Ruling Miscellaneous Land Case Application No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI MISCELLANEOUS LAND APPLICATION NO. 27 of 2023 (C/F Misc. Application No. 22 of 2022, Misc. Application No. 342 of 2021and Misc. Application No. 80 of 2019 in the District Land and Housing Tribunal for Moshi at Moshi; originating from Land Case No. 50 of 2017 at Mji Mpya Ward Tribunal) ANJELINA CHARLES NGOWI………..…………….…….......... APPLICANT VERSUS GILBERT CHRALES NGOWI…….......................................... RESPONDENT RULING 29th October & 05th December, 2024 MONGELLA, J. The applicant herein preferred this application under Section 79(1) (c) and 95 of the Civil Procedure Code [Cap 33 R.E 2019] and Section 43(1) of the Land Disputes Courts Act [Cap 216 R.E 2019] seeking for revision against the order issued by Hon. R. Mtei- Chairman in respect of Misc. Application No. 22 of 2022. The application is duly supported by the sworn affidavit of one Gideon B. Mushi, the applicant’s Counsel. In contest, the respondent filed his counter affidavit. Page 1 of 9 The brief facts of the application are to the effect that: the applicant was the decree holder in respect of Misc. Application No. 80 of 2019 in the District Land and Housing Tribunal for Moshi at Moshi (hereinafter, the Tribunal), before Hon. P.J. Makwandi- Chairman. The said application was instituted for execution of a decree issued by Mji Mpya Ward Tribunal (WT) in respect of Land Case No. 50 of 2017. When the Ruling in Misc. Application No. 80 of 2019 was delivered on 12.12.2019, the applicant discovered the size of the suit land in the WT judgement differed from the actual size of the land. In the said application the land was 23 x 11 paces while the actual size of the suit land was 19 x 15 meters. Because of the variance, the Tribunal broker failed to hand over the suit land to the applicant. Acting on the applicant’s behalf, Mr. Mushi wrote a letter to the Tribunal seeking for rectification of the size of the suit land from 23 x 11paces to 19 x 15 meters. On 07.01.2020, one Faustine Felix Ngowi acting on behalf of Joseph Olima Lingowi clan also wrote a letter to the Tribunal stating that the suit land was 19 x 15 meters. The applicant thus filed Misc. Application No. 22 of 2022 seeking for review. Allegedly on 31.05.2023 the application for review was dismissed as the applicant had not attached the Ruling in Misc. Application No. 80 of 2019 by the WT. Page 2 of 9 The application was resolved by written submissions whereby the appellant was represented by Mr. Gideon Mushi, learned Advocate while the respondent stood unrepresented. Prior to analysing his submission, I wish to note that, Mr. Mushi made several submissions in relation to the history of the matter. However, I find no need to reproduce the same as it appears to be a replica of the facts I have already summarised hereinabove. In relation to the gist of the matter at hand, Mr. Mushi averred that after the Tribunal had issued a Ruling in respect of Misc. Application No. 80 of 2019, the applicant requested for a copy of the said Ruling to no avail. That the applicant then decided to file Misc. Application No. 22 of 2022 without the said Ruling so as to be within time. He alleged that it was the duty of the Tribunal to visit and call its sown record as Misc. Application No. 80 of 2019 was concluded by it. The learned Counsel alleged that pursuant to Section 79 (1) (c) and 95 of the Civil Procedure Code and Section 43 (1) of the Land Disputes Courts Act, this Court is vested with absolute mandate to call and examine the Tribunal record to see whether the Tribunal exercised its powers illegally or with material irregularity. He pointed out that the controversy in this matter is the anomaly in respect of the size of the suit land which was to be handed to the applicant. Finalizing his submission, Mr. Mushi prayed for the application to be granted as the issue of size of the suit land is crucial for execution. Page 3 of 9 He alleged that it was wise for the application to be granted and an order for re-trial be issued to the parties so that the matter could be heard afresh before the Tribunal or court with competent jurisdiction. In reply, the respondent challenged the application averring that it was frivolous, unfounded and grossly misconceived. He contended that the applicant is herein requesting for revision of the decision of this Court in Misc. Application No. 22 of 2022. However, he said, the same was only struck out for being incompetent and not dismissed. He alleged that the application was not determined finally and conclusively as there was never a competent application before the Tribunal. In his view, since the application was struck out, the proper cause of action was for the applicant to rectify the error and thereafter filing matter afresh. He fortified his stance with the case of Pita Kempap Ltd. vs. Mohamed I. A. Abdulhussein Civil Application No. 128 of 2008 (CAT at Dar es Salaam, unreported). Arguing further, the respondent contended that this application was prematurely brought. He alleged that the Tribunal could not be blamed for allegedly failing to review the application as there was no competent application before it. He reiterated his stance that the applicant ought to have corrected the anomaly that rendered the application incompetent in the first place then refile the same subject to law of limitation. The respondent further contended that the mandate to rectify clerical or typographical and/or arithmetical errors in court Page 4 of 9 decisions arising from any accidental slip or omission is solely vested on the court that passed the impugned decision. To that effect, he referred to Section 96 of the Civil Procedure Code. In the premises, he contended that this Court that lacks the power to review the mentioned decision. The respondent further alleged to have pleaded in his affidavit about the family meeting held on 26.10.2008 and 15.04.20219 indicating that the suit land was 16 x 7.5 meters only with boundaries as follows: North by a road; East by one Martha Charles Ngowi; South by one Angela Charles Ngowi and West by a road. He contended that the 19 x 15 meters were never awarded by the WT rendering the claim frivolous, unfounded