JUDGMENT Edward Moris Ngahyoma

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY AT SONGEA LAND APPEAL NO. 15281 OF 2024 (Originating from the District Land and Housing Tribunal for Songea at Songea in Miscellaneous Application No. 58 of 2023) EDWARD MORIS NGAHYOMA (Suing under Power of Attorney given to Hilder Maurice Ngahyoma) ….……………… APPELLANT VERSUS ALOYCE D. MILINGA ……..………..…..………………...…………… RESPONDENT JUDGMENT 30th October & 18th November, 2024. KAWISHE, J.: This appeal emanates from the decision of the District Land and Housing Tribunal for Songea at Songea (trial tribunal) in Miscellaneous Application No. 58 of 2023, where the appellant unsuccessful filed an application before the trial tribunal for an order to set aside the dismissal order in Land Application No. 29 of 2023. Dissatisfied with the decision 1 of the trial tribunal the appellant filed this appeal on the following grounds of complaint: 1. That the trial tribunal erred in law and facts for failure to consider the applicant Counsels’ affidavits of which on their affidavits each and every thing was stated clearly but the Chairperson did neglect to consider, and purported that nothing was stated therein. 2. That the trial tribunal erred in law and facts for failure to consider the merits of the case instead based on issues of mere technicalities of which makes the other part to be defeated by technicalities instead of merits. 3. That the trial chairperson erred in law and facts in its decision by stating that the appellant’s advocate had a tendance of missing the court session especially on 14th day of July, 2023 without considering that on that date, the representative of the applicant was present in court and the file was called early before the scheduled time and representative was present and was directed to notify his advocate what transpired, by saying so the Hon. Chairperson was bias to the Counsel for the Applicant, by relying on historical background while knowing the real situation of the specific referred date. Before getting immersed into the details of this appeal, it is pertinent at this stage to provide the background of this appeal. Before the trial tribunal, Application No. 29 of 2023 was dismissed on 17th October, 2023, when it was called for the hearing. It was dismissed for non-appearance of the appellant who was the applicant. The trial tribunal made that decision backed by the provision of regulation 11 (1) (b) of the Land Disputes Courts (District Land and Housing Tribunal) Regulations, 2003 (GN. No. 174/2003). The appellant herein was 2 irritated with the dismissal order and under the services of Mr. Mapunda, learned advocate filed Miscellaneous Application No. 58 of 2023. The application was made under regulation 11(2) of the Land Disputes Courts (District Land and Housing Tribunal) Regulations, 2003 (supra) and supported by an affidavit sworn by the appellant’s advocate stating the reason for his non-appearance on the date when the matter was scheduled for the hearing. The trial tribunal found the applicant to have failed to advance reasonable grounds fit for the dismissal order to be set aside. The application to set aside the order was dismissed for among other reasons that, there were no good reasons as to why the appellant’s representative failed to enter appearance when the matter was scheduled for the hearing. Then, the appellant preferred this appeal before this court challenging the decision of the trial tribunal. When the appeal was called for hearing, the appellant was represented by Mr. Bernard Mapunda, learned advocate whereas, the respondent appeared in person and fended for himself. Submitting on the first ground of appeal, Mr. Mapunda argued that, the affidavit sworn in support of the application before the trial tribunal stated the reasons for setting aside the dismissal order but the 3 reasons were wrongly ignored. That the trial Chairman erred in stating that there was no reasonable ground advanced by the appellant. On the second ground, he submitted that the trial tribunal in its decision based on technicalities in deciding the application before it while it was clear from the appellant’s affidavit that the disputed land is registered in the name of Moris Ngahyoma (the appellant). He added that, even the land rent receipts which were attached in the application are in the name of the appellant. Mr. Mapunda submitted that the decision of the trial tribunal prejudiced the appellant who is paying rent for the disputed land. He contended that the trial tribunal was required to allow the application by restoring the dismissed application for the suit to be heard on merits for proper dispensation of justice. Arguing on the third ground of appeal, Mr. Mapunda contended that the trial tribunal erred in its decision in stating that the appellant’s counsel had a tendency of absconding from court, specifically 14th July, 2023 when the matter was scheduled for mention at 09:00 am and only the appellant’s representative appeared. He faulted the trial tribunal by referring the matter on that date since the trial tribunal is to be blamed for adjourning the matter before the time set and ordering the appellant’s representative to notify his advocate. He prayed for this 4 appeal to be allowed and the dismissal order be set aside and the court order for the dismissed application be determined on merits by receiving evidence from both parties. On the issue of costs, he prayed for each party to bear its own costs. In his response, the respondent resisted the appeal. Arguing against the appeal, he submitted on the grounds of appeal jointly. He argued that, it is not correct that the Chairman called the matter before the ordered time. He added that, the appellant’s advocate never attended before the tribunal four times and the date mentioned by the Chairman was one of the dates. He contended that, the disputed land is his own property having purchased it from the indigenous in 1996 and in 1997 he managed to build a house foundation on it after obtaining permit from the land authority. He added that, he is living in a house built in the disputed land since 1997. Moreover, he refuted the appellant’s assertion that the disputed land was given to him as he was the appellant’s shopkeeper before he left for the United States of America. He averred that, the appellant never left anything to him. Lastly, he prayed for this appeal to be dismissed for the reason that, he has been in the disputed land without 5 any disturbances from 1996 up to 2023 when he was sued by the appellant before the trial tribunal. In his short rejoinder submission, Mr. Mapunda argued that, from the trial tribunal proceedings, it is not correct that the appellant’s advocate did not attend four times as stated by the respondent. He prayed for this court to revisit the records in the proceedings of the trial tribunal to find on the truth of the attendance of the appellant’s advocate. Mr. Mapunda also disputed the respondent’s assertion that he acquired the disputed land in 1996 and argued that, if he is the lawful owner, the appellant could have not been served with rent invoice because he has been paying rent on the disputed land. He lastly prayed for this appeal to be allowed for the matter to be heard in order to ascertain the lawful owner of the disputed land. I have passionately followed the submissions made by both parties, perused the grounds of appeal and original records available. Then, it is an ample time to deliberate on the merits or otherwise of this appeal. In in this appeal, there is only one issue upon which this court is called to make its determination. The issue is whether this appeal has merit. 