JUDGMENT CATHERINE VS HURUMA LAND APPEAL NO 2480 OF 2024

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB-REGISTRY AT MBEYA LAND APPEAL NO. 7480 OF 2024 (Arising from the Ruling of Miscellaneous Land Application No. 68B of 2023 at the District Land and Housing Tribunal of Mbeya, Originated from the Decision and Judgment of Land Case No. 68 of 2023 at District Land and Housing Tribunal of Mbeya) CATHERINE ELISHA……………………………….APPELLANT VERSUS HURUMA ANDULILE MGIMBA………………………RESPONDENT JUDGMENT Date last Order: 30th May, 2024 Date of Judgment: 1st August, 2024 KAWISHE, J.: The appellant, Ms. Catherine Elisha being aggrieved by the decision of the District Land and Housing Tribunal of Mbeya in Miscellaneous Land Application No. 68B of 2023 appealed to this court challenging the decision of the District Land and Housing Tribunal of Mbeya. She advanced the following four reasons reproduced hereunder regardless of errors therein: 1 1. That the trial tribunal chairman erred in law and fact by failure to notify the appellant as requirement of law, the day of judgment of land case no. 68/2022 will be delivered. 2. That, the trial tribunal chairman man erred in law and fact by analysis effectively the evidence adduced by the appellant related to her health problems. 3. That, the trial tribunal chairman erred in both law and fact by failure to records effectively the evidence adduced by the appellant that led to additions and reductions of some words in Ruling. 4. That, the trial tribunal chairman erred in both law and fact by breach the principle of natural justice of right to be heard to appellant. The appeal was objected by Ms. Huruma Andulile Mgimba. The parties appeared in person unrepresented. They argued the appeal orally. Being laypersons, they did not manage to assist the court with authorities or arguments to the effect of making an informed conclusion therein. When the appeal was called for hearing Ms. Catherine, the appellant, submitted on the 1st ground singly, combined the 2nd and 3rd grounds, while the 4th ground was argued singly. Starting with the 1st ground of appeal, the appellant submitted that, the trial tribunal of Mbeya District did not inform her on the delivery of ex parte judgment. That the date of the delivery of the judgment should have been communicated to the parties. She cited Order 20 rule 1 of the Civil 2 Procedure Code, Cap 33 while insisting all parties are to be informed on the date of ex parte judgment. She added that she was not informed as she stated in her application for extension of time in application to set aside the ex parte judgment under paragraph 6 of her affidavit. She also cited the case Joff vs. Bank of Africa Ltd No. 562 of 2021 which stated about the same issue. On the 2nd and 3rd grounds of the appeal, the appellant argued that, the tribunal did not consider the evidence on her sickness. That she stated that, she had health problems and the situation of her mother. The appellant further submitted that she tendered treatment evidence. She further submitted that the tribunal added extraneous matters in its decision. She denied to have received the summons on the date of ex parte judgment. She averred that she was not informed on the date of the exparte judgment. She insisted that she have stated that in her affidavit in the application for extension of time to file application to set aside the ex parte judgment under paragraph 6. Turing on the 4th ground, the appellant lamented that, the tribunal denied her the right to be heard by deciding the case ex parte. She prayed 3 to this court to quash the judgment of the trial tribunal and the case be tried afresh. Replying to the grounds of appeal respondent, Ms. Huruma, started by putting her position very clear that she objects the application. The she stated that, the appellant refused to accept the summons issued to her by Chairman of the Local Government. She added that the local government chairman (Mwenyekiti wa Serikali za Mitaa) stated that, since the appellant refused to accept the summons, the tribunal should serve the appellant by itself. The respondent added that, she took the summons to the appellant’s business place. That the appellant received the summons. That the appellant attended in the tribunal. That she objects the application to extend time. That the appellant has not considered the time used in the case, that the respondent will suffer loss. Replying to the 2nd and 3rd grounds of appeal, the respondent argued that, the appellant did not adduce any evidence in her affidavit to show the sickness she suffered, from when and when she recovered. That the appellant’s sick sheet from hospital showed that, she went to the Magereza Hospital and she was suffering from stomachache and headache. The 4 respondent further countered the ground on sickness by stating that the appellant was treated and returned home. The respondent added