AQWLINA ONESPHORYscanned

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 419 OF 2023 (Originating from Application No. 42 of 2019 Kibaha District Land and Housing Tribunal) AQWILINA ONESPHORY SILAYO T/A MALIASILI PHARMACY.....................................................................APPELLANT VERSUS 1 DCB COMMERCIAL BANK PLC............................... st RESPONDENT HARVEST TANZANIA LIMITED............................... 2nd RESPONDENT JUDGMENT 15th May 2024 & 24h May 2024 L. HEMED, J. AQWILINA ONESPHORY SILAYO T/A MALIASILI PHARMACY, the Appellant herein, was the one who instituted Application No.42 of 2019 at the District Land and Housing Tribunal for Kibaha against DCB COMMERCIAL BANK PLC and HARVEST TANZANIA LIMITED. In the said suit, the Appellant was challenging the intended sale of suit land located 1 at Plot No.99, Mapinga- Bagamoyo, Coast Region. She thus prayed for the following reliefs:- W A declaration that the Respondents7intention of selling by public auction Applicant's house is null and void. (b) Permanent order restraining the Respondent (sic) from selling the house. (c) Costs of application. (d) Any other or further reliefs as the Tribunal may deem fit." I have noted from the record of the trial Tribunal that the respondents disputed the claims by filing the written statement of defence. After the matter became due for hearing, it was adjourned several times due to various reasons including the absence of the Appellant herein or her advocate. On 18th July 2023 the matter was called for hearing, however, the counsel for the Appellant did not appear. The presiding chairman adjourned the matter with an order that in case the advocate fails to appear in the next hearing date, the Appellant/Applicant should prepare herself to proceed on her own. 2 The matter was called for hearing on 19th October 2023 but the Appellant's advocate failed to enter appearance. The trial Chairman compelled the Appellant to proceed on her own notwithstanding the absence of her advocate. Having called to address the Tribunal, the Appellant only submitted to have nothing against the respondents. She only prayed the respondents to extend time for her to settle the outstanding loan. Having submitted so, the trial Chairperson found the Appellant to have no cause of action against the respondents and thus proceeded to dismiss the entire suit. The dismissal order, maimed the Appellant hence the instant appeal on the following three grounds:- ”1. That the Honourable Trial chairman grossly erred in law and in fact for dismissing the application without according the right to be heard to the applicant. 2. That the Trial chairman erred in law and in fact for hold (sic) that the applicant has no cause of action without hearing. 3. That the Trial Chairman erred in law and in fact for dismissing the application in the absence of the Advocate for the Applicant." The matter proceeded exparteagainst the 2nd Respondent who opted not to appear despite being duly served. On 26th March 2024 the Appellant 3 appeared in person while the 1st Respondent was represented by Mr. Alexander Mzikila, learned advocate where it was directed for the matter to be argued by way of written submissions. The filing schedule was as fol lows:- - Submission in chief on or before 9th April 2024; - Reply submission by 23rd April 2024; and - Rejoinder submission by 30th April 2024. The Appellant promptly filed her submission in chief on 7th April 2024, that is within time. However, the 1st Respondent filed her reply submission on 3rd May 2024 instead of 23rd April 2024. The 1st Respondent did not obtain leave of the court prior to filing of her submission out of time. I have also noted that the Appellant filed her rejoinder submission on 9th May 2024 contrary to the order of this court which required her to file it by 30th April 2024. This being the case, I am not going to consider all submissions file contrary to the order of the court. I am holding so because it is trite law that anything done out of context of the courts order is as good as having not done. In the same vein, submissions which are filed out of time without the leave of the court are considered