20170730 TZHC Mwanza

IN THE HIGH COURT Of TANZANIA AT MWANZA- LAND APPEAL NO. 103 OF 2015 {From the Decision of the District Land and Housing Tribunal for Mara at Musoma in Land Case No. 700 of 2013 DIRECTOR, MUSOMA Ml!NICIPAL COUNCIL. ....... APPELLANT VERSUS EVERLINE TIMOTHY KITIRA ........................ RESPONDENT . JUDGMENT Last order date ............... 30/06/2017 & Judgment delivery date ... 30/O6/2017 GWAE, J. Aggrieved by the decision of District Land and Housing Tribunal for Mara at Musoma dated 3 rd August 2015, the appellant named above filed two grounds of appeal; notably, firstly, that the trial tribunal erred in law and in facts for misdirecting itself for rising issue which was not in dispute as result it reathed wrong decision and secondly, that the trial tribunal erred in law and in facts for granting the respondent general damages not pleaded in her pleading by respondent and that the same was excessive ~~ and exaggerated. . l. . I' ( ~;· · However, when this appeal was called on for hearing on 7th June 2017, Mr. .. Manyama, the learned Municipal Solicitor so~ght and was accordingly granted leave to file an additional ground of appeal. The additional ground '\ filed on ih June 2017 was to the effect that; the Chairperson of the Tribunal wrongly exercised his discretion and that was against the law. Before me, the appellant and respondent were duly represented by Miss Savera, the learned solicitor and Mr. Kahangwa (adv) respectively. Mr. · Denis Kahangwa rightly conceded to the a·ppellant's complaint that the trial tribunal wrongly exercised its discretion in entertain misrepresentation purportedly done by one Joel who appeared for applicant now respondent before the trial tribunal. I have carefully and dispassionately examined the record and observed that during the sessions held by the trial tribunal, the respondent was .. initially represented by Mr. Kahangwa (adv) however it is clearly evide·nt from the trial tribunal record that on 25/2/2015 when the case was called on for hearing one l<>el emerged as representative of the respondent who had an opportunity to address the trial tribunal and re-examined the respondent{PWl), Onesmo Buleti (PW2) and one Damas Mruta (PW3). ~ 2 (. '../ •- The said Joel proceeded cross- examining defence witness (James Kapeia- , _ . DWl). Nevertheless Mr. Joel had never been named. as an advocate or respondent's.representative in the record nor was his names indicated in the Coram but it is still worse to find the record showing that he was afforded an opportunity of re-examination and cross examining as aforestated. However it is now revealed that Mr. Joel who had been appearing as an advocate before either District Court of Musoma at Musoma or Resident Magistrates' Court of Musoma at Musoma or District Land and Hosing Tribunal for .Mara at Musoma and he is now facing Criminal charges on false representation/personating, thus he was not a person with locus standi to represent the respondent. Since the respondent was represented by unqualified person (person purported to be an advocate while in actual fact was not and since he had no power of attorney -not a recognized agent), the proceedings conducted during his illegal representation are also nothing but a nullity in the eye of the law as complained and conceded by the appellant and respondent's ~)~ 3 1 ,, \ ./ • representative respectively. According to the law (see Order iii Rule 1 and 2 ( ·~· ' . of Civil Procedure Code Cap 33· R.E, 2002) it is clear that a party be it plaintiff or defendant once he is present either in person or by advocate when the case is called up for hearing that is sufficient appearance but a person with no certificate of practicing should not appear as advocate representing a litigant. Any advocate whose name has been entered on the Roll is required by section 10 of the Advocates Act to have in force a valid practicing certificate before he practices in the Courts. Seemingly Mr. Joel purportedly pretended himself to be an advocate to the respondent and the respondent who was prior to the appearance of Mr . .Joel was represented by Mr. Kahangwa, to my simple understanding, it seems as even Mr. Kahangwa believed in him as well as the trial tribunal. It is therefore now hard time for our courts _and quasi tribunals to exercise due diligence in entertaining or treating persons as advocates without assurance or certainty to that effect. There should be scrutiny in case of doubts as to whether a certain person is appearing or practicing as an advocate or not in order to avoid wastage of time and of course 4 I \ . . ( .: •· 'em,barrassment of courts for having laypersons entering appearance in courts as advocates. This habit should now be serious.ly anticipated and the same be in control as much as practicable taking into accoun"t of increasing number of advocates newly enrolled. It is further directed that the advocates should have their identities whenever they come in courts so that they may produce the same when need arises. The additional ground1 determined as herein above is capable of finally disposing this appeal, thus I am not supposed to be' curtailed by other appellant's grounds of appeal In the light of the reasons given herein, the appellant's appeal is hereby allowed to the above extent, consequently, by virtue of section 43 (1) (b) of the Land Disputes Courts Act, Cap 216 R. E, 2002, the proceedings and decision of the trial Tribunal are quashed and set aside. The parties, particularly the respondent is at liberty to lodge a dispute in an appropriate tribunal or court. Each party to bear its own costs of this appeal and those incurred at the trial tribunal It is so ordered. 5 . 'tlffl.~~~ M.J.G~ Jugge 30/00/2017' '/ 6