JUDGMENT BEATHA MWAMPAMBA

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO. 21534 OF 2024 CASE REFERENCE NO. 202409021000021534 (Originating from Application No. 111 of 2023 in the District Land and Housing Tribunal for Mbeya at Mbeya) BEATHA PROTAS MWAMPAMBA (administratix of the Late PROTAS MWAMPAMBA) ..................................................... APPELLANT VERSUS RODA PAULO ......................................................................1 ST RESPONDENT SUNDAY PHILIMON .......................................................... 2ND RESPONDENT JUDGMENT 13th February & 4th April 2025 NONGWA, J. The appellant is aggrieved by the order of the DLHT dated which dismissed Application No. 111 of 2023 for want of prosecution after she refused with continuation of its hearing. Facts of the case is that the appellant sued the respondents over the house located at Iyunga Maendeleo street within the city and region of Mbeya. She alleges that the house belonged to Prostas Mwampamba who died in 2004. Further that the first respondent has sold it to the second respondent. The respondents though served through substituted 1 service did not file defence or enter appearance. Ex-perte hearing was ordered and two witnesses testified and further hearing ordered to be on 9/7/2024. On the scheduled date the appellant prayed the chairman to recuse from the conduct of the case but it was refused, the matter was then scheduled for hearing on 16/7/2024. On that date the appellant what not ready to continue with hearing before the chairman, this necessitated the charman to make an order dismissing the application. The appellant is aggrieved by such order and has filed his memorandum of appeal on three grounds; one, that, the trial tribunal erred both in law and fact when dismissed my application for want of prosecution for animosity reason in my presence. Two, that, trial tribunal failed in law and justice when altered and recorded the words which was not spoken neither by me nor any one during the proceeding. And three, that, the trial tribunal was wrong when dismissed the application for not comprehending that the dismissal order was not a proper order for the applicant who prayed for the trial chairman to be disqualified. When the appeal came for hearing the appellant appeared in person, without legal representation. The respondents did not appear 2 though properly served, hence hearing continued ex-parte. The appellant prayed and was granted order to file written submission. In her submission, the appellant has narrated a background of the matter which I find not necessary to reproduce here. On first grounds of appeal has submitted that the chairman did not record reason she advanced for the chairman to disqualify from conduct of the matter nor he did give reason for refusal to recuse. In the second ground it has been submitted that the chairman recorded matter not spoken by the appellant, that is naomba hiyo irudi kwa mdaiwa wa kwanza and kama baraza la kata wadaiwa hawakuwepo. She stated the word were added to show his morose order against her. In ground three it has been submitted that the dismissal order was not the proper order because he was present in the court. To her that was denial of right to be heard. In support cited the Ugandan case of Attorney General of Uganda vs Media Legal Defence Initiative (MDLI) & 19 Others, Consolidated Application No. 4 & 6 of 2018. She contended right to be heard is fundamental right and referred to Article 10 of the Universal Declaraion of Human Rights, Article 6(1) of the European Convention on Human Rights and Fundamental Freedom, 3 section 2(2) of the Canadian Bill of Rights and Article 7(1)(c) of the African Charter on Human and People’s Right. He prays indulgences of this court that he be heard before another chairman. Having considered the submission of the applicant and record of appeal. It has to be noted the appeal is against the dismissal order and not the refusal of the chairman to recuse from the matter. Thus, the issue for my determination is whether the appeal is merited. Starting with right to be heard in ground one, it has been submitted that it was not proper to dismiss the matter in his presence and that amounted to denial of right to be heard. The appellant referred the court to various foreign instruments. I have to put it clear that it was not necessary to resort to foreign instruments on the issue of right to be heard while the same is well covered by our own laws and Constitution. This tendency is discouraged in situation where our legislations are self- sufficient. See National Microfinance Bank vs Leila Mringo & Others, Civil Appeal No. 30 of 2018 [2020] TZCA 240 (20 May 2020; TanzLII) and National Microfinance Bank vs Victor Modest Banda, Civil Appeal No. 29 of 2018 [2020] TZCA 35 (26 February 2020; TanzLII). 