CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MKUYE. J.A.. RUMANYIKA. J.A. And MPEMU. J.A/1 CIVIL APPEAL NO. 98 OF 2022 ANDREW PETER TANGO.......................................................... APPELLANT VERSUS HUSSEIN IDDI KANYINYI.................................................. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Arusha) (Robert, J.) dated the 13th day of July, 2020 in Land Appeal No. 23 of 2019 JUDGEMENT OF THE COURT 11 * & 20th February, 2025 MKUYE. J.A.: The respondent, Hussein Iddi Kanyinyi, instituted Application No. 92 of 2009 in the District Land and Housing Tribunal of Arusha at Arusha (DLHT) alleging trespass to the suit land by the appellant, Andrew Peter Tango. The respondent claimed to be the lawful owner of the suit land, Plot No. 278 of Block "A" located at Leganga area with CT No. 25620 in Meru District and the Region of Arusha. He alleged that, the suit land was allocated to him by Meru District Council after fulfilling the procedural requirements. The respondent, therefore, claimed for among other i orders, a declaration that he is the lawful owner of the suit land; a permanent injunction restraining the appellant, his agents and servants from further trespass into the suit land; demolition of the house constructed on the suit land; general damages for trespass; costs of the suit and other reliefs as the Tribunal deemed fit to grant. The appellant, contested the respondent's claim. He contended that the suit land formed part of the land which was originally owned by Paul Naibala who later sold it to him in 2007. Apart from that, the appellant claimed that prior to the sale, he was a tenant since 2003 until 2007. It is also gathered from the record of appeal that in the course of the trial of this matter and before its determination on merit by the DLHT, the application faced several setbacks. Notably, on 3rd November, 2009, the application was dismissed for want of prosecution. Realizing that he was late to take any step, the respondent on 8th February, 2011 filed Misc. Land Application No. 92 of 2010 for extension of time to file an application for setting aside the dismissal order. On 28thJune, 2011, the Chairman of the DLHT set aside the dismissal order instead of granting the extension of time sought. On 12th October, 2011, the matter proceeded ex-parte as the appellant entered appearance while the respondent did not appear. After the conclusion of hearing on 07th December, 2011, the respondent was declared the lawful owner of the disputed land. Thereafter, the respondent successfully applied for execution and the appellant was ordered to give vacant possession. The matter did not end there, as on 31st January, 2012 the appellant filed Misc. Land Application seeking to set aside an ex-parte judgment and execution order. However, there is no decision indicating whether the application was successful or not. Nevertheless, the record reveals that the matter proceeded inter-partes and on 2nd November, 2018 the judgment thereof was entered in favour of the appellant. Aggrieved with the DLHT's decision, the respondent successfully appealed to the High Court of Tanzania. The latter found that the appellant could not be a lawful owner of the suit land in the absence of any written agreement bearing in mind that the purported sale agreement was not admitted by the DLHT even for identification purpose. Dissatisfied with that decision, the appellant has filed this appeal fronting three grounds of appeal as hereunder: 1. The learned Judge erred in not finding that the respondent never filed application to set aside the trial tribunal's order o f J d November, 2009 which dismissed Application No. 92 o f 2009 for non-appearance. 3 2. That, the learned Judge erred in law in not finding that hearing o f the application inter-partes was defective for want o f order ofsetting aside the ex-parte judgment dated 7th December, 2011. 3. That, the learned Judge erred in law in not finding that the trial tribunal's proceedings and decision were nullity for non-involvement and changing o f assessors during the hearing o f the application. When the appeal was called on for hearing, Mr. John Materu, learned advocate appeared representing the appellant whereas the respondent was represented by Ms. Christina Kimale, also learned advocate. Both learned counsel filed written submissions in support and against the appeal within the prescribed time. They each sought to adopt them so as to form part of their oral submission. Having examined the grounds of appeal fronted by the appellant and the record of appeal, we think, the 1st and 2nd grounds may suffice to dispose of the entire appeal without necessarily dealing with the 3rd ground of appeal. The appellant's complaint in the 1st ground of appeal is on the first appellate court's failure to hold that the respondent never filed an application to set aside the trial tribunal's order of 3rd November, 2009 which dismissed Application No. 92 of 2009 for non-appearance. It is the appellant's argument that in terms of regulation 11(1) (b) and (2) of the Land Disputes Courts (The District and Housing Tribunal) Regulations 2013, GN No. 174 of 2013, (hereinafter to be known as "The District and Housing Tribunal Regulations"), the DLHT is empowered to dismiss the application for non-appearance of the applicant on the day fixed for hearing without good cause. However, such dismissal order may, upon application to be made within thirty days of the dismissal, be set aside by the Tribunal if it thinks fit to do so and in case of refusal, the aggrieved party may appeal to the High Court. It is argued that, the dismissal order found at page 24 of the record of appeal, was issued on 3rd November, 