angela sostenes vs sawia john 2018 tzhc 2650 24 august 2018

IN THE HIGH COURT OF TANZANIA DISTRICT REGISTRY OF BUKOBA AT BUKOBA LAND APPEAL NO. 28/2016 (Arising from Application No. 201/2014 of the District Land and Housing Tribunal for Kagera at Bukoba) ANGELA SOSTENES------------------------------ APPELLANT VERSUS SAWIA JOHN (Administratix of the estate of the late John Paul)-------------------------------------- RESPONDENT JUDGMENT 16/7/2018 & 24/8/2018 Kairo, J. The appeal before me was preferred by Angela Sostenes after being dissatisfied by the decision of the District Land and Housing Tribunal (DLHT) 1 of Kagera at Bukoba in Land Application No. 201/2014 delivered on 17/6/2016. Briefly the facts than can be discerned from the court record is that, the Respondent Sued Sebastian Rugeyamba as 1st Respondent and Angela Sostenes (the Appellant herein) as a 2nd Respondent for encroachment of land alleged to belong to the late John Paul; the Respondents husband. In their joint written statement of defense (WSD), the 1st Respondent denied the allegation asserting that he has bought the land in dispute from one Deodatus Sosthenes who had earlier purchased it from the late John Paulo, Together with the WSD, the respondents therein raised P.Os which were dismissed. Eventually the DLHT ordered the matter be referred to Katoma Primary Court for final distribution of the estate. This is the decision which aggrieved the Appellants hence this appeal raising two grounds of appeal as follows: 1. That the learned chairman gravely erred in law by ordering for the distribution of the suit land after referring the matter to Katoma Primary court in total disregarding the stage of the proceedings relating to the application for setting aside the dismissal order that was made on 23/6/2015. 2. That the trial tribunal immensely erred in law by prematurely entering into the order for the distribution of the land in contention without 2 prior order for undertaking of the legal representation procedures of the late Sebastian Rugeyamba for the purposes of determining the rightful ownership and occasioned failure of justice. The Appellant thus humbly prays the court to allow this appeal by:- i. Reversing the order entered by the trial tribunal and order the matter to proceed with the proper proceedings. ii. Cost of this appeal. iii. Any other orders and reliefs this court would deem just to grant. The Respondent generally refuted all the grounds of appeal and prayed the court to dismiss this appeal with cost for lack of merits. She contended that the District Land and Housing Tribunal didn't order distribution but returned the matter to Katoma Primary Court for it to execute its orders. For the 2nd ground of appeal, she contended that the Appellant has denied being concerned with the land in dispute, the denial which caused the District Land and Housing Tribunal to revert the matter to Katoma Primary Court. She thus prayed this court to dismiss this appeal with cost. The Appellant is being represented by the learned Counsel Lameck Erasto while the Respondent is self represented. When invited to amplify the grounds of appeal, Advocate Erasto submitted that the Respondent after being appointed to administer the estate of her late husband one John Paulo in Probate and Administration Cause No. 17/2014 instituted at Katoma Primary Court, she sued Sebastian Rugeyamba 3 and Angela Sosthenes in Land application No. 201/2014 claiming that they have encroached the land belonging to his deceased husband. He went on that in their joint WSD, the 1st Respondent argued that he has bought the land in dispute from one Deodatus Sosthenes who had earlier bought the same from the late John Paul. The Respondent therein also raised P.Os which on 17/4/2015 were overruled and the court ordered the hearing of the main application to proceed on 23/6/2015. The application seemed to have been dismissed for want of prosecution. Advocate Lameck went on to submit that the Respondent instituted an application to restore the dismissed application in the same file and the Appellant together with the late Rugeyamba who was the 1st Respondent were served and filed their counter affidavit accordingly on 14/12/2015. The Advocate further submitted that on 17/6/2016 when the application to restore the dismissed application was scheduled for hearing, the District Land and Housing Tribunal was informed that the 1st respondent has passed away. However instead of adjourning the matter so as to direct the parties, being laypersons to appoint an administrator of Sebastian Rugeyamba, the District Land and Housing Tribunal ordered the matter revert to Katoma Primary court so that distribution can proceed which the Advocate argued to be wrong as the application before the District Land and Housing Tribunal concerned the restoration of the dismissed application. He further argued that the District Land and Housing Tribunal erred in law to order distribution of the land in dispute before appointment of the administrator