amos kitenge goryo vs joshua jakob mwaya others 2018 tzhclandd 508 17 august 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPEAL NO. 141 OF 2017 (Arising from Ruling o f the Misc. Land Application No. 322 o f 2016 in the District Land and Housing Tribunal for Temeke at Temeke dated on 08th day o f September, 2017 by A. R. Kirumbi - Chairman) AMOS KITENGE GORYO...................................... APPELANT VERSUS JOSHUA JACOB MWAYA............... 1st r e s p o n d e n t ROBERT DANFORD MFIDHI........... 2nd r e s p o n d e n t MARAKI JIBSON HENGEKA........... .3rd r e s p o n d e n t Date of last Order: 9/5/2018 Date ofJudgment: 17/8/2018 JUDGMENT MGONYA, J. The Appellant being aggrieved with Ruling and Drawn Order of the District Land and Housing Tribunal for Temeke dated 8/9/2017 by A. R. Kirumbi, Chairman appealed to this Court on the following ground:- 1. That, the Hon. Chairman erred in iaw and facts for failure to consider the reasons contain in an Affidavit filed by the Appellant; 1 2. That the Hon. Chairman failed to analyze and evaluate the reasons and evidence o f the Appellant support his Application hence rendered a bias ruling; The Appellant prayed to this Court the following orders: 1. Uphold the Appeal; 2. Quash and set aside the ruling o f the District Land and Housing Tribunal for Temeke dated 8/9/2017; 3. Order the Appellant to file his Land Appeal No. 10 o f 2016 dismissed for non-appearance; 4. Costs o f this Application; and 5. Any other relief(5) this Court deem fit andjust to grant In order to appreciate the gist of this Appeal, a brief back ground is important. It was alleged by the Appellant that he was the lawful occupier of the suit land located at Mkwajuni Kata ya Vijibweni. He contended that on 13th February, 2015 he noticed that the Respondent herein trespassed into the suit premises and started to construct a house therein. In the suit premises there was a house of two bedrooms which was demolished after the Respondents' trespass. It is due to that, the Appellant decided to file an Application at Temeke District Land and Housing Tribunal. On the other hand, the Respondents countered the Appellant's allegation and averred that; the first Respondent purchased the suit land since 2015 from one MWINYI TUALIFE, while; the 2nd Respondent purchased the Land through the Local Government office and 3rd Respondent purchased the suit land from a Ten Cell Leader, and copies of the Sale Agreement where annexed, Annexure A-l, Annexure A-2 and Annexure A-3 respectively. After hearing both parties, the District Land and Housing Tribunal found in favour of the Respondents, as the Appellant failed to submit on his Application and instead submitted on his Land Appeal No. 10 of 2016 which was already dismissed for non- appearance. Thus this Appeal. At the hearing of this Appeal, both parties were unrepresented. With leave of the Court, the Appeal was disposed by way or oral submissions. Supporting the grounds of Appeal, the Appellant submitted that, the District Land and Housing Tribunal did not give him justice for the reason that upon his Application for restoration of Land Appeal No. 10 of 2016 which was dismissed for want of prosecution/nonappearance, the chairman did not consider the reasons of his absence. That it was the Appellant's view that the Chairman denied his right The Appellant prayed this Court to consider his grounds of Appeal and his submission in consideration of the Appeal. Objection of what the Appellant had submitted, the 1st Respondent contended that the Appellant's reason for his absence was not convincing and that is why the Chairman dismissed the same. Hence the Chairman was correct in his decision. Responding to the Appellant's submission, the 2nd Respondent averred that the Hon. Chairman was quite correct in his entire decision due to the facts surrounding the case. 3rd Respondent submitted that, Hon. Chairman was correct in his decision, since before his decision the Respondents managed to submit before the Tribunal on how they acquired the Land in dispute and all the evidence that the Respondents had was dully tendered before the Tribunal. From the same, it was the Respondents' view that the Chairman's decision was correct. On rejoinder, the Appellant insisted that the Court has to look into the record since the Respondents have no right in the disputed land while the suit premise was his own property. Going through both parties' submissions and after perusing Court record, this Court find that at District Land and Housing Tribunal there was an Application for re-admitting Land Appeal No. 10 of 2016 which was dismissed for non- appearance. The reasons advanced by the Appellant by then the Applicant was that, he felt sick and that he was sent to the hospital by his wife. The Applicant in his Chamber Application supported by an Affidavit attached a copy of the medical card for outpatient record to signify that he was given a treatment at the Government Hospital of Mwasonga. Now back to the Appeal. The ground of Appeal which have already been reproduced in full above need not detain time at all. The trust of all the grounds of Appeal lies on the crucial question that whether in the light of what the Appellant have tried to demonstrate in the trial Tribunal, there was basis for learned Chairman to hold in effect that, sufficient cause, was not established to warrant the grant of the Application. After going through the Ruling of Learned Chairman and the submissions of both parties in this Appeal; I have a found myself in full agreement with the Appellant that the reason adduced suffice the sufficient cause for the Court to grant the Application. From the record of the lower Tribunal I came across the medical card dated 20/9/2016 and also I saw the Order of the Tribunal dated 21st September, 2016 which dismissed the Application under Order XXXIX Rule of the Civil Procedure Code Cap. 33 [R. E. 2002]. From these extracts, it appears that the Appellant who was the Applicant did established sufficient cause warranting the trial Tribunal to exercise its discretion power to grant the Application sought. The question to be asked, is what constitutes the sufficient cause. The factors constituting sufficient cause depend on the circumstances of each case. It is well explained in the case of MUMELLO VS. BANK OF TANZANIA (2006) TEA 227 COURT OF APPEAL OF TANZANIA AND BONEY M. KATATUBA VS. WAHEED KARIM, Civil Application No. 27 of 2007 (Unreported) which was quoted with approval in the case of NATIONAL BANK OF COMMERCE LIMITED VS. MAHAMOOD SALUM CHIBANGO MHINA AND 2 OTHERS, Civil Application No. 472/17 of 2016 stated interalia:- "What constitutes sufficient reasons is left for the Court's discretion. In this context the Court will accept either a reason that prevented an Applicant from making the essential steps in time or other reason why the intended appeal should be allowed to proceed though out of time." It is crystal clear from the above extracts that the reasoning of the Learned Chairman of the District Land and Housing Tribunal was and is indeed sound improper in law which I see justifiable reason to allow the Appeal. In its totality, I am of the opinion that the Appellant had advance sufficient reason which prevented him from entering appearance on the date of hearing. Sickness especially with some supporting evidence like the one in this matter is sufficient reason to warrant the Court to grant the prayer sought. For the foregoing reasons, I find merits in the Appeal. Consequently, the Appeal is hereby allowed with no order as to costs. Right of Appeal Explained. L. E. MGONYA JUDGE 17/8/2018 COURT: Judgment delivered before Hon. S. Ding'ohi, Deputy Registrar in the presence of both parties and Ms. Caroline RMA on 17th day of August, 2018 in chamber No. 18. JUDGE 17/8/2018 8