that, the appellant stated that, she started getting sick on 13th October, 2022, and she went to nurse her sick mother in February and March, 2022. That it is not true that, she was sick in October, 2022 and her mother was sick in February and March 2022. That she contradicted herself, there was no evidence to show that. The respondent added that the case was heard from 14th May, 2023 up to 12th October, 2023. The respondent further defaulted the appellant that did not give evidence to show that, she was sick during that time. The respondent insisted that the appellant never gave information to the tribunal chairman that she was sick. The respondent also stated that, there is no evidence to show that the appellant’s mother was sick. On the 4th ground that the tribunal did not do just to her. The respondent stated that the appellant was availed 45 days to appeal. That the appellant was told to demolish the construction and compensate the respondent Tanzanian Shillings 115,000/=. That the appellant did not refund the respondent. The respondent further argued that, after the 45 5 days, the appellant went to the ward tribunal where, she was given a letter to take the respondent to the District Tribunal. The respondent argued further that she objected the application for extension of time. That she objected because the case has taken so long. The respondent submitted that when the judgment was delivered the appellant was present at the ward tribunal 25th July, 2022. That the appellant was informed of her right to appeal. That the appellant not respond to appeal. That the District Tribunal gave the respondent officers to demolish the wall. Then the appellant came to this court. In her rejoinder, Ms. Catherine the appellant stated that, the corridor which the respondent claimed that appellant built, it is in her plot and it is attached to her house. She added that when she bought the plot, she found the respondent already residing at that place. That the respondent is in the south, and she bought in the north in front of the respondent’s plot. That she built her house and reside with her kids. That after a long time, she built a house in her open space in her plot. That she left a passage to the respondent’s plot. She added that, as she was continuing with the construction, the respondent sued her to have blocked her passage. 6 The appellant averred that she was called in the Ward tribunal. That the matter was settled. The appellant further averred that at the Ward tribunal decision was made in her favour of the respondent. That the appellant got challenges, she was sick, as a result she could not trace the matter. She stated that brought a sick sheet to the tribunal. That she never refused rather, she accepted the summons. The appellant, added that she went to the tribunal, and the matter was adjourned. That thereafter she fell sick, went to Magereza Hospital. That her neighbour was giving her information to the tribunal. She added that later in December up to March she was in her parents’ home. That her mother fell sick, she had to nurse her. That her neighbour whom they were sued together notified the chairman about her sickness. The appellant reiterated her submission in chief that, at the tribunal she was not heard. That she received the summons at her business place through chairperson. On the issue that the respondent will suffer loss, the appellant queried how could the respondent suffer today. That she won the case, how can she suffer loss. That everyone is pursuing her rights. That she has 7 to demolish the house so that the respondent can have a passage. The appellant claimed that, the passage claimed by the respondent, she never used at all. That the respondent never lived there. She concluded her submission by stating that she prays to be heard. That before the tribunal she was not given that right to be heard. I have intensely and cautiously followed the submission made by both parties and thoroughly perused the record available. In order to be able to determine this appeal, the following main issue has to be answered. That is, whether the appellant was not afforded the right to be heard. To put the record very clear, this is an appeal and not an application for extension of time as some parts of the parties’ submission referred to application for extension of time. In deliberating on the appeal, I will resolve the reasons as submitted by the parties. Starting with the 1st reason of appeal, that the trial tribunal chairman erred in law by not notifying the appellant on the date of delivering judgment. The appellant cited Order 20 rule 1 of the Civil Procedure Code, Cap 33 to cement her submission that whether the decision is ex parte or otherwise, the law requires that the parties be 8 informed on the date of delivering the decision. She added that she was not informed as she stated in her application for extension of time in application