4 The right to be heard is provided under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977 as amended from time to time, it reads; ‘When the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned .’ The settled law is that any decision reached in abrogation of principles of natural justice is a nullity even when the same decision would be reached had the party been heard. See Abbas Sherally and another vs Abdul Sultan Haji Mohamed Fazalboy, Civil Application No. 133 of 2002 [2005] TZCA 105 (17 November 2005; TanzLII). From the above the question is, was the appellant denied right to be heard. Perusing the record of appeal reveal that the appellant was given opportunity to testify and call witness and indeed two witnesses the appellant (PW1) and one John Afwilile Kobona (PW2). The matter was then scheduled for continuation of hearing. It is at that moment the appellant requested the chairman to recuse from the matter who refused. On the schedule date the appellant refused to continue with hearing. 5 I should emphasize that court/tribunal orders should be respected and complied with, the chairman having refused to disqualify from the conduct of the matter, the appellant had only two options either to continue with hearing the case as ordered or to refer the matter to the high court. As the appellant did not exercise one of the options, it cannot be said the appellant was denied right to be heard. It was self- exclusion from the conduct of the case which it cannot be said amounted to denial of the right to be heard. The appellant has complained that some of the statements were not recorded by the chairman. Without much ado, the appellant is trying to impeach the court record, it is a settled law that, a court record is a serious document that it cannot be impeached lightly. In the decision of the Court of Halfani Sudi vs Abieza Chichili [1998] TLR 527 the court stated; ‘A court record is a serious document. It should not be lightly impeached. There is always the presumption that a court record accurately represents what happened.’ At hand, there is no any scintilla of evidence to prove that the chairman did not record all what transpired or what was recorded was 6 not testified by the appellant, hence the accuracy and correctness of the court record has bot been rebutted. Ground two fails. Last is ground three whether dismissal was the proper order, hearing of application before the DLHT is governed by the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, G.N. No. 173 of 2003, however upon reading the entire document together with the Land Disputes Courts Act, Cap 216. I have not come across the provision regulating circumstances when a party refuses to continue with hearing of his case. With such lacunae in the land law, vide section 51(2) of the Land Disputes Courts Act, I have to resort to the Civil Procedure Code, Cap 33. Relevant to the present case is order XVII rule 3, it provides; ‘Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default, proceed to decide the suit forthwith. [Emphasize added]. In this appeal the appellant caused two witness to testify, hence steps for prosecution of the case had been taken. On those circumstances, the appellant having defaulted to proceed with her case 7 as ordered, the tribunal was obliged to close the case and proceed to decide based on evidence adduced, that is the import of the phrase “proceed to decide the suit forthwith”. Some akin scenario was discussed in the case of Mansoor Industries Limited vs United Bank of Africa (Tanzania) Limited, Civil Appeal No. 314 of 2021 [2024] TZCA 1038 (5 November 2024) and the court stated; ‘The record informs that at the time of dismissal, the appellant had led PW1 to testify in support of its case. This meant that steps towards prosecution had been taken and that the worst that the appellant would suffer for its failure to lead in evidence on 10th June, 2021, was to have its case closed to allow the respondent to open up its case and let the court make a decision based on the testimony adduced in court.’ With the above law, I agree with the appellant that it was not proper to dismiss the application for want of prosecution while it was partly heard. The charman was supposed to close the appellant’s case and proceed to compose judgment based on evidence already in record. In the premises, I quash and set aside the order dismissing the application for want of prosecution. I remit the record of Application No. 111 of 2023 to the DHLT for Mbeya for composition of judgment based 8 on evidence already adduced before another Chairman with the same set of assessors. No order to costs as the appeal continued ex-parte. V.M. NONGWA JUDGE 9