eckson mtafya administrator of the estates of the late michael asangalwisye mtafya vs ephraim michael mtafya administrator of the estates of the late michael asangalwi

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA DISTRICT REGISTRY AT MBEYA LAND APPEAL NO. 82 OF 2022 ( Originating from Application No. 225 of2022 in the District Land and Housing Tribunal for Mbeya at Mbeya - Mnzerere, Chairman} ECKSON MTAFYA (Suing as an administratix of the estate of the late Asangalwisye Mwalumbila Mtafya)......................................... APPELLANT VERSUS EPHRAIM MICHAEL MTAFYA (Administrator of the estate of the late Michael Asangalwisye Mtafya).......................................... 1st RESPONDENT ISA KIBONA............................................................................................... 2ndRESPONDENT BASALEGHE KANDONGA*.......................................................................... 3rdRESPONDENT DAUDI SHILINDE..................................................................................... 4thRESPONDENT RULING Date of last order: 16/03/2023 Date of judgment: 31/03/2023 NGUNYALE, J. The appellant filed application No. 225 of 2022 before the District Land and Housing Tribunal for Mbeya at Mbaya against the respondents praying among other orders to be declared a lawful owner of the suit land. The suit land measure 10 acres was alleged to be located at Nakasale hamlet within Ileje District in Songwe Region. Upon a full trial, the tribunal rule in favour of the respondents in the judgment dated 4th July 2022. The 1 | Page tribunal said that the suit land was a lawful property of the respondents hence the application was dismissed with costs. The appellant was seriously aggrieved with the decision of the trial tribunal, he preferred the present Land Appeal No. 82 of 2022 seeking to challenge judgment and decree of the trial court. The appeal was heard and set for judgment today. In finalising preparation of judgment, the court noted part of the proceedings dated 22/03/2022 thus: II Philip Mwakiiima: Nafunga ushahidi wa utetezi wote. Tunaomba twende eneo la mgogoro... Amri; Amri: Maoni yatasomwa tarehe 13/04/2022" emphasis added The above proceedings are very clear that the respondents counsel raised a prayer of visiting locus in quo but the tribunal neither availed the other side a right to reply to the prayer nor ruling on it. The court found it prudent to be satisfied as-to whether the omission was a fatal irregularity or not. The parties were invited to address the court on the same. Ms. Tumaini Amenye learned Counsel appeared holding brief for Mr. Philip Mwakiiima with instruction to proceed while the appellant was represented by Advocate Moses Mwampashe. 2 | Page Mr. Mwampashe from the outset declared his stance that an omission to determine a prayer of a party to the case is fatal, it vitiates proceedings and judgment. The best legal practice required every question or prayer raised by the parties during trial before the court to be determined. It is to be determined for the essence of the right to be heard. He prayed the court to consider the anomaly in determining the appeal because the omission had vitiated proceedings and judgment. In her part Ms. Amenye submitted that it was obligatory for the trial tribunal to determine the prayer about visit locus in quo, the omission is a fatal irregularity which need to be rectified. The same can be rectified by nullifying proceedings from the point of defect and the records be remitted to the tribunal to determine the pending issue or prayer. To bolster her point she referred the court to the case of Geita Gold Mining Limited vs Sweetbert Harbert, Civil Appeal No. 269 of 2019 Court of Appeal of Tanzania at Mwanza that failure to determine a prayer or deliver ruling is unfair and is an irregularity which its remedy is to remit the records to the trial court to compose and deliver ruling. She prayed the court to quash the proceedings from the date/point of irregularity to give room the trial tribunal to determine the pending issue. 3 | Page Having heard the rival submission of the parties I will smoothly determine the concern raised suo mottu by the court by answering the issue whether the omission by the trial tribunal was fatal and in case the answer is in affirmative then I will have to decide the way forward. I subscribe to the position of both counsels that it was fatal for the trial tribunal to leave a prayer hanging without hearing the parties and rule upon it. The same is considered to be fatal because it goes to the important right i. e the right to be heard. The appellant was denied a right to be heard on the prayer of the respondents and the tribunal avoided its core function of deciding or adjudication. The right to be heard is fundamental it cannot be lightly taken without good cause. The fact that the irregularity has been ruled to be fatal I agree with the respondents' counsel that the proceedings from the point of irregularity and the resultant judgment was a nullity as it happened in the case of Geita Gold Mining Limited (supra). I therefore invoke revisional jurisdiction under section'43 (1) (b) and (2) of the Land Disputes Act Cap 216 R. E 2019 to quash the proceedings dated 22/03/2022 after the prayer of locus in quo and set aside subsequent orders and judgment. The trial tribunal presided by the same Chairman should conduct hearing on the prayer of locus in quo and proceed to determine it and the subsequent part of the case according to law and procedure. Order accordingly. Dated at Mbeya this 31st day of March 2023^ . P. Ngun Judge Ruling deliv< 1st day of March 2023 in presence of Mr. Mwampashe for,the_appellant and the respondents represented by Ms. Tumaini Ai . Ngunyaie Judge 5 | Page