2009. That, although the said order appears to have been set aside on 19th May, 2011 (see page 33 of the record of appeal), the record shows that before the Tribunal, there was an application for extension of time to file application to set aside the dismissal order which was argued. However, it is the appellant's argument that, according to the record, the Chairman raised the issue of restoration suo motu and made a ruling to that effect without according the parties the right to be heard. To bolster his argument, the learned counsel referred us to the case of NUTA Press Limited v. MC Holding and Another, Civil Appeal No. 80 of 2016 [2021] TZCA 665 (3 November 2021) Tanzlii. It was therefore argued that, the infraction did not only infringe the parties the right to be heard but also vitiated all proceedings which followed after 19th May, 2011. The 2nd ground of appeal is with regards to the learned Judge's failure to find that the hearing of the application inter parties was defective for want of an order for setting aside the ex-parte judgment dated 7th December, 2011. In his written submission, the appellant argued that, since 31st January, 2012 when the application for setting aside the ex-parte judgment was made and when the Chairman had ordered ex-parte hearing, there is nowhere in the proceedings showing that the respondent was served with summons in respect of the said application; or that the parties were accorded right to be heard and the ruling to that effect was made. Yet, the appellant argued, despite the execution order on 25th February, 2013, the parties appeared and hearing commenced afresh. To fortify the argument on the right to be heard, the appellant referred us to the case of Kumbwandumi Ndemfoo Ndossi v. Mtei Bus Services Limited, Civil Appeal No. 257 of 2018 [2021] TZCA 23 (19 February 2021) c- Tanzlii. In his oral submission, Mr. Materu emphasized that, there is nowhere in the record of appeal indicating that such application for setting aside the ex-parte judgment and execution was heard and determined. However, it is on record that the matter (Application No. 92 of 2009) was heard inter partes on 28th November, 2013. In this regard he argued that, this vitiated the proceedings as the DLHT lacked jurisdiction to entertain the matter. In response, Ms. Kimale contended that looking at pages 32 and 33 of the record of appeal, there is a reflection that there are two applications filed by the respondent which the DLHT dealt with. She was of the view that, on the same date, it appears some pages were missing in the record of appeal or rather page 32 was confusing as it shows that, the advocate for the respondent was heard on the application for extension of time to file application to set aside the dismissal order and the ruling thereof was fixed to be on 26th November, 2011 at 12:30. Yet, the record also shows that, on the same date, a ruling was issued to the effect of setting aside the dismissal order for non-appearance of the respondent which, essentially, was granted thus restoring the dismissed application to be heard inter partes. At another stage, she argued that, two applications were heard and determined though it did not come out clearly. In relation to the 2nd ground of appeal, although initially, Ms. Kimale resisted it, on further reflection, she conceded that the procedure was flouted, and insisted that the anomaly rendered the matter to be a nullity 7 with the only remedy of nullifying the relevant part of proceedings from that date. In rejoinder, Mr. Materu reiterated his submission in chief. He then, urged the Court to nullify all the proceedings and judgments of both courts below. He also pressed for costs. Having examined and considered the grounds of appeal, record of appeal and both written and oral submissions from either side, we think the main issue for this Court's consideration is whether the appeal is meritorious. Starting with the 1st ground of appeal, we agree with the learned advocate for appellant that regulation 11 of the District and Housing Tribunal Regulations empowers the DLHT to dismiss the application for non-appearance of the applicant. In this case, we gather from the record of appeal that, Application No. 92 of 2009 was instituted before the DLHT at Arusha on 21st May, 2009 and was placed for the first time before the Chairman on 2ndJune, 2009. The same was called on before the Chairman on several occasions but the applicant did not enter appearance. When the matter was called on before the Chairman on 3rd November, 2009, Dr. Mchami, learned counsel for the applicant implored the trial tribunal to dismiss it for want of prosecution as the applicant seemed to have no interest with his case, which prayer was granted and the matter was dismissed with costs for non-appearance as per regulation 11(1) (b) of the District and Housing Tribunal Regulations. (See page 23 of the record of appeal). However, on 8th February, 2011 Misc. Land Application was lodged by the applicant (the appellant herein) under section 14 (1) of the Law of Limitation Act, Cap 89 R.E. 2002 seeking the DLHT to grant extension of time to file an application to set aside the dismissal order made by the Tribunal for non-appearance in Application No. 92 of 2009, (See page 25 of the record of appeal). On 19th April, 2011 as shown at page 32 of the record of appeal, Ms. Kimale, learned advocate for the applicant made submissions before the DLHT on the application for extension of time to file application to set aside the dismissal order for non-appearance of the applicant. She also urged the Tribunal to entertain the said application ex- parte as the respondent was duly served. Having heard the submissions, the DLHT scheduled the ruling