a decision of the lower because of an irregularity in the proceedings unless such irregularity has in fact occasioned failure of Justice". 7 Advocate Kalory went on that he has also gone through the Tribunal proceedings but was with a view that the appeal be allowed with orders to nullify and set aside the Tribunal records and further an order for tri de novo of the appeal with no order to cost as the error that occasioned injustice was caused by the Tribunal. Replying to the 3rd and 4th grounds of the appeal, the Advocate contended that they are not of much different with the 1st and 2nd ground to which he has conceded that the proceedings have occasioned failure of Justice. He thus he informed the court that the discussion concerning the said grounds shall be brief. He went on that much as it is not on record as to whether the Appellant had filed her appeal or not but with the observed contradicting orders of the Tribunal, even the Respondent couldn't understood them and being a layperson, the situation was even worse. He thus reiterated his prayer for this court to nullify the proceedings of the District Land and Housing Tribunal and set aside the orders given therein. Further to that, the court order the appeal to be heard afresh as the same was never heard and thus the Appellant was condemned unheard. He added that, the Chairman also acted on a wrong order which occasioned failure of Justice to the parties. Above all, the District Land and Housing Tribunal's decision was not a Judgment as per the requirement of the law. Advocate Karoly finally prayed the court to allow this appeal without cost and further orders that the appeal be re - heard afresh. 8 I wish to state from the onset that I found this appeal interesting. The counsels of both parties are generally at idem that what transpired at the District Land and Housing Tribunal as per the proceedings and the decision reached depicts serious material irregularities which occasioned injustice to both parties, particularly the Appellant. To clarify the said conclusion they all conceded that the District Land and Housing Tribunal didn't hear and determine the appeal before him since its decision based on a non existing order. They all concluded that the Appellant was condemned unheard, the action which occasioned failure of justice. They further agree that the purported Judgment by the District Land and Housing Tribunal doesn't deserve to be so called as it didn't met the requirement of the law. Interestingly they don't agree on a way forward. The orders each pray from this court to correct what they agreed to be material irregularity are distinct, and this is what this court will address. After going through the grounds of appeal, reply and the written submission prepared by both Counsels together with the court records, I wish to state categorically from the onset that I squarely agree with the observations or submissions by both counsels that there are serious material irregularities in the record of the District Land and Housing Tribunal which has occasioned injustice to parties in this matter. I will not recapitulate the said incidences as the same were thoroughly demonstrated in the submission by the Appellant specifically, which submission I have also re-stated at length above in this Judgment and which are facts on record. As such I see no need 9 of repealing them to avoid monotony. I will however discuss the distinct prayers by the counsels of the parties. As rightly submitted by Advocate Karoly for the Respondent that the position of the law allows a court on appeal to reverse, alter a decision of the lower court when satisfied that there are irregularities in the proceedings which has caused failure of Justice [Refer the case of Mathias Katonya [supra]. As earlier stated, this court has made a finding that there are material irregularities in the proceedings of the District Land and Housing Tribunal. It follows that, the court is enjoined to alter the decision of the District Land and Housing Tribunal. In the said circumstances therefore, this appeal is bound to succeed. But the begging question is what the appropriate orders are to be made after allowing the appeal in the circumstance of this case. The Appellant's Advocate has prayed the court to quash and set aside the District Land and Housing Tribunal's decision. He further prayed the court to revert the matter to the District Land and Housing Tribunal with an order that another Chairman compose a Judgment, arguing that the Appellant had already filed the written submission on 20/2/2017 following the order by the District Land and Housing Tribunal to file it within 14 days. The said order was given on 7/2/2017. He added that the said submission was never opposed as the Respondent defaulted to file his reply as ordered. io On his part, Advocate Karoly for the Respondent prayed the court to nullify the proceedings of the District Land and Housing Tribunal and order re - hearing of the appeal by the District Land and Housing Tribunal with no order to cost as the injustice was caused by the Tribunal. The Advocate in clarification contended that, it is not on record as to whether the Appellant has filed her appeal or not but further that, even if she has, the observed contradictory orders of the tribunal has obviously confused the Respondent as well having in mind that he was a layperson and unrepresented. The law is settled that a Judgment reached without affording a party with an opportunity to be heard is a nullity. In the matter at hand the District Land and Housing Tribunal gave its decision in total disregard of the written submission filed by the Appellant. The importance of the right to be heard has been emphasized in many decisions from various jurisdictions over the centuries including our courts. I wish to borrow a leaf from the words of Vortescue J, when deciding the case of John v Rees and Others [1969] 2 All E.R 274 quoted with approval by His Lordship Samatta CJ (as he then was) in the case of Hamis Rajab Dibagula vrs R Criminal Appeal No. 53/2001 CAT Dar es salaam (unreported) the following words were used to emphasize the said importance "the laws of God on man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such an occasion that even God himself did not pass sentence upon Adam before he was called to make his defence; ii Adam (says God) where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou should not eat? And the same question was put to Eve also". But further when attacking the Judgment of the District Land and Housing Tribunal, the Appellant stated that it was based on a wrong order to which I concede. Despite that, there were other confusing or mixed orders in the proceedings like extending time to file submissions for P.O and appeal without application nor setting aside the dismissal order or vacating previous orders suo mottu; to mention some. In my candid view, the pointed out un-procedural orders can cause confusion to a party to the said proceedings and more so to a lay unrepresented person. Besides, the said written submission the Appellant want the court to base on when writing its Judgment has also stemmed from the same confusing orders or proceedings which are called to be nullified. Technically, in my view there is no such order on which the written submission can hinge on. To decide otherwise will result to defeating the justice against the Respondent while preserving in favor of the Appellant. It is on this basis that this court orders as follows:- 1. That all of the proceedings of the District Land and Housing Tribunal are hereby nullified. 2. All the orders and the decision made there from are hereby quashed and set aside. 12 3. The case file be reverted to the District Land and Housing Tribunal and I further order re-hearing of the appeal by another Chairman and another set of assessors. Cost is ordered to be on the course. Appeal allowed to that extent. It is so ordered. R/A Explained At Bukoba 7/9/2018 13 Date: 7/9/2018 Coram: Hon. L.G. Kairo, J. Appellant: Present in person Respondent: Present in person B/C: R. Bamporiki Court: The case is scheduled for Judgment. The same is ready and is read over before both parties who are present in person. Judge 7/9/2018