of the late 4 Rugeyamba who would have come to defend the claim and the Tribunal would have determined its ownership. As such the order has occasioned failure of justice, argued the Advocate. He further insisted that the District Land and Housing Tribunal order of 17/6/2016 was given erroneously and that even if Sebastian Rugeyamba would have been present, the matter was for hearing the application to restore the application dismissed on 23/6/2015. He argued that the attacked order was given in a vacuum as in fact there was no case before restoring of the same. Advocate Lameck submitted that the District Land and Housing Tribunal after getting the information concerning the demise of Sebastian Rugeyamba, the District Land and Housing Tribunal was required to adjourn the case so as to avail time to parties to get an administrator to be substituted. He added that the parties being layperson were to be guided by the Chairman as per Order XVII R (1). He went on that the Law of Limitation Act Cap 89 Part III item 16 provides that where a party dies, 90 days shall be availed within which to appoint an administrator to be substituted in a case. He went on that, the Chairman didn't do that, as a result the Respondent distributed the property not belonging to the deceased. With regards to the 2nd ground Advocate Lameck submitted that the District Land and Housing Tribunal erred by failing to determine the ownership of the suit land. He argued that when the order under attack was given, Sebastian Rugeyamba was died already and the court was informed accordingly. Thus the court gave the order without hearing the matter. He 5 argued that giving orders or decision without hearing the parties has the effect of nullifying the same and cited the case of Mbeya Rukwa Auto Parts and Transport Ltd vrs Jestina Mwakyoma [2003] TLR 251 to support his argument. He thus prayed the court to find out that the District Land and Housing Tribunal erred to give the orders at issue. The Respondent in her reply submitted that Rugeyamba was not a respondent but only Angela whom she argued that the matter was decided against her. She went on that, the Appellant told the court that the Shamba in dispute was bought by his brother Rugeyamba and that she is not concerned with the matter. The Respondent further submitted that, her application to restore the matter was granted on the hearing date, thus the same was restored. She further contended that according to record, the one concerned with the land in dispute was Angela (the Appellant herein) and not Sebastian. The Appellant brought him after the decision was delivered against her adding that there is a decision of Katoma Primary Court to that effect. As a rejoinder, Advocate Erasto contended that the Respondent was misdirecting the court. He went on that the Appellant has never had a case with the Respondent. He further submitted that the Respondent went to Katoma Primary court to be appointed administratrix of her late husband and that after being appointed that's when she instituted application No 201/2014 suing both Rugeyamba and Angela. He further argued that there 6 was no case which was decided against the Appellant adding the submission to be new claims. Advocate Erasto also refuted the argument that there was an order to restore the dismissed application as per the proceedings of the District Land and Housing Tribunal of 24/4/2016 or onwards, as such the case was never restored. He insisted this appeal be allowed as prayed. After going through the grounds of appeal and hearing the oral submissions amplifying the grounds of appeal and the reply thereto, the main issue for determination is whether or not the appeal is based on founded grounds. I will discuss the grounds of appeal collectively. The record reveals that application No. 201/2014 of the District Land and Housing Tribunal which its decision is being impugned in this appeal was dismissed by for want of prosecution on 23/6/2015. The said application was instituted by the Respondent against the Appellant and the late Sebastian Rugeyamba who was the 1st Respondent claiming the duo to have encroachment the land in dispute which belonged to her late husband. The record further reveals that there was a move by the Respondent to set aside the dismissal order of 23/6/2015. Following the completion of the pleadings, the application for restoration was scheduled for hearing on 17/6/2016. On the scheduled date, the District Land and Housing Tribunal was informed and recorded that he 1st respondent is dead and thereby ordered the return of the matter back to Katoma Primary Court for finalization of the 7 distribution of the estate. This is the order that is being challenged by the Appellant. It is a legal requirement that, once the court is informed of the demise of a party to the proceedings, the court is enjoined to adjourn the matter so as to pave way to the appointment of the administrator of the deceased party. The would be administrator shall step into the shoes of the