bahati josephat mchallo suing as administrator of the estates of the late josephat paul massawe vs equity bank tanzania ltd 2 others 2024 tzhclandd 60 29 february 2024

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 347 OF 2023 (Originating from Land Application No. 156 of 2023, Kinondoni District Land and Housing Tribunal) BAHATIJOSEPHAT MCHALLO (Suing as Administrator of the Estate of the Late JOSEPHAT PAUL MASSAWE)........................................... APPELLANT VERSUS EQUITY BANK TANZANIA LTD.......................... ........................ 1st RESPONDENT PROSPER ELVAN MZEE........... ................................... .............. 2nd RESPONDENT ACCURATE RECOVERY AND AUCTIONS LTD..............................3rd RESPONDENT JUDGMENT 15/12/2023 to 29/02/2024 E.B. LUVANDA, J The Appellant above named is unhappy with an order of the Tribunal, dismissing his application for reasons of locus standi, res judicata and abuse of tribunal process. In the memorandum of appeal, the Appellant raised five grounds of appeal, but for purpose of this judgment and in view of what had transpired before the Tribunal as per its records, I will only canvass on the third ground of appeal, thus: That the District Land and Housing Tribunal for Kinondoni (the Tribunal) erred in law and facts to argue itself the preliminary objections i purported to be raised and filed by the First Respondent without serving it to the Appellant and proceeded to dismiss the matter on the first mention date as such condemn (sic, condemned) the Appellant unheard. The Appellant submitted that this appeal emanates from the dismissal order made by the Tribunal on the first mention date, in which it purported that the First Respondent or the Honourable Chairman had raised preliminary objection,; which was not served to the Appellant. He submitted that the dismissal order can only be made when a case is called for hearing because parties have an opportunity to present evidence or testimony to the court (sci, tribunal). He submitted that on the mention date the court (sic, tribunal) is expected to ascertain the state of the pleadings or the stage reached in the trial and then proceed to make appropriate orders, arguing hearing is an act of listening to evidence. He submitted that on mention date the chairman or court had no business. He cited the case of Mr. Lembrice Israel Kivuyo vs. M/s DHL World Wide Express & Another, Civil Appeal No. 83/2008, CAT Arusha. He submitted that the Chairman was wrong to dismiss a matter on the first mention date of the suit, worse without affording the Appellant with an opportunity to be heard. He cited the case of M/s Consolidated Holding Corporation & Another vs. Consolidated Investment (T) Ltd, Civil Appeal No. 65/2011, CAT Arusha. 2 In reply, Ms. Dorothea Rutta, learned Counsel for Respondent submitted that the proceedings of the court (sic, tribunal) dated 13/07/2023 the Applicant was well represented in court (sic, tribunal) by Advocate Sibinus Ndugu who was dully served with the points of preliminary objection and was given time to present his case. She submitted that parties were invited to argue their case and a ruling thereto was issued. The learned Counsel contended that the argument that the advocate know it was a mention date and not hearing, does not hold water, arguing he ought to have prepared well for his case and equally he was dully accorded right to be heard and defended his client. On rejoinder, the Appellant submitted that the Appellant was condemned unheard, the matter was dismissed on the first mention date without serving the Appellant with a counter affidavit, written statement of defence if any filed, arguing the Tribunal was wrong to dismiss the matter. The records of the Tribunal reflect that when the matter was called for the first appearance of parties on 03/08/2023, the learned Counsel for Appellant one Sabinus kick started the ball1 and addressed the Tribunal. Thereafter Mr. Temistocrosi Rwegasira learned Counsel for Respondent made his argument, then the Tribunal proceeded to make orders. For brevity, I reproduce the entire impugned proceeding, ' • ' "Wakiii Sabinus: 3 Nimeajiriwa majuzi ninaomba hairisho (sic, airisho) hili (sic, Hi) niweze kumshauri mteja wangu juu ya hii kesi. Wakiii Rwegasira Maombi haya ni RES JUDICATA hivyo Mahakama (sic, Baraza) haiina mamiaka ya kuisikiiiza zaidi ya kuiondoa (sic, kuyaondoa) mail ambayo