benedict khalid chodata vs road safety committee 2014 tzhc 2347 7 november 2014

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT IRINGA LAND CASE APPEAL NO. 6 OF 2012 (From the Decision of the District Land and Housing Tribunal of Iringa District at Iringa in Land Case No. 53 of 2011) BENEDICT KHALID C H O D ATA................................. APPELLANT VERSUS ROAD SAFETY CO M M ITTE E............................... RESPONDENT 27/10/2014 & 07/11/2014 JUDGEMENT P. F. KIHWELO, J . This is an appeal from the decision of the District Land and Housing Tribunal dated the 20/06/2012 which granted the application and made several orders against the appellant. In his Memorandum of Appeal filed to this court there is six grounds of appeal which reads as hereunder; l 1. That, the honourable Chairman of the Tribunal erred in law and fact by hearing the application Ex-parte after the appellant had asked him to disqualify himself following his acts of stepping into the shoes of the respondent and discussing the case jointly and together for the sole purpose of jeopardizing the appellant. 2. That, the honourable chairman of the Tribunal grossly erred in law and' fact by hearing the application Ex-parte Without disposing of the preliminary objection raised by appellant in the course of pleadings. 3. That, the honourable chairman of the tribunal grossly erred in law and fact by being biased in the hearing the application hence giving an unfair judgement against the appellant. 4. That, the honourable chairman erred in law and fact by holding that the appellant breached the lease agreement while no condition of the said lease had been given and signed by the parties. 5. That, the honourable chairman erred in law by granting the application and making the orders appearing in the judgement in absence of concrete proof thereof. 6. That, the appellant has preferred this appeal as an application for setting aside the judgement can not be entertained by the honourable chairman who forced hearing the application Ex- parte for accomplishing his desires in favour of the respondent. Ifwmr' On October, 2014 when the matter came before this court, Mr, hnani Nitume, learned counsel for the respondent informed the mint (hat they had earlier on raised a preliminary objection in rcspect of the appeal but after careful research the respondent had decided to abandon the preliminary objection and proceed with the appeal. Arguably, the appellant w'ho was not represented stated that the Tribunal heard the matter ex-parte after the honourable chairman refused to disqualify himself from the conduct of the application upon request made by the appellant. The appellant contended further that the circumstances which lead him to request the chairman to withdraw' from the conduct of the matter is the prevailing circumstances which includes rejecting his request for adjournment on account that he was praying delaying tactics. Some which is not true as the appellant never missed to appear before the Tribunal. The appellant is of the considered opinion that hearing the matter ex-parte and deciding was not fair to him. The appellant contended that the chairman did not dispose the preliminary objection wrhich he raised prior to conducting the ex-parte hearing and lastly the appellant forcefully argued that the chairman did not consider the fact that there was no lawful lease agreement with the respondent hence in essence the judgement which was delivered in favour of the respondent was wrongly arrived at. In opposing the appeal the counsel for the respondent Mr. Iman Nitume observed that the appellant requested the chairman of the Tribunal to disqualify himself from the conduct of the matter after the chairman ruled out that the appellant was raising a preliminary objection on matters which were earlier on considered by the Tribunal following an objection which was raised by the appellant. The counsel for the respondent briefly gave the account of the chronology of events that lead to the request by the appellant and the subsequent decision by the chairman. Mr. Iman contended that the reasons advanced by the appellant requesting the honourable chairman to disqualify were flimsy with the intend to delay the court proceedings. According to Mr. Iman it is the appellant who rejected to proceed with the proceedings on the date wrhen the matter was fixed for hearing. Something which lead the Tribunal to order that the matter should proceed ex-parte. In further defending the decision of the chairman the counsel for the respondent stressed that the reasons advanced by the appellant can not in the eyes of the law make any judge, magistrate or chairman of the tribunal disqualify himself as the law is very clear on circumstances which may warrant recusal. He cited the case of Joseph Chuwa & Hashim Motto V. Republic Criminal Appeal No. 75 of 2006 Court of Appeal of Tanzania at Arusha (unreported). Mr. Iman argued that there was no basis for the appellant’s argument that the chairman stepped into the shoes of the respondent but rather mere speculation and baseless