Misc

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISCELLANEOUS LAND APPLICATION NO. 692 OF 2023 (Arising from Misc. Land Application No. 473 of2023 Hon. Silas, Chairman at the District and Land Housing Tribunal for Kinondoni at Mwananyamala.) ELIZABETH JACKSON BISWARO (As administratix of the Estate of the late JACKSON MWENDA BISWARO)................................................... APPLICANT VERSUS GODLOVE HOSEA NOMBO...................................................... RESPONDENT RULING 02/4/2024 & 29/4/2024 A, MSAFIRI, J, The applicant herein above has filed this Application seeking for the Court's order to call for the records of Misc. Application No. 473 of 2023 determined by the District Land and Housing Tribunal for Kinondoni at Mwananyamala (the District Tribunal), and inspect and revise the decision for the interest of justice. The Application is filed under Section 79(1) of the Civil Procedure Code Cap 33 R.E 2019 (the CPC) and Section 43(b) of the Land Disputes Courts Act, Cap 216 R.E 2019. It is supported by an affidavit sworn by Mr. Nehemia Nkoko, advocate for the applicant. The respondent also filed a counter affidavit contending the Application which was sworn by himself, i and along with it, the respondent raised preliminary objection which was heard and determined and overruled by the court. The court ordered the application to proceed on merit. The hearing of the application was conducted viva voce whereby the applicant was represented by Mr. Nehemia Nkoko, learned advocate while the respondent was serviced by Mr. Cleofas Manyangu, learned advocate. Submitting in support of the application, Nehemia Nkoko, prayed to adopt the contents of the affidavit. He submitted that the applicant is aggrieved that she was not given a chance to be heard on the raised preliminary objection before the Tribunal in Application for Execution No. 473 of 2023 before the District Tribunal. That the applicant has raised a preliminary objection on the competency of the application for the execution and that it was against Order XX Rule 6 and Order XX Rule 9 both of the CPC. He said further that in the execution decree, there was no description of the suit property. That, if the District Tribunal could have heard and determined the preliminary objection then it could not have proceed to grant the execution. He pointed that since the right of the applicant was denied, then the whole proceedings were a nullity. To bolster his stance, he cited the case of Mrs Fakhria Shamji vs. The Registered Trustees of Khoja Shia Ithnasheri (Mza) Jamaat, 2 Civil Appeal No. 143 of 2019, CAT (unreported). He prayed for the court to nullify the proceedings of the District Tribunal in Misc. Application No. 473 of 2023 and set aside the order thereto. Mr. Cleophas Manyangu, replied and prayed to adopt the contents of the counter affidavit sworn by the respondent. He submitted that in order to ascertain the claims of the applicant that he was not afforded the right to be heard in Application No. 473 of 2023, one has to go through the proceedings of the District Tribunal. Mr Manyangu stated that on 23/5/2023, the respondent filed an application for execution as Misc. Land Application No. 473 of 2023 before the Tribunal. That the records show that on 13/9/2023, the application came for mention before the Tribunal but neither the applicant nor her advocate appeared before the Tribunal. That again on 20/9/2023 neither the now applicant, nor his advocate entered an appearance before the District Tribunal. The counsel was of the view that if the applicant and her advocate never showed up before the Tribunal now they cannot complain that they were denied the right to be heard and hence they have no ground to come here seeking for revision. He concluded that the execution of decree was clear and there was no ambiguity hence the decision and order of the District Tribunal should not be faulted. 3 M On rejoinder, Mr. Nkoko reiterated his submissions in chief. He added that on the absence of the applicant on the said dates, it was not shown whether the Tribunal satisfied itself that the applicant and or his advocate were duly served. He reiterated his prayers. Having heard the submissions on the rival parties, the issue for determination is whether there is/was an error material to the merits of the Application No. 473 of 2023, an application for execution before the District Tribunal. The main claim is that the applicant who was by then the respondent was denied the right to be heard on the raised preliminary objection and instead and wrongly, went on to decide the application on merit. In determining this, I went through the proceedings of Misc. Application No. 473 of 2023 whereby the respondent who was then the applicant was seeking for the order of the Tribunal to execute a decree in Application No. 223 of 2015 which was decided in his favour. The proceedings shows that on 13/9/2023, the matter was before Hon. Sillas, Chairperson. The applicant Godlove Hosea Nombo was represented by Anna Marealle, advocate while on the side of the respondent Elizabeth Jackson Biswaro, appeared Advocate Augustino Masanya who was holding brief of Mr Nehemia Nkoko, advocate for the respondent. Advocate Marealle informed the Tribunal that the applicant 4 was ready to proceed but Advocate Augustino prayed for adjournment as the advocate for the respondent, Mr Nehemia Nkoko was appearing at High Court. Following that the matter was adjourned to 20/9/2023 for hearing. On 20/9/2023, Advocate Anna Marealle appeared for the applicant. On the side of the respondent, neither the respondent in person, nor advocate Nehemia Nkoko were in attendance. The advocate for the applicant Ms Anna prayed to proceed and prayed for the application for execution to be granted. The Tribunal proceeded to grant the application as prayed and issued an order for execution of a decree. In the current application, Mr. Nkoko has submitted that the applicant is aggrieved that she was not given a chance to be heard on the raised preliminary objection before the Tribunal in Application for execution No. 473 of 2023 before the District Tribunal. That the applicant has raised a preliminary objection on the competency of the application for the execution. That, if the Tribunal could have heard and determined the preliminary objection then it could not have proceed to grant the execution. He pointed that since the right of the applicant was denied, then the whole proceedings were a nullity. However, having gone through the proceedings of Misc. Application No. 473 of 2023, it is clear that both the respondent who is now the 5 applicant) and her advocate Mr. Nkoko did not appear in Tribunal to prosecute the said preliminary objection which Mr Nkoko claimed that it was raised against the Application for execution. The records shows that the applicant Elizabeth Biswaro who was then the respondent was absent on 13/9/2023 and her advocate was absent however, he send another advocate to hold his brief. That advocate never raised the issue of preliminary objection which was purportedly raised by the respondent. He just informed the Tribunal that Mr Nkoko was attending at High Court. I am of the view that the Tribunal did considered the right to be heard of the respondent as it adjourn the matter to another date which was on 20/9/2023 for hearing. But on that 20/9/2023 both the applicant and her advocate did not appear at all and there was no any notice of their absence. Considering the sequence of events, I find that the Tribunal did not error when it proceeded with the hearing of the execution in absence of the respondent and her advocate. It was the duty of the respondent to appear in Tribunal and prosecute the raised preliminary objection. The applicant was not denied her right to be heard as she claims but she has denied herself that right by her failure to appear before the Tribunal to attend the matter. The right to be heard is a constitutional right of a party and courts have to observe that and ensure that every party to a case is given a 6 chance to exercise this cardinal right. However in our very own Constitution, the rights of an individual goes hand by hand with the obligations or duties. It is my view that indeed the applicant had a right to be heard but also she has an obligation to appear before the court/Tribunal and prosecute/attend her case. As seen in the record, the Tribunal considering the applicant's right to be heard, on 13/9/2023 it adjourned the matter and set it for another date to give chance to the applicant or her advocate to appear in court. But on that another date the applicant still failed to enter appearance. In the event that they both failed to appear and with no any information or notice, then the Tribunal had no option but to proceed to hear the other party who was in appearance. By the above analysis, I find that there was no irregularities or illegalities apparent on face of record in Misc. Application No. 473 of 2023 which has caused injustice to the applicant. I hereby dismiss the instant application with costs. 29/4/2024 7