Misc

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF SUMBAWANGA AT SUMBAWANGA MISC. LAND APPEAL NO. 5169 OF 2024 (Arising from Land Appeal No. 45 of 2022 in the District Land and Housing Tribunal for Rukwa at Sumbawanga and originated from Kipande Ward Tribunal in Land Application No. 10 of2022) CLAVERY LUWELA...................................................................... APPELLANT versus TRESFORY KIBANDIKO............................................................ RESPONDENT JUDGMENT 7th November 2024 & 11th February,2025 MRISHA, The parties to this appeal tangled over a 2.5 acres piece of land situated at Kipande Ward within Nkasi District in Rukwa Region. The said land dispute which involved the respondent herein as the Applicant and, the appellant as the respondent, was registered with Kipande Ward Tribunal as Land Application No. 10 of 2022 and began to be inquired by such trial tribunal on 09.05.2022, and determined ex parte on 21.06.2022 in favour of the respondent. 1 The reason for such outcomes is not farfetched, as the records of the said trial tribunal clearly indicates that several efforts were taken to have the appellant appear and defend the suit against him before the trial tribunal, but he nonchalantly decided not to enter appearance and, consequently, the trial tribunal decided in favour of the respondent whom it declared to be the lawful owner of the suit land, then proceeded to order the appellant to hand over the suit land to the respondent and vacate therefrom. It is also on record, that when the outcomes of the trial tribunal’s decision came to the knowledge of the appellant a month later, he rushed to the District Land and Housing Tribunal for Rukwa at Sumbawanga and lodged the Land Appeal No. 45 of 2022 aiming at challenging the decision of the trial tribunal. His memorandum of appeal which he filed with the appellate tribunal, contained five grounds of appeal which he urged the appellate tribunal to consider, allow his appeal with costs for interest of justice, quash the decision and set aside the orders of the trial tribunal and in lieu thereof, hold that the matter was improperly determined by such trial tribunal. It is further on record, that when the said appeal was called on for hearing before the appellate tribunal, the appellant who appeared in 2 person legally unrepresented, prayed before such tribunal that the appeal be heard by way of written submissions. His prayer was not objected by the respondent and, the appellate tribunal ordered that the parties’ submissions be filed in the following manner: - i. The appellant’s written submission be filed on or before 28.03.2023, ii. The respondent’s written submission file efore 17.04.2023, and; iii. The appellant’s rejoinder s filed on or before 17.04.2023. Thereafter, the matter was adjourned until on 18.04.2023, for mention. The foregoing court scheduled order is displayed at page 6 of the appellate tribunal’s typed proceedings. However, as the records of the said tribunal depict, the appellant did not file his written submission on or before the date scheduled by the appellate tribunal. That is shown at page 7 of the typed proceedings in which it appears that up to 18.04.2023, the appellant had not filed his respective written submission, then on 10.05.2023 when the matter was called for another mention, the appellant appeared and told the appellate tribunal that he 3 failed to file his written submission on time because his advocate was absent. Following such information, and in what appears to have been the tribunal’s leniency, the learned chairperson of the said tribunal, extended the time for filing the parties’ submissions by rescheduling its previous orders to the effect that the appellant’s written submission had to be filed on or before 19.05.2023, the respondent’s reply on 05.06.2023 and, the appellant’s rejoinder submission, if any, had to be filed on or before 12.06.2023. Again, the matter was adjourned for mention on 13.06.2023. However, it appears that what prompted the appellant to knock the doors of this court, is the act of the appellate tribunal’s learned chairperson who instead of considering the fact that the appellant had filed his written submission with the said tribunal timely and deciding the appeal before her on merit, dismissed the same on the ground that the appellant failed to comply with the appellate tribunal’s scheduled order on time. The appellant’s stance through his memorandum of appeal and written submission is that the learned chairperson of that tribunal erred in law and fact to come up with such findings for he filed his written 4 submission on 09.05.2023 which is well within the time scheduled by the said tribunal. On the other hand, his counterpart is of the view that the appellate tribunal was justified in its decision which was grounded on 08.09.2023. Likewise, apart from showing his grievances through his memorandum of appeal and written submission which is allege have been filed lately, the appellant has vehemently maintain he hi ritten submission within the time scheduled the urt, hence according to him, it was erro us al to dismiss his appeal for want of prose However, in a bid rguments by the appellant, the responde ha rg appellant did not honour the order of the ella cou cted him to file his written submission on o efore 3. To fortify his argument, the respondent has wonde why di the appellant prayed for extension of time on 