thereof to be on 26th May, 2011 at 12:30. Surprisingly enough, on the same date (19th April, 2011) the DLHT issued a ruling as shown at pages 32 and 33 of the record of appeal which, in essence, granted the "purported" application for setting aside the dismissal order for non-appearance which was issued by the Tribunal on 3rd November, 2009. For ease of reference, we leave a portion thereof to speak for itself: "... I have been satisfied with the submissions o f the applicants especially on the sudden death o f his former counsel who was attending the matter and on his illness as shown to the attached medical certificates, thus, the applicant's prayer is grantedthe dismissal order for non-appearance issued by this Tribunal on the J dday o fNovember, 2009 is set aside and the matter is restored to be heard inter-partes on merit, the respondents to be notified. No order as to costs is made. It is accordingly ordered. Sgd: 19/05/2011" As it is, according to the above excerpt, the order of the DLHT dated 3rd November, 2009 which dismissed the application for non-appearance was set aside with an order for the parties to be heard inter partes. Then, the matter was again set for mention on several occasions (four times) until on 12th October, 2011, when the hearing took off (see page 35 of the record of appeal) after the counsel for the applicant (Ms. Kimale) prayed to proceed ex-parte which prayer was granted and the hearing commenced whereupon Hussein Iddi Kanyinyi (PW1) testified. PW2 and 10 PW3 also testified and the Judgment thereof was handed down on 7th December, 2011. On 19th December, 2011 upon application by the applicant, the DLHT issued an execution order whereby the judgment debtor was ordered to give vacant possession from the suit land and to demolish erected structures within the suit land. Looking at the record of appeal from pages 60 to 100, it appears that the proceedings of the matter started afresh. This is supported by the submission made on 25th September, 2013 before the DLHT by Ms. Kimale when she intimated, among others that, the matter was heard and the judgment pronounced. In the manner that seemed to refer to the order setting aside the dismissal order for non-appearance, she said: "the application for setting aside the ex-parte judgment was successful but the situation is still the same (see page 62). Thereafter, fresh issues were framed, hearing proceeded and the judgment thereof was delivered on 2nd November, 2018 (see pages 135 - 142 of the record of appeal) to which this appeal originates. From the above revelation, it is crystal clear that following the dismissal of the suit for non-appearance of the applicant, the applicant li filed an application for extension of time to file application for setting aside the dismissal order. What is vivid at page 32 of the record of appeal is that the advocate for the applicant made submissions in relation to the said application for extension of time to lodge an application to set aside the dismissal order. We say so because, one; the submission made was premised on the application made under section 14 (1) of the Law of Limitation Act which is for extension of time. Two, the extension of time sought was specifically intended to enable the applicant file application to set aside the dismissal order for non-appearance of the applicant. However, though the ruling of the said application that was heard ex-parte was scheduled to be on 26th May, 2011 at 12:30, there was another ruling which was issued on the same date. Interestingly enough, the said ruling takes off by stating the type of the application which was for setting aside the dismissal order for non-appearances and that the applicant failed to appear despite having been properly served, and therefore the application was determined ex-parte. But this was not the application to which the submission was made before the DLHT on that date. Apart from that, after having heard the applicant's advocate's submission, the Tribunal granted the prayer and ordered that "the dismissal order for non-appearance issued by the Tribunal on 3 d November, 2009 is set aside and the matter is restored to be heard inter 12 partes on merit..."It means that the DLHT issued such an order without having the relevant application in place. Neither did it accord the parties the right to be heard on the matter as enshrined under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, Cap 2 R.E. 2002 and held in the case of NUTA Press Limited (supra). Also, in the case of Kumbwandumi Ndemfoo Ndossi (supra) while citing the case of Abbas Sherally and Another v. Abdul S. H. M. Fazalboy, Civil Application No. 133 of 2002 [2005] TZCA 105 (17 November 2005) Tanzlii, the Court observed that: " The right o f a party to be heard before adverse action is taken against such party has been stated and emphasized by courts in numerous decisions. That right is so basic that a decision which is arrived at in violation o f it wiii be nullified even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach o f natural justice." In the case of Kumbwandumi Ndemfoo Ndossi (supra), the Court went further to observe that a denial of the right to be heard in any proceedings would vitiate the entire proceedings. Again, we note that the DLHT's order setting aside the dismissal order for non-appearance issued by the Tribunal on 3rd November, 2009 13 was not the order that was sought in the application for extension of time that was before the Tribunal. This state of affairs left the application for extension of time which was before the DLHT undetermined and yet determined the matter that was not before it prematurely. As a result, this had the effect of rendering the order that was made to lack the