to set aside the ex parte judgment under paragraph 6 of her affidavit. To bolster her submission, she relied on the case of Joflo Company Limited & Others vs. Bank of Africa Tanzania Limited (Misc. Civil Application 562 of 2021) [2022] TZHC 12891 (9 September 2022). In reply the respondent stated that, the appellant refused to accept the summons issued to her by Chairman of the Local Government. She added that, the local government chairman (mwenyekiti wa Serikali za Mitaa) stated that, since the appellant refused to accept the summons, the tribunal should serve the appellant by itself. The respondent added that, she took the summons to the appellant’s business place. That the appellant received the summons. That the appellant attended in the tribunal. I perused the trial tribunal’s proceedings of Application No. 68 of 2022 and realized that, page 3 of the proceedings, the parties were ordered to file written submission but did not comply with the tribunal’s order. On page 4 of the proceedings show that, the appellant did not 9 attend before the trial tribunal and that there was information two times that she was sick. At pages 3 to 4 of the proceedings it was recorded that, there was no evidence to show that the respondent was sick. The parties argued vigorously for and against. The appellant claimed that she did not know about the date when the judgment was to be delivered hence she delayed in filing her application to set aside exparte judgment against her. The respondent in rebuttal argued that the appellant did not adduce evidence to show that she was sick and she once received a summons. To be very clear, in the main Application No. 68 of 2022 the appellant did not attend. She attended before the tribunal on Miscellaneous Application No. 68B of 2023 for extension of time to file application to set aside the exparte judgment against her. As I stated earlier, the trial tribunal proceedings show that, after the submission of the applicant/respondent in this appeal, and the 1st respondent in the application were closed, the tribunal pronounced date of judgment. There was no order for the respondent to be notified. Did failure to notify the appellant on the date of ex parte judgment prejudiced the appellant? If yes, what is the remedy. 10 The appellant cited the case of Joflo Company Limited & Others (supra) on the right to be informed on the date of delivering judgment. This case was on extension of time to file an application for setting aside an ex parte judgment. Looking hurriedly, one may find out that they are distinguishable in their facts. The case at hand is an appeal, whereas the latter was on extension of time. When the learned judge found out that the applicant was not informed on the date of delivery of judgment, held that, the applicant was deprived the right to be heard. I sincerely, acknowledge the reasoning of my learned brother, Kakolaki, J, that according to the provisions of Order XX rule 1 of the Civil Procedure Code, Cap 33 R.E 2019 judgment has to be delivered in the presence of the parties. Order XX rule 1 states: “The court, after the case has been heard, shall pronounce judgment in open court, either at once or on some future day, of which due notice shall be given to the parties or their advocates.” The appellant also cited the same provision in her submission. The provision used the word shall, which as per the findings of the case of Joflo Company Limited & Others (supra) is a mandatory requirement. 11 On the 4th ground the appellant claimed that she was not afforded the right to be heard by the trial tribunal. The respondent claimed that the appellant was served with the summons but decided not to attend before the trial tribunal. There was a consensus between the parties that the appellant received a summons once. Before the trial tribunal in Miscellaneous Application No. 68B of 2023, the appellant claimed that she was not notified on the date of delivering the judgment. The trial tribunal chairman at page 4 of his ruling stated that, the appellant did not state when she became aware of the judgment, so that they could count on the days delayed. He found out that the reason was baseless. Also, the appellant under paragraph 7 of her affidavit, she raised the point of illegality which the trial tribunal ruled out that, I wish to quote page 4 of the ruling: “Kuhusu mapungufu aliyosema juu ya kilichofanywa na Baraza la Kata pia sio sababu ya kutosha kwa Baraza hili kuongeza muda kwani hasemi anataka kuongezewa muda wa kuhoji kilichofanywa na Baraza la Kata…” with simple translation, on the illegality of what the Ward Tribunal did is not a good cause for this Tribunal to extend time as she did not state she wants extension of time to challenge what was done by the Ward Tribunal. 