to have not been filed. In the circumstance of the instantaneous case, I will only consider the submission in chief, the 4 reply and rejoinder submissions will be ignored for having been filed out of time without leave of the court. Let me revert to the grounds of appeal. In respect to the 1st ground of appeal, it was the argument of the Appellant that, on the fateful date, she was taken by surprise for being told to continue with hearing on her own and that since she had not been given ample time to prepare to continue alone made her fail to present her case effectively. In her opinion, she was denied the right to be heard. She supported her argument with Article 13(6)(a) of the Constitution of the United Republic of Tanzania Cap.2 together with the decisions of the court in Anche Wedu Ltd and Two Others v. Treasury Registrar (successor of Consolidated Holding Corporation), Civil Reference No.3 of 2015, Bahati Musa Hamisi Mtopa v. Salum Rashid, Civil Application No. 112/07 of 2018 and in Principal Secretary, Ministry of Defence and National Service v. D.P Valambhia [1992] T.L.R 1985. I am at one with the Appellant that the right to a fair trial that include the right to be heard is a fundamental right enshrined under article 13(6)(a) of the Constitution of the United Republic of Tanzania, Cap.2. The Court of 5 Appeal of Tanzania in Abbas Sherally and Another vs. Abdul S.H.M. Fazalboy, Civil Application No.33 of 2002 observed that:- "The right of a party to be heard before adverse action is taken against such party has been stated and emphasized by courts in numerous decisions. That 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 naturaljustice." The question that arises is whether the right of the Appellant to be heard was violated by the trial Tribunal. I have gone through the proceedings of the trial Tribunal in Application No.42 of 2019 of 19th October, 2023 and found it reading as follows:- ” 19.10.2023 Mwenyekiti: Lung'wecha Washauri:-1. Mzee Mwasingo 2. Mama Kaiandamya Mieta Maombi: Yupo/ Wakiii Joseph Mbonika kwa niaba ya Wakiii Shadrack Wajibu Maombi 1- Wakiii Lyimo 2- Wakiii Lyimo 6 Karani: Meena Baraza. Kwakuwa kumbukumbu ziko wazi Hishaamuriwa tarehe 18/7/2023 kuwa mleta maombi ataendelea bila wakiH endapo hatakuja biia wakiH wake, hata hivyo kanuni ya 13(2) supra, kinaelekeza mdaawa kujisimamia mwenyewe endapo wakiH wake hatatokea mara mbiii mfuiuHzo na kwa kuwa hii ni mara ya pili mfuiuHzo, hivyo mleta maombi ataendelea binafsi. Mleta maombi Cha msingi mimi ninachokiomba dhidi yao ni kuongezewa muda Hi niiipe tu, sina dai jingine dhidi yao. WakiH Lymo. Kwasababu mleta maombi hajaieta maombi ya msingi dhidi ya wateja wangu hivyo na mie naomba kuondoa maombi yangu kinzani dhidi ya mleta maombi kisha naomba maombi yake yatupiiwe mbaii kwa gharama. 7 AMRI Kab/a ya kuunda viini na hoja ya mgogoro, Mahakama Hiwataka wadaawa kueleza kwa muhtasari chanzo cha mgogoro Hi kuunda hoja za mgogoro, katika hiio, mleta maombi aiiweka wazi kuwa hana madai dhidi ya wadaiwa baii anaomba kuongezewa muda wa kuiipa mkopo. Wakiii Lyimo anayewawakiiisha wajibu maombi aiiomba shauri kufutwa baada yay eye kuondoa maombi kinzani yaiiyowasiiishwa mezani. Baada ya kupitia hati hisia za wadaawa na mawasiiisho toka pande zote mbiii, hususani takwa la mleta maombi, imebainika hakuna chanzo maridhawa cha shauri kinachomwajibisha mdaiwa kujitetea au kuwajibishwa na Mahakama kwa makossa aiiyotenda. Kesi ya namna hii zimekuwa zikifunguiiwa kuwa ngao dhidi ya mabenki yanapotaka kudai pesa toka kwa wateja wao kwa kuendeieza udhaifu huu, Mabenki yatafiiisika na kuieta kizaazaa cha uchumi nchini. Kesi imekaa mezani kwangu tangu 2019 hadi ieo nab ado hakuna 'cause of action' Hiyowazi dhidi ya mdaiwa wa kwanza, hivyo biia kusita maombi yametupi/iwa mba/i kwa kukosa sababu maaiumu ya kisheria (proper Cause ofaction). Kila upande utabeba gharama zake. 8 Sgd Chairman 19/10/2023" From the above proceedings, the decision to dismiss the suit was made after the Appellant was given an opportunity to address the Tribunal and informed the trial chairman that she had nothing against the respondents as she only wanted for extension time to settle the loan. The