20181017 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA ii.· ATMWANZA LAND APPEAL NO. 55 OF 2017 (From the decision of the District Land and Housing Tribunal of Mwanza District at Mwanza, in Land Case No. 51 of 2016) BOARD OF REGISTERED TRUSTEES OF ASSEMBLIES OF GOD •... I I •••• I I II I ••••••• I ••••••••• I •••••••• I •• APPELLANT VERSUS BOARD OF REGISTERED TRUSTEES OF EVANGELICAL ASSEMBLIES OF GOD OF TANZANIA .•• RESPONDENT JUDGMENT Date hearing concluded ... 24/07 /2018 Date judgment delivered .. 17 /10/2018 Gwae, J The appellant, Board of Registered Trustees of· Assemblies of God claimed among others, a declaration that he is lawful owner of Lumala church Premises located at No. 6 Block 'M'-Kiseke Mwanza City, a declaration that the respondent, Board of Trustees of Evangelistic Assemblies of God Tanzania unjustifiable evicted him (appellant) from the suit land on 14th day of December 2008 and therefore should vacate from the disputed land. ~ 1 ~ ~, On the other hand the respondent via his written statement of defence : - contended that the representative of the appellant handed over the suit ~lg premises to the respondent after it was discovered that the same was \ fraudulently registered in the name of applicant, unregistered entity instead of the respondent's name The dispute filed in the District Land and Housing Tribunal for Mwanza at Mwanza (trial tribunal) was heard ex-parte following alleged non- rd appearance on 23 November 2015 on the part of the respondent and eventually the verdict was accordingly entered on 5th June 2017 (fa·r beyond the intention of the legislature of establishing Land Courts) against the favour of the applicant on the basis that the appellant did not discharge his duty of proving the dispute in the required standard particularly documents to prove ownership. Aggrieved by the decision of the trial tribunal, hence this appeal containing four grounds of appeal as depicted in the Memorandum of Appeal are as follows 1. That, the trial tribunal misdirected itself in law and facts. The appellant had uninterrupted possession and development of unexhausted improvements unencumbered for over 20 y e a r s ~ 2 ,. :1. before the respondent forcefully evicted him and forcefully retained the premises as from 2008 to date 2. That, the trial tribunal misdirected itself in law. The original owner had a customary deemed right of occupancy had surrendered his title to the appellant. The exercise of offer --l and acceptance was successfully done. Compensation was ·i done to the owner by the appellant. It is in the tribunal records that these documents were lost. 3. That, the trial tribunal misdirected itself in law and fact. The appellant met the required standard of proof as there was I ample direct and circumstantial evidence_ d' ·l 4. That, the trial tribunal misdirected itself in law and fact, the tribunal consented to unlawful eviction of the appellant by the respondent who was not armed with any court order for eviction nor any legal document of ownership of the premises. The respondent did not enter ~ppearance nor did his advocate enter · appearance despite the fact that he was served through publication in Mwananthi Newspqper dated 30th September 2017. The appellant through his advocate, Mr. Bengesi sought leave for argue this appeal by way of written submission and the same was granted, filing~ 3 r ' t 1 schedule was ordered and complied with by the court and the appellant · respectively. \_ u However when going through the trial tribunal records I have observed that some of vital issues which may go to the root of the case were not ' addressed; firstly, that the respondent's preliminary objection raised on 24th June 2014 by Ms. Marina on status of the appellant was not clearly and thoroughly considered before trial and it was not considered at all during trial equally in the trial tribunal judgment and secondly on 23rd November 205 when the matter was called on for hearing, the present appellant's counsel sought leave of the trial tribunal to proceed with hearing ex-parte due to the respondent's absence the trial tribunal did not grant the leave nor was an order of ex-parte hearing was made by the trial tribunal (Chairperson Silas -esq). Thirdly, that when the matter was called on 4/3/2016, both the parties' representatives (Mr. Bengesi and Kange) entered appearance, Mr. Kange . informed the court of his confusion as to hearing date and no objection was given by the appellant's counsel, the case was adjourned to 4/5/2016 when the same advocates appeared; Mr. Bengesi insisted that he has come for ex-parte proof and Mr. Kange reacted to it by stating that he has ~ 4 : 1- statutory right to show sufficient cause as why he was absent when the matter was called on for trial as envisaged by order xix rule 7 of the CPC. -1 .' 1 \Ji. l \~'JJ In this regard the matter was then heard ex-parte due to the fact that the respondent was absent while his advocate was present. Having observed as noted above and bearing in mind of the requirement of capacity to sue or be sued (See a judicial decision in Lujuna Shubi Ballonzi, Senior v. Registered Trust~es of Chama Cha Mapinduzi (1996) TLR 203) and requirement in Cap 318 without undue regard that the respondent .was unreasonably denied· his right of defence as observed and taking into account that right to be heard is fundamental in such way 1 any proceeding and decision or order made without adhering to it is nothing but a nullity. In the case of MQeya -Rukwa Autoparts and Transport Ltd v. Jestina George Mwakyoma (2003) T.LR 251 in which the English case of Ridge v. Baldwin (1964) . ' AC 40 was considered, the Court of Appeal emphasized that; "In this country, justice is not merely a principle of common law. It has become a fundamental constitutional right. Article 13 (6) (a) includes the right to be heard among the attributes of equality before the law ... " 5 \\ I I I -~ In our present case, the respondent's counsel was not afforded time to ·· state reasons that prevented him or the respondent from entering on that \_\J particular date (4/5//2016) when advocate Bengesi told the court that the matter was for ex-parte proof and Mr. Kange responded that he was aware I t-, but he should be allowed to state reasons for absence. I say so because he was not given time to reply to the objection. For clarity I wish to quote part of the proceedings 4/5/2016 Coram .... Silas Adv. Bengesi: Today we have come to prove our suit ex-pate Mr. Kange: 1 am aware of the order but the CPC allows me to appear and show sufficient cause as to why I was absent. .... Mr. Bengesi: I object the prayer because the respondent is not present as it is requirement bf 12 of GN 174 of 2003 of the Land Disputes ... the respondent is nowhere to be seen in order to read the application over him to either reject or admit, the respondent's advocate could be allowed to produce sufficient cause of his no-appearance if the respondent is around or . present. .................... . Ruling The respondent is not present in order a plaint to be read over him as per ....... His advocate cciuld only be allowed to g i v e ~ 6 \\ J reasons of his non-appearance on 23/11/2015 ........Thus, the applicant is ·allowed to ·submit an ex-parte proof, it is so ordered sgd 4/5/2016 Considering the fact the respondent's counsel was not given to time to make a reply for himself and his client of his non-appearance on 23 rd Nov. \ 2015 and absence of his client on 4th May 2016 that certainly amounts to a 1 .j j denial of a right to be heard leave alone the fact that there was nota order of ex-parte proof as a\leged by the appellant's counsel that was· made on 23 rd November 2015 as earlier explained. In the event, the proceedings and decision of the trial tribunal are found to be tainted with fatal irregularities, the same are hereby quashed and set aside, the appellant is at liberty to proceed with trial of the matter if he is certain of his locus standi or institute afresh suit with proper name against a proper legal entity. Each party to be its costs It is so ordered ~ Ju .. _ . 17/10/2018 7 l.