legs to stand on as it was determined prematurely before time was enlarged for it to be lodged in court. As such, the Tribunal lacked jurisdiction to entertain it. This is not the first time this Court is confronted with a similar situation. In the case of Sebastian Stephen Minja v. Tanzania Harbours Authority, Civil Application No. 107 of 2000 (unreported), the Court allowed an application for reference having found that the single Justice of the Court granted extension of time to file an appeal out of time while the application which was before him was for leave to appeal. Again, in the case of The Managing Director, Kenya Commercial Bank (T) Limited and Another V.s Shadrack Ngege, Civil Application No. 7 of 2009 (unreported) in which the application before it was for leave to appeal but the High Court dealt with and determined an application which was not before it for a certificate on point of law, the Court had this to say: 14 "... we are o f the settled mind that the High Court fundamentally erred in law in failing to determine the application for leave to appeal and instead purported to determine an application for a certificate on point o f law which was not before it The error cannot be left to stand as it prejudiced the applicants, we accordingly have no option but, to invoke the court's revisionai powers to nullify and set aside the ruling and order... " Yet, in the case of William Getari Kagege v. Equity Bank and Another, Civil Application No. 24/08 of 2019 [2021] TZCA 185 (7 May 2021) Tanzlii, when the Court was confronted with almost a similar scenario, it observed that: "... by granting the applicant the extension o f time to file an appeal to the Court o fAppeal which was not before it, the High Court, certainlyjumped the gum. This brought confusion complained o fby the applicant." Even in this case, being guided by the above cited authorities, we agree with both learned counsel that the DLHT did not determine the application which was before it but granted the applicant reliefs which he did not seek at that particular time. The applicant had prayed for extension of time to file application to set aside dismissal order for non- appearance but the DLHT granted an order for setting aside a dismissal 15 order for non-appearance of the applicant which was yet to be filed in the court for being time barred. On the other hand, by granting an order for setting aside that dismissal order it means, the DLHT did so without according the parties the right to be heard. There is no doubt that this infraction went to the root of the matter which amounted to a fundamental procedural error which occasioned a miscarriage of justice to the parties. On the other hand, this omission brought about confusion which vitiated the proceedings as whatever proceeded before the DLHT from that date was a nullity. If we may go a step further, the confusion is depicted in the course of trial as it seems the order setting aside the dismissal order was wrongly construed. This brings us to the second ground of appeal in which the complaint is that, the hearing inter-partes of the application was defective as there was no order for setting aside the ex-parte judgment of 7th December, 2011. It is notable at page 62 of the record when the advocate for the applicant informed the Tribunal among others that, the matter was heard ex-parte and the judgment delivered and application for setting aside judgment was successful. However, our perusal in the record of appeal has revealed that the application for setting aside the ex-parte judgment delivered on 14thJanuary, 2011 and its resultant decree and setting aside 16 the ex-parte execution order issued on 19th December, 2011 was (page 55) filed on 31st January, 2012. However, the order setting aside the ex- parte judgment is nowhere to be seen in the record of appeal much as the counsel for the applicant so submitted in the proceedings of the DLHT dated 25th September, 2013. This means that, hearing inter-parties proceeded without first setting aside the ex-parte judgment that was delivered on 2/11/2018 (Mr. Makombe Chairman) (see pages 123 - 130 of the record of appeal) was a fundamental omission as the DLHT had no such jurisdiction by reason of being functus officio - see Kamundi v. R, [1973] E.A 540 where the Court of Appeal for East Africa held that ''‘ The court becomes functus officio when it disposes o f the case by verdict o f guilty or passing a sentence or making some orders finally disposing o f the case" as it happened in this case. In this regard, we find merit in both the 1st and 2ndgrounds of appeal and we allow them. All in all, these infractions vitiated the proceedings with the effect of rendering them a nullity. In the event, we nullify the proceedings of DLHT from page 32 dated 19th April, 2011 and its resultant judgment together with the proceedings and judgment of the High Court as they emanated 17 from a nullity. We further order that, the matter be remitted to the DLHT of Arusha for composition of a fresh ruling on the application for extension of time to file application for setting aside a dismissal order for non- appearance of the applicant by the same Chairman, if he is still in service and, if he is not available, by another Chairman of the DLHT. Given the circumstances of the matter, we make no order as to costs. Order accordingly. DATED at ARUSHA this 19th day of February, 2025. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 20th day of February, 2025 in the presence of Ms. Christina Kimale, learned counsel for the Respondent also holding brief for Mr. John Materu, learned counsel for the Appellant is hereby certified as a true copy of the original. F.W MTARANIA DEPUTY REGISTRAR COURT OF APPEAL 18