boraafya fumbwe vs tatu kassimu and another 2011 tzhclandd 7 15 december 2011

IN THE HIGH COURT OF TANZANIA [LAND DIVISION] AT TANGA LAND CA5E APPEAL NO. 20 OF 2010 [F ro m th e d e cisio n o f th e D is tric t L a n d a n d H o u sin g T rib u n a l o f TANGA D is tric t a t TANGA In L a n d Case N o.1 0 4 o f 2 0 0 9 ] BORAAFYA FUMBWE...... ................................................ APPELLANT VERSUS TATU KASSIMU & ANOTHER....................................... RESPONDENT Date of last order:28/9/2011 Date of Jucigm ent:15/12/2011 JUDGMENT Teemba, 3; The appellant Boraafya Fumbwe was a respondent in Application No.104 of 2008 of Tanga District Land and Housing Tribunal. The respondents herein complained that the appellant trespassed onto their farm. The Application was heard and decided ex-parte on the ground that the appellant refused service. The appellant applied for the ex-parte decision to be set aside but the application was dismissed. The Applicant, through the services of Mr. Akaro, learned counsel, has appealed against the dismissal order. The memorandum of appeal has only one ground of appeal. The appellant's grievance is that the District Land and Housi-nq Tribunal erred in law and fact by holding that there was sufficient eviaencev-of; service on the appellant. The appellant's advocate submitted that the Tribunal relied on the 4 affidavit of process server that " Mhusika amekataa kupokea wito kwa sababu tusizozifahamu." The counsel argued that the statement is vague as it implies that more than one person attempted to effect service and/or there were other persons present when the service was effected but refused to be disclosed. The learned counsel added that Order V Rule 16 of the Civil Procedure Code, Cap.33 R.E. 2002 requires the persons present to be disclosed and if necessary to require such persons to swear supporting affidavits. The counsel also complained, though not in the memorandum of appeal, that the evidence adduced by the respondents is contradictory in respect of the size of the land in dispute. He complained that the first respondent said it is 2 acres and again referring to 2 feet by 2 feet. In her reply Mrs. Kabwanga, learned counsel for the respondents, submitted that the appellant's submission is contradictory in the sense that he denied to be served but on the other hand stating that the service was not properly effected. The advocate also submitted that by referring to the evidence allegedly to be contradictory, the appellant is seeking sympathy of this court. The counsel made reference to definition ou the word 'Mhusika' which was challenged by the appellant. The appellant had also referred to the case .of Esther David Mmari VS Emmanuel Malcadi [1967] HCD, NO.178 as a binding authority as far as proper service is concerned. The respondents' counsel distinguished the case stating that it is irrelevant in the instant appeal. 5 In his rejoinder, Mr. Akaro maintained that the appellant's submission in support of this appeal is not contradictory and he insists that he was not served. ' * The learned counsel added that the definition? of the word 'Mhusika' as cited by the respondents' counsel do not define the term without strong ambiguity that it was the appellant himself who was actually served. i have seen the affidavit of the process-server-which is the subject of controversy in this appeal. I agree entirely with the Tribunal that the form is a creature of law and it was published in GN. No. 174 of 27/6/2003. The dispute is whether the affidavit contains full details to exclude any ambiguities. Regulation 6 of the Land Disputes Courts [The District Land and Housing Tribunal] Regulations, 2003 provides on the service of summons. This Regulation directs that, in effecting services of summons, a copy of the application, or chamber application, must be attached to every summons to be served upon a party to the application. In addition, Sub Regulation 3 K .requires the summons to be served on the party himself, spouse, any member of the household above the age of 18 years, his advocate or any other persons authorized by the party to represent him in that particular to-represefit- him-in-tbat-part4c-ul-ar application. The affidavit sworn by the process-server in this case, does not state the actual person, among those listed in this Regulation, who was served by the process server. The word 'Muhusika' was interpreted by the lower Tribunal to be the addressee. According to Regulation 6(3) (supra) it may not be necessary that the addressee is the actual person served. The 6 oossibilities of having other person(s) to receive the summons was expected and that is the purpose of listing them in the law/Regulation. In a situation as it was in the instant appeal, it is my considered view that, it was necessary for the process server to name the actual person served. Regulation'6(4) of the same Regulations states: "(4) After the service\ a person who effected the service shaii- 3 ) .......................................... b) swear an affidavit in the prescribed form indicating the m a n n e r in which the service has been effected." . In. the present appeal it is the appellant's case that the words " Mhusika ■ amekataa kupokea wito kwa sababu tusizozifahamU' reflect that the process server was not alone when the alleged service was effected. Mr. Akaro submitted that the affidavit of the process-server should have reflected the name(s) of people present during the service and if possible for them to swear separate affidavits to confirm service. This argument has merit. I say so because the wording of Regulation 6(4)(b) requires the process server to indicate the manner in which he effected the service. There is no doubt the form No.2 which is the affidavit of the process-server has dotted lines under paragraph 2 for the process server to fill in the manner and/or circumstances under which the service was effected. With due respect to the learned chairperson of the District Land and Housing Tribunal, I differ with his views that the form does not have room 7 for the details complained of by the appellant's counsel. Where the summons is accepted/received, there may be no serious need to include all the details but v when the party/agent refused to accept service, then it is important to have these details to enable the court decide whether the service was really effected or not. I am also aware that section 51(.l);of the Land Disputes Courts Act, 2002 allows the District Land and Housing Tribunals together with this court to apply the Civil Procedure Code. This being the case, then Order V. Rule 16 of the Civil Procedure Code, [Cap.33 R.E. 2002] comes to play. The proviso to this Rule 16 is relevant. It reads:- "Provided that where the defendant, his agent or such other person refuses to sign the acknowledgement the serving officer shall leave copy thereof with him and return the original to the court together -with an affidavit stating that the person upon whom he served the summons refused to sign the acknowledgment, that he left a copy of the summons with such person and the name and address of the person, [if any] by whom the person on when the n summons was served was identified. Without repeating the mandatory requirements set out in the proviso i quote above, it suffices to point out that the proviso sets out the mandatory information which the process server must state in the affidavit to prove effective service. I am settled that neither the provisions of Order V rule 16 of the Civil Procedure Code [supra] nor Regulation 6(4)(b) of the Land Disputes Courts/[The 8 District Land and Housing Tribunal] Regulations, 2003 were properly adhered to. For this reason, it can not be stated for sure that there was proper service. For the foregoing, I allow the appeal and quash the proceedings of the trial Tribunal .'However, the file is remitted back to the District Land and Housing Tribunal for retrial before the Tribunal constituted with different people other than-those involved in the trial. Each party to bear own-costs. rX , . 15/12/2011 ! p « r t : r ^ [ ^ i^ ^ ie n i is / delivered today in the presence of parties who are :e6 by'mfete'ar.ft£d counsel - Mr. Akaro and Mrs Kabwanga respectively. R.A. TEEMBA, J. 15/12/2011 9