6 It goes without saying that regulation 11(1)(b) of the Land Disputes Courts (District Land and Housing Tribunal) Regulations, 2003 (supra) empowers the trial tribunal to dismiss an application when the applicant fails to enter appearance when the application is called for the hearing. The provision reads as follows: “11 (1) On the day the application is fixed for hearing the Tribunal shall: (a) ……… N/A (b) When the applicant is absent without good cause, and had received the notice of hearing or was present when the hearing date was fixed, dismiss the application for no- appearance of the applicant”. From the quoted provision, it is clear that, for an application to be dismissed, the tribunal must satisfy itself on the following conditions. First, that the application was fixed for the hearing. Second, the applicant is absent without good cause. Third, the applicant had received the notice of hearing or was present when the hearing date was fixed. The three conditions must be proved collectively. In the instant appeal, the records found in the trial tribunal’s proceedings reveal that, on 11th September, 2023 when the matter was scheduled for the hearing on 17th October, 2023, neither the applicant nor his representative was present. Also, there is no proof that he received the 7 notice of hearing. The records show that, when Application No. 29 of 2023 was called for mention on 14th July, 2023, the respondent entered appearance while the applicant had a representative. The matter was ordered for the hearing on 11th September, 2023. The records are silent on what happened on 11th September, 2023. On the same date, the trial tribunal’s proceedings on the part of the coram shows the trial tribunal Chairman was all alone and no order was issued. Thereafter, the coram of 17th October, 2023 when the application was called for hearing only the respondent was present and the application was dismissed for non- appearance of the appellant (applicant). While the appellant’s learned counsel faulted the trial tribunal’s decision, the respondent is of the view that, the tribunal decided rightly as the learned counsel missed court four times. Thus, from the trend shown on the trial tribunal proceedings, it is clear that, when the challenged application was dismissed, neither the appellant nor his representative was present. It is undisputable fact that, the appellant did not show appearance on 14th July, 2023 when the matter scheduled for the hearing on 11th September, 2023. However, as I have pointed earlier herein above, on that date the coram does not show whether the parties attended or not. Due to the facts on the 8 coram which is not clear, it leaves an answered question. Even there was no order for the next date but it appears in the proceedings that, the matter was called on 17th October, 2023 when neither the appellant nor his representative appeared and the matter was dismissed. The records are silent whether when the matter was scheduled for the hearing on 11th September, 2023 the appellant was notified as required by regulation 11(1) (b) of the Land Disputes Courts (District Land and Housing Tribunal) Regulations, 2003 (GN. No. 174/2003). In his argument, the respondent has not managed to show that the applicant was informed as required by the regulation. The appellant’s learned counsel, invited this court to revisit the records in the proceedings of the trial tribunal to find out the truth of the attendance of the appellant’s advocate. As I have shown herein above, the trial tribunal proceedings in Application No. 29 of 2023 do not speak for themselves. I have gone through the trial tribunal’s decision in Miscellaneous Application No. 58 of 2023 and the applicant/appellant’s learned advocate affidavit and found out that the appellant’s learned advocate did not manage to give a good cause on non-appearance. They did not tender any evidence to convince the trial tribunal to set aside its order. With regard to that failure on the part of the appellant, the tribunal was 9 justified to dismiss the application for setting aside its order. If the proceedings in Application No. 29 of 2023 were self-explanatory showing the orders of the tribunal evidencing that the appellant was notified as required by the law, the order of the trial tribunal delivered on 28th May, 2024 could have been upheld. To the contrary, the appellant deserves a benefit of doubt occasioned by the dumbness of the proceedings in Application No. 29 of 2023. In the decision delivered by the trial tribunal Chairman, regulation 13 of the Land Disputes Courts (The District Land and Housing Tribunal), Regulations, 2003, was applied but that provision was not properly applied for the reason that, it is applied in a situation where the matter has been fixed for hearing but the advocate representing the applicant fails to appear. In Land Application No. 29 of 2023, there is no where shown that the appellant was represented by an advocate. However, page 3 of the tribunal’s ruling in Application No. 58 of 2023 stated that the applicant’s learned advocate has a history of not attending in court especially on 14th July, 2023. I find the trial tribunal flawed on that point. It was the parties who are recorded in the proceedings. Sanctioning a party by applying a law which covers the conduct of an advocate is not practicable. All in all, the proceedings of 10 the trial tribunal and the reasons for the dismissal order are not in one piece. They do not speak the same language. They are contradictory to each other. That being the case, the issue raised whether this appeal has merit, is answered in the affirmative. Consequently, the appeal is allowed and I quash and set aside the decision of the District Land and Housing Tribunal in Miscellaneous Application No. 58 of 2023. Accordingly, I order for Application No. 29 of 2023 to be restored for continuation from where it stopped when it was dismissed for want of prosecution. No order as to costs. It is so ordered. DATED and DELIVERED at SONGEA this 18th day of November, 2024. E. L. KAWISHE JUDGE COURT: Judgment delivered in the presence of Mr. Nestory Nyoni, appellant’s learned advocate and in the presence of the Mr. Aloyce Milinga the respondent in person. 11 Right of appeal is explained. E. L. KAWISHE JUDGE 18/11/2024 12