claims. He insisted that the preliminary objections were all disposed prior to the beginning of the hearing. The counsel for the respondent in responding to the argument raised by the appellant that there was no lawful lease agreement Mr. Iman contended that the appellant admittedly in his reply at paragraph 2 (ii) conceded to the existence of oral contract. The counsel for the respondent went on to argue that PW2 proved that there was oral contract while Exhibit “P3” receipts for payment were proof of the existence of the contract as such he reiterated that the issue of lease agreement and its existence was proved by the District Land and Housing Tribunal. In his brief rejoinder the appellant countered that the advance payment made did not do what was required and finally he insisted that there was no written agreement. After hearing of the appeal the matter was adjourned for judgement which was to be delivered on 6th November, 2014. However, while composing the judgement it came to the attention of the court that there were glaring defects which the court should satisfy itself on its propriety. Hence parties were invited to address the court on the defect before making the decision. This is the dictates of prudence and justice. The court has already settled this position in the case of The Permanent Secretary Ministry of Home Affairs & The Hon. Attorney General, Civil Apeal No. 20 of 2009, at Arusha (unreported) where the Court of Appeal of Tanzania categorically reiterated that:- “In this sense, although it is a bit unusual and unfortunate that the issue was raised at a rather late stage o f the case, strictly speaking the judge did not err in raising it at the end o f the judgement. However, as fa r as this case is concerned, since the point appears to have come up as an after thought we think that prudence and the interests o f justice demanded that the appellant and the respondents be called upon to address the court on the issue before making a finding on it. If the Judge had done so he would have had the benefit, advantage and opportunity o f hearing the parties' views, or rather getting their in puts on the point, before making a definitive and balanced finding on the said point. Indeed, we wish to go further and say that if he had done so justice would have been seen more to have been done. ” When the parties appeared before me on the 6th November, 2014 Irequested them to address the court on the notable defect. The appellant on his part did not have much to say other than admittedly saying as a layman he needs advice on the matter as the same was legal technical. The counsel for the respondent explained quite frankly in my considered opinion that the appeal was without a decree appealed against which was an essential and mandatory requirement of the law and he went further to cite Order XXXIX Rule 1(1) Cap. 33 Revised Edition 2002. He cited also the case of Livingstone Sillay V. Collinfred Temu [1998] LRT where the Court of Appeal of Tanzania reiterated the same position. The counsel for the respondent finally prayed that the appeal should be dismissed with costs. From the court records and facts available there in no Decree of the District Land and Housing Tribunal hence the appeal is incompetent for the reason that it is accompanied by a copy of the judgement without a decree appealed against. This fact does not seem to be disputed by the appellant. In the case of H. J. Stanley & Sons Ltd V. Ally Ramadhan Kunyamele [1988] TLR 250 cited in Abdallah S. Mkumba V. Mohamed [2001] TLR 327 the court had the following to say:- It is mandatory that a Memorandum o f Appeal be accompanied by a copy o f the decree under Order XXXIX Rule 1(1), where a Memorandum is not accompanied by a copy o f the decree, there is no legal presentation at all and so the appeal is incomplete. Having found out that the appeal is incompetent before this court I remain with two issues one whether dismissal of the appeal is proper in the circumstances as prayed by Mr. Iman and two whether the respondent is entitled to costs. c As regards to the proper remedy for an incompetent appeal before the honourable court the law is very settled and this court has said time and again that the proper remedy is to strike out and not dismissal as the counsel for the respondent has prayed. This has been reiterated in various occasions one of which is the case of Said Salim Bakhressa V. Ally A. Ngume (1997) TLR 312. Since the defect was raised suo motto by the court the respondent is not entitled to costs as prayed. With the aforesaid observations. The appeal is found to be incompetent for not being accompanied by a decree as required by Order XXXIX Rule 1(1) of the Civil Procedure Code Act Cap. 33 Revised Edition 2002. As such the appeal is struck out. Each party to bear its own costs. It is so ordered JUDGE 07/11/2014 Judgement delivered on 07th November, 2014 in the presence Mr. Mhagama on behalf of Mr. Iman Nitume for Respondent and Appellant appeared in person. T'r ‘" > s P . F . KIHWELO f ' > \%\\JUDGE ................... W 711/2014