and grossly misleading. The respondent further challenged the application at hand on the ground that there is no error material on the merit of this case involving injustice or any sufficient cause to substantiate the grant of this application as the applicant alleges. In the circumstances, he called for dismissal of the application. I have considered the rival submissions of both parties as well as gone through the record placed before this Court. As I have indicated in the brief background of this matter, the applicant was the decree holder in Land Case No. 50 of 2017 at Mji Mpya WT or perhaps Shauri Na. 13 of 2008 before the same WT. This fact was pleaded by the respondent, but he did not bother to prove. The matter at hand can be traced from the execution of the main case instituted vide Misc. Application No. 80 of 2019. In the said case, the Page 5 of 9 Tribunal ordered the execution of the WT decision to be conducted. However, it was in the said execution that the suit land was found to be different in sizes. The applicant eventually filled Misc. Application No. 22 of 2022 seeking to review the decision of the Tribunal in connection with the execution filed. The Tribunal record shows that on 31.05.2023, Mr. Mushi addressed the Tribunal informing the same that the parties had failed to resolve their dispute amicably. He then prayed for the Tribunal to fix the date for hearing. The respondent replied that he had communicated the concern with his clan members and the process was underway. Mr. Mushi however, denied that averment. It was after the exchange between the parties that the Tribunal Chairman informed the parties that he had gone through the application and found that the applicant had not annexed the decision she sought to challenge. Alleging that this caused the Tribunal to fail to identify the decision made in the said application; he found the application incompetent before it and proceeded to strike it out without costs. It is apparent that the order issued by the Tribunal on the issue of competence of the application was never raised at the Tribunal by the parties. The issue was instead raised by the Tribunal suo motu and decided upon. This move was erroneous as the parties were not accorded an opportunity to submit on the issue. The law is clear that where a court raises an issue suo motu it ought to accord parties the right to address it on the issue. The omission thereof Page 6 of 9 occasioned by the Tribunal is fatal as the rules of natural justice to wit; the right to be heard, was violated. This rule is so safeguarded to the extent that it has to be adhered to even if the court would have entered the same decision after hearing the parties. Addressing the consequences on omission to afford parties the right to be heard, the Court of Appeal in Petro Robert Mnyavilwa vs. Abel Mwalibeti Others (Civil Application No 640 of 2021) 2024 TZCA 108 (23 February 2024) TANZLII, stated: “As regards the issue of denial of a right to be heard raised by the applicant herein, we recall the stance which has been taken several times and repeatedly by the Court in a plethora of its decisions. We stress that courts cannot have any excuse to decide matters that adversely affect the rights of the subjects without affording them a hearing. For, the omission abrogates principles of natural justice.” In a scenario similar to this case, the Court of Appeal in Charles Christopher Humprey Kombe vs. Kinondoni Municipal Council (Civil Appeal No 81 of 2017) 2020 TZCA 1932 (12 June 2020) faced a situation where the High Court had raised an issue suo motu but did not accord the parties the right to be heard. The Court stated: “On the authority of the decisions cited above, we are certain in our minds that the High Court erred in basing the decision of the case on the issue raised suo motu without according the parties the right to be heard on that issue.” Page 7 of 9 See also; Mbeya – Rukwa Autoparts and Transport Ltd vs. Jestina George Mwakyoma [2003] TLR 251. The effect thereof is for the decision reached to be declared a nullity and quashed. As already stated, it does not matter whether the same decision would have been reached had the parties been accorded the said right. See, Abbas Sherally and Another vs. Abdul S. H. M. FazaI boy, Civil Application No. 33 of 2002 (unreported) where the Court stated: “The right of a party to be heard before an adverse action is taken against [him] has been stated and emphasized by courts in numerous decisions, that right is so basic that a decision which is arrived at in violation of it will 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 of natural justice." See also: National Microfinance Bank PLC Another vs. Lello Laurent Sawe (Consolidated Civil Appeals No 385 A 339 of 2021) 2024 TZCA 17 (6 February 2024). As stated in the above decisions, the Tribunal Chairman’s act of deciding to strike out Misc. Application No. 22 of 2022 without according the parties the right to address it on its competence was a clear violation of the right to be heard. As such, the omission is fatal rendering the order issued therein a nullity. To this juncture, I find the issue on the right to be heard already decided sufficing to dispose this matter. As such, I shall not dwell on Page 8 of 9 the rest of the issues advanced. In fact, since the matter challenged before this Court was not determined on merit by the Tribunal, this Court cannot be moved to determine it on merits of the claim as presented in the applicant’s supporting affidavit. In consideration of my observations hereinabove, I nullify the Tribunal decision issued on 31.05.2023 in Misc. Application No. 22 of 2022. Subsequently, I set aside his order striking out the applicant’s application. I order the matter to be remitted back to the trial Tribunal for it to be determined afresh. Shall the Hon. Chairman still find the issue he raised suo motu pertinent to be addressed, he should first accord the parties the right to be heard before deliberating on it. Considering that the error was occasioned by the trial Tribunal, I order for each party to bear his/her costs. Dated and delivered at Moshi on this 05th day of December, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 9 of 9