10.05.2023, i rder for him to file his written submission, if his submission that he filed the same timely, was true. Having gone carefully through the memorandum of appeal, the entire records of the appellate tribunal whose decision is faulted by the appellant herein as stated above, and the impugned judgment of the 5 said tribunal, I am of the view that the sole issue worth determination of this court in relation to the present appeal, is whether the appellate court findings which led to the dismissal of such appeal for want of prosecution, were correct. It is a trite law that the second appellate court is not entitled to interfere with the findings of the first appellate court, save where if finds that there was misapprehension of principles of law on the part of the first appellate court which resulted to unjust decision, and or/mis directions. (See: Ahmed Said v Republic, Criminal Appeal No. 291/2015 CAT (unreported) and Mustafa Darajani vs The Republic, Criminal Appeal No. 277 of 2002, CAT (unreported). Reverting back to the case at hand, it is not in dispute that initially, the appellant had to file his written submission on or before 28.03.2023 and the respondent was expected to file his reply written submission with the appellate tribunal on or before 17.04.2023, but due to the reason beyond the appellant’s capacity, the appellate tribunal had to reschedule its previous order, as indicated above, thus directing the appellant had to file his written submission on or before 19.05.2023. The impugned judgment of the appellate tribunal shows inter alia, that the appellant’s appeal was dismissed for want of prosecution on what 6 the learned chairperson of that tribunal considered to be failure of the appellant to file his respective written submission within the time prescribed in the said tribunal’s order. However, as it has been shown above, the appellant was ordered to file his written submission on or before 19.05.2023 which order he complied with. This is because the records of the appellate tri al reveal that the appellant’s written submission was filed on iC is also justified by the appellate tribunal’s typed j me t page 2 of the same, the learned chairper n ppellant’s written submission was filed on 0 02 It appears to me at en her judgment, the learned chairperson P a view that the appellant was bound t with sa ibunal’s order which required him to file his or before 28.03.2023, but she forgot that she had va d her previous order after being moved by the appellant who prayed for e sion of time to file his written submission, and his prayer was granted. In the circumstances, it is my considered opinion that the order which was supposed to be complied with by the appellant, was the one made subsequently and not the previous one. The appellant could have been 7 said to have failed to file his written submission on time, if the appellate tribunal had not granted his prayer of extension of time and rescheduled its previous order. On the other hand, I am unable to agree with the respondent’s argument that the appellant could not pray for extension of time if he had filed his written submission on time. The truth is that the appellant upon seeing that he failed to comply with ivious order of the appellate tribunal on time, he sought to for time within which to file the same and the reco hi ayer was granted without any objection fro If he was not pleased the respondent could have objected it and wait for ibunal to make its ruling whether or not the appellant had assigned some good cause, but unfortunately the respondent took no efforts to challenge that prayer and the appellate tribunal, granted it as stated above. Before I pen off, I wish to say that in the course of going through the impugned appellate tribunal’s judgment, I observed that the learned chairperson of that tribunal reached her decision of dismissing the appellant’s appeal without seeking the opinions of the gentlemen assessors whom she sat with while hearing such appeal. In my view, 8 that was contrary to the provisions of Rule 19 (2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 (the Land Disputes Courts Regulations) which requires the chairman/chairperson of the District Land and Housing Tribunal to require the assessors to give their opinions on the matter before the such tribunal. Thus, based on the foregoing reasons, I am ettled view that the learned appellate tribunal misdirected missed the appellant’s appeal in absence of any justifiable reasons and without assigning any reasons for departing from the opinions of the gentlemen assessors which focused on the merits of the appeal before the said appellate tribunal, thus contravening the provisions of Rule 19 (2) of the Land Disputes Courts Regulations. In the premise, I find and hold that the findings of the appellate tribunal were not correct. Hence, I find merit in the present appeal and proceed to allow it. Consequently, I quash the judgment and orders of the appellate tribunal and in lieu thereof, direct that the original case files of both the trial and appellate tribunals, be remitted to the appellate tribunal for it to consider the parties’ submissions and determine the first appeal on merit. 9 Regarding costs, since the infractions described above, were caused by the appellate tribunal, I refrain from ordering the same. Hence, each party shall bear its own costs. Order accordingly. A.A. MRISHA JUDGE 11.02.2025 DATED at SUMBAWANGA this 11th day 10