12 This shows clearly that, there was an illegality on the face of record occasioned by the Ward Tribunal. This is revealed by the judgment of the Trial Tribunal in Application No. 68 of 2022, page 5 to 6 where the honourable chairman of the tribunal stated that, I quote: “Musa (sic) alitoa maoni kwamba maombi haya yafutwe na yaanze upya kwani baraza la kata lilikiuka kutoa hukumu katika shauri hili” simply, the application be set aside and start afresh since the Ward Tribunal occasioned illegality by making judgment. The honourable chairman disregarded the opinion on account that, the opinion by Musa is disregarded as the parties did not address the tribunal on that. In my humble view, the honourable chairman should have summoned the parties to address the tribunal on the same. Disregarding illegality on the face of record is unjustifiable. It is trite law that, when illegality is raised, the court has to resolve the matter first. If it is at application for extension of time, it is a good cause even if not well presented. So, I think the chairman should have given the appellant an opportunity to be heard as long as she raised the point of illegality. Not notified on the date of delivering judgment and the illegality occasioned by the Ward Tribunal. There is plethora of cases on illegality as a good cause for extension of time. See the case of VIP 13 Engineering and Marketing Ltd and 2 Others vs. CitiBank Tanzania Ltd (Consolidated Civil Reference 6 of 2006) [2007] TZCA 165 (26 September 2007) where the Court of Appeal cited with approval the case of Principal Secretary Ministry of Defence and National Service vs. Devram Valambia (1992) T. L. R 185, it held that: "It is settled law that a claim of illegality of the challenged decision constitutes sufficient reason for extension of time under Rule 8 (now Rule 10) of the Court of Appeal Rules regardless of whether or not a reasonable explanation has been given by the applicant under the Rules to account for the delay.” Also, see the case of TANESCO vs. Mufungo Leonard Majura & Others (Civil Application No. 94 of 2016) [2017] TZCA 239 (5 June 2017) where the Court of Appeal held that: “Notwithstanding the fact that, the applicant in the instant application has failed to sufficiently account for the delay in lodging the application, the fact that, there is a complaint of illegality in the decision intended to be impugned, in line with what was held in the above quoted decisions, it suffices to move the Court to grant the extension of time so that, the alleged illegality can be addressed by this Court.” From the excerpts above, therefore, settled law that, a claim of illegality of the challenged decision constitutes sufficient reason for extension of time, regardless of whether or not a reasonable explanation has been given by the applicant under the rule to account for the delay. Thus, the honourable 14 chairman of the trial tribunal stated that, the appellant did not state that she wants to challenge what was done by the ward tribunal; and she did not argue on the claim that she was not notified on the date of delivering the judgment. In my view, since the Ward Tribunal occasioned illegality and the fact that, the appellant was not notified on the date of judgment as required by Order XX rule 1 of the CPC, were illegalities occasioned by both the Ward Tribunal and the District Land and Housing Tribunal which need to be rectified. In that the issue raised is answered in the affirmative. Hence the 1st and 4th grounds of appeal are meritorious. As a result, the appeal is allowed. Is see no need of deliberating on the 2nd and 3rd grounds as the two grounds suffice to dispose of the appeal. In the upshot, the appellant before the trial tribunal in Miscellaneous Application No. 68B of 2023 had a good cause to warrant the trial tribunal to extend time to file application to set aside the exparte judgment of the trial tribunal out of time. That being the case, this court invokes the powers bestowed unto it by section 43(1)(b) of the Land Disputes Courts Act, Cap 216 RE 2019 which states: 15 “In addition to any other powers in that behalf conferred upon the High Court, the High Court— may in any proceedings determined in the District Land and Housing Tribunal in the exercise of its original, appellate or revisional jurisdiction, on application being made in that behalf by any party or of its own motion, if it appears that there has been an error material to the merits of the case involving injustice, revise the proceedings and make such decision or order therein as it may think fit.” [emphasis supplied] With regard to the provisions of the cited section, the ruling and the order of the trial tribunal in Miscellaneous Application No. 68B is hereby set aside. The trial tribunal chairman is ordered to extend the time for application to set aside the ex parte judgment accordingly. Given the circumstances of this appeal, I make no orders as to costs. It is so ordered. Dated at MBEYA this 1st day of August, 2024. E.L. KAWISHE JUDGE 16