iiikuwa kwenye maombi Namba 490/2018 na kwenye ombi dogo 287/2022 ambapo zote hizo ziiiisha kwa maridhiano au kwa suluhu (deed of settlement) baadaye kuisha mbele ya Mhe. Mbiiinyi maombi 287/2022 ambapo Baraza iiiisema wazi kesi He ni RES JUDICA TA. Tunasema kwenye shauri hili mdai hana miguu ya kusimama mbele ya Baraza kwasababu mali anayodai kusema anaisimamia si sehemu ya mali za marehemu. Mali ambayo ina mgogoro ni Namba 110 Kitalu 6 Hananasifu Kinondoni. Tunaomba maombi haya yafukuzwe kwa gharama. AMRI Mleta maombi anadai yeye ni msimamizi wa mirathi ya JOSEPH PAUL MASSA WE na nyumba yenye mgogoro Hiyopo kwenye Kiwanja 110 Kitaiu 6 Hananasifu Kinondoni kinasomeka jina la Mdaiwa wa PHI PROSPER EL VAN MZEE ambaye ndiye aliyekopa kwa mdaiwa wa kwanza. Kwa ukweli huu kwamba mali anayodai mddai kuwa mali ya marehemu wakati si kweli basi Baraza iinaona wazi hana miguu ya kusimama kwenye shauri hili. Kingine shauri iimeshafukuzwa mara mb'Hi kwa sababu ni RES JUDICATA lakini kwa sababu mdai na mdaiwa wa piii wanakitumia chombo hiki vibaya (Baraza) wamekuwa wakirudi na maombi mengi kwa kuzingatia ukweii niiiouona hapo na 4 Ushahidi huo basi ninaona mdai hana miguu ya kusimama. Hivyo basi maombi haya ninayafuta kwa gharama. Ndivyo Hivyoamriwa. Imesainiwa J. IV, Sillas Mwenyekiti 13/07/2023" In view of the above, it is crystal clear that the Appellant was condemned unheard, on two fold: One, the Counsel for Appellant had prefaced to had been recently engaged and asked for an adjournment for consultation with his client; Two, after the learned Counsel for Respondent had raised and argued the preliminary objection, the Counsel for Appellant was denied a chance to respond to the submission and argument. Instead, the learned Chairman stole the show and rushed to make an order dismissing the suit. The record of Maombi Namba 156/2023 subject of this appeal, does not reflect if at all the Counsel for Respondent had filed a formal notice for a preliminary objection subject for the argument above quoted. There is nothing to suggest that the same was served to the learned Counsel for Appellant. In other words, the rule against surprise is vivid here. As I have said, the learned Counsel for Appellant was the first to take the floor to address the Tribunal in the manner which suggest was unprepared for the argument. Hitherto no records which suggest he was at any time invited to respond albeit by surprise. Nowhere the learned Chairman recorded or indicated 5 that the learned Counsel for Appellant refused to respond, reply or was incorporative. In fact the learned Chairman was misdirect on this aspect. Indeed, the learned Chairman in his order cum ruling introduced issues of evidence while no party had adduced any piece of evidence apart from the submission made by the learned Counsel for Respondent. To my respective view, that was a glaring fatal mistake or error. '• :- Arguably, the manner the ruling was crafted suggest the Appellant and Second Respondent surpassed on the abuse of tribunal process. But still, it is the primary duty of the judicial officer (the learned Chairman) to ensure compliance to the due process of fair and equitable hearing before penning down to its verdict. This is because no matter correctness of the verdict, but if there is a blatant flawless and non compliance on the procedures of rules of due process, invariably the verdict will end up being overturned. In the case of M/s consolidated Holding (supra), at page 6 the apex Court when it was deliberating on the right to be heard, had this to say; "The fundamental rights ofparties to be heard is enshrined in the Constitution ofthe United Republic of Tanzania in Article 13(6)(a). "There are also numerous decisions of this Court emphasizing compliance with the rules of natural justice. The audi altertam partem rule ofnaturaljustice requires the court to adjudicate over 6 a matter by according the parties a full hearing before deciding the matter in dispute Therefore, the order dated 13/07/2023 in Maombi Na. 156/2023 is quashed. The Tribunal is directed to accord the Appellant a right to reply to the argument and submission made by Mr. Themistocles Rwegasira learned Counsel, who will be entitled to make a rejoinder thereto if any, then the Tribunal should compose its verdict based on the arguments of both litigants. The appeal is allowed. However, I make no order for costs. E. B. LUVANDA JUDGE 29/02/2024 7