deceased person to either prosecute or defend the suit as the case may be. The court had powers to order for an adjournment under Order XVII R 1 which provides "at any stage of the suit, the court may if sufficient cause is shown, grant the parties or any party of them and may from time to time adjourn the hearing of the suit". But further to that the law provides also the time within which to have legal representative to replace the deceased person appointed, which is 90 days. In the matter at hand, the District Land and Housing Tribunal went on to give the order in dispute instead of availing the said time to parties so as to have a legal representative appointed to defend the matter before him. With due respect to the District Land and Housing Tribunal, the said omission was legally incorrect. To be precise, the order amounts to condemning the 1st respondent unheard which is against the principles of natural Justice. But further to that, right of hearing is a fundamental constitutional right in Tanzania by virtue of Article 6 (a) of the Constitution of the United Republic of Tanzania 1977 as amended from time to time. 8 In the case of Halima Hassan Mareale vrs Parastatal Sector Reform Commission and Another; Civil Application No. 81/1999, His Lordship Kisanga J, (as he then was) in insisting the importance of the right to be heard observed as follows: "the applicant must be afforded such an opportunity even if appears that he or she would have nothing to say or that what he or she might say would have no substance". The law is settled that any decision or order reached in contravention of one's right to be heard is a nullity. [Refer the case of Abbas Sherally and Another vs Abdul S.H.M. Fazalboy - Civil Application No. 33/2002 (unreported)] I thus agree with the argument by Advocate Lameck that the order at issue having been given without hearing the parties has caused failure of Justice and may put the estate of the late Sebastian Rugeyamba in jeopardy, thus has to be nullified. The Respondent has argued that Sebastian Rugeyamba was not a party but only Angela was (the Appellant). However the record reveals otherwise. In application No. 201/2014 parties were Sawia John (Respondent) against Sebastian Rugeyamba as 1st Respondent and Angela Sosthenes as 2nd Respondent thus her contention is not correct with much respect. Apart from the pointed out flaws the record also reveals that the matter was at the hearing stage of the application to set aside the dismissal order. I should confess that I have gone throughout the proceedings, but there is no order to reinstate the same. In the circumstance, the District Land and 9 Housing Tribunal could not make any order on the matter without first reinstating it. Legally the order of 17/6/2016 was a non-existing as the same was made in a vacuum as rightly submitted by Advocate Lameck. In fact there was no case before him to make orders for. The Respondent has argued that the matter was reinstated but with due respect, the proceedings doesn't support the said argument. As such the order was made in forgetfulness of the status of the case before the District Land and Housing Tribunal. Further scrutiny to the application No. 201/2014 which resulted to the orders under attack, the court has observed that the controversy or dispute concerns land ownership as the claimant (Respondent herein) claimed the land of her deceased husband was encroached and the 1st respondent claimed to have legally bought the land. In that respect thereof it was an error to order distribution of the same without first determining its ownership. The Respondent has argued that the 2nd Respondent has disassociated herself with the land in dispute. I have gone though the record and observed that there was one P.O among others which was raised to the effect that it was an error to join the 2nd Respondent (Appellant herein) as the land is owned solely by the 1st respondent. However the P.Os was rejected by the District Land and Housing Tribunal on 17/4/2015, as such the said argument is irrelevant at this stage. io In the foregoing analysis, it is the finding of this court that this appeal is meritorious. I accordingly allow it but with no order to cost as the confusion was caused by the DLHT. I further nullify the orders and proceedings of the District Land and Housing Tribunal. I also direct that the ownership issue of the land in dispute is to be dealt with the court that granted the letters of administration. Thus any party who has dispute over it should institute the same in the said court. It is so ordered. R/A explained. At Bukoba 24/8/2018 11 Date: 24/8/2018 Coram: Hon. L.G. Kairo, J. Appellant: Reported dead - Advocate Lameck Erasto Respondent: Absent B/C: R. Bamporiki Advocate Lameck Erasto: The matter is for Judgment. We are ready to receive it. Court: The matter is scheduled for Judgment. The same is ready and is read over before Advocate Lameck Erasto representing the Appellant in the absence of the Respondent in open court today.