own words of the Appellant moved the trial Tribunal to believe that she did not intend to prosecute her matter against the respondents. It is my firm view that the rule of natural justice was not violated as the Appellant was given the opportunity to be heard. In that regard, I find no merits in the 1st ground of appeal. In respect to the 2nd ground of appeal, it was submitted that the decision was based on a reason that the Applicant/Appellant had no cause of action against the respondents. The Appellant was of the view that, this was an informal way of raising preliminary objection out of blue by the counsel for the Respondent. She insisted that the trial Tribunal entertained the objection without informing the Appellant who had no knowledge of the same, and that the Applicant was taken by surprise. She added that argument on cause of action is something that requires an analysis of facts and evidence 9 adduced and determined in her view, the Application which was filed at the trial Tribunal had facts that constituted cause of action. She invited the Court to the decision in Mount Meru Flowers Tanzania Limited v. Box Board Tanzania Limited, Civil Appeal No.260 of 2018 on what constitute cause of action. As aforesaid while determining the 1st ground of appeal, the dismissal of Application No.42 of 2019 followed the submission of Appellant that she had no cause of action against the respondents. There was no preliminary objection raised by the counsel for the 1st Respondent or by the Tribunal suo motto. The Appellant herself procured the dismissal of the suit before the tribunal. I find no merits in the 2nd ground of appeal. With regard to the 3rd ground of appeal, the Appellant was of the view that, it was wrong for the trial Tribunal to dismiss the application in the absence of the advocate, doing so infringed the her right to legal representation. Reliance was put on the decision in Lucas Gisland v. Republic, Criminal Appeal No.89 of 2021. She contended that the trial chairman overlooked Regulation 13(2) &(3) of GN. No. 174 of 2023 which requires the a party whose advocate absconds without good cause for two consecutive dates to be ordered to proceed on own. In her view, on the io fateful date, the advocate of the appellant was attending a matter in the High Court. He ended up praying the court to allow the appeal. I have revisited the proceedings of the matter before the trial tribunal to find out if the Appellant was taken by surprise on the fateful date. In the course of perusal I realized that prior to the fateful date, the matter was called for hearing on 18th July 2023. On the said day, the advocate of the Appellant did not appear hence the adjournment. While adjourning the matter on 18th July 2023, the trial Tribunal made the following remarks:- "...Baraza: Kwa utaratibu wa kisheria, kama wakili hayupo bi/a sababu za msingi, mdaawa atajitetea mwenyewe, hivyo, mleta maombi kaamriwa kujitetea mwenyewe endapo wakiii hatatokea tena... "[Emphasis added] The above remarks of the trial Tribunal shows clearly that the Appellant was aware since 18th July 2023 that if her advocate would not appear in the subsequent dates for whatever reason, she would be required to proceed on her own. Therefore, when the matter was called for hearing on 19th October,2023 the Appellant was aware of the said directives of the Tribunal for her to proceed on her own in case of absence of her advocate. li From the foregoing, it is obvious that the Appellant was not taken by surprise to be ordered to proceed on her own on the 19th October,2023 because the directives was already made since 18th July 2023. The proceedings of the trial Tribunal do not show that the trial chairman relied on the provision of regulation 13(2) of GN.No.174 of 2003 rather, the previous orders of 18th July 2023. This is the reason the Appellant opted to confess the truth before the tribunal that the suit was lodged only for purposes of looking for extension of time to pay the loan. In that regard, I find no merit in the 3rd ground of appeal. In the final analysis, I dismiss the entire appeal with costs. It is so ordered. DATED at DAR ES SALAAM this M^ay of May 2024. JUDGE 12