emmanuel hosea kayandaadministrator of the estate of hosea kayanda ntamalengelo vs dagras hosea kayanda 3 others 2023 tzhc 18661 30 april 2023

HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB REGISTRY OF KIGOMA) AT KIGOMA LAND APPEAL NO. 32 OF 2022 (Arising from Ex parte Judgment in Land Application No. 216 of 2019 of the District Land and Housing Tribunal at Kigoma Before: Hon. M. Mwinyi, Chairperson) EMMANUEL KAYANDA HOSEA (Administrator of the Estate of the late HOSEA KAYANDA N TAM ALENG ELO ) APPELLANT VERSUS DAGRAS HOSEA KAYANDA 1ST RESPONDENT SPECIOZA DOMINIC 2 ND RESPONDENT BABU JUSTIN MOLLEL. ...•.••••••••••.••.••••..•••.•.••.•.•••••••.•••. ]RD RESPONDENT IDRISA SELEMANI YUSUF 4TH RESPONDENT Date of last Order: 25/04/2023 Date of Judgement: 30/06/2023 JUDGEMENT MAGOIGA, J. The Appellant, EMMANUEL KAYANDA HOSEA aggrieved by the ex-parte judgement of the District Land and Housing Tribunal for Kibondo dated 03/07/2020 in Land Application No.216 of 2019 now appeals against the ~ 1 said w ho le judg m e n t and D ecree of the tria l T rib una l to this Co urt arm e d w ith 7 g rou n d s o f ap p ea l, co uch ed In the fo llo w ing lan g u ag e , nam e ly :- 1. T h at, the lea rne d tria l C h airm a n grossly erre d in law an d facts and m isd ire ct ed him self that the T rib una l had no pecun ia ry ju risd ict io n fo r the case w h ich w as tran sfe rred fr o m the W ard T rib un a l fo r the pu rpose of en ga g in g the se rv ice of Advocate an d he ld in favo u r of the Respond e nts; 2. T h at, the lea rne d tria l C ha irm a n gro ssly e rred in la w and facts by de libe rately to tally faile d to prope rly reco rd in g evalu ate an d an a lyse evid en ce of the ap p lican t an d is w itne ss an d he ld de cisio n in favo u r of the respo nd e nts; 3 . T hat, the lea rned tria l C ha irm an g rossly erre d in law and facts by totally failed to co rrectly inte rp ret the law an d au tho ritie s and he ld in favou r of the respo nd e nts; 4 . T hat, the le arned tria l C h airm an g ro ssly e rre d in law and facts by fr a m ing three issues, m a kin g m isd irectio n o n an sw e rin g on e issue an d igno rin g to m a ke an y fin d in g s o n the tw o re m a ine d issue s. 5. T h at, the le arne d tria l C ha irm an g ro ssly erred in la w an d fact w he n co m p o sin g his ex parte jud g m e nt, he fr am e d new issue suo m otto and de cide d it in favo u r of the R espo nd e nts w itho ut availe d A_ 2 op p o rt un ity to th e ap p lic a n t to a dd re ss it a nd d e ci d e d in fa vo u r o f th e re s p o n d e n ts; 6 . T ha t, th e lea rn ed tria l C h a irm a n g ro ssly e rred in la w a nd fa cts b y to ta lly fa ile d to h o ld tha t th e 1st and 2nd Respondents had no locus standi to sale probate land without the consent of the Administrator of the Estate or the family members; 7. That, the learned trial Chairman grossly erred in law and facts by not considering at all the written submission by the appellant and held in favour of the respondents. In the end, the appellant prayed that, this appeal be allowed in the orders as in the memorandum of appeal. It is imperative now to state the brief backdrop to this appeal for better understanding this landed dispute. In the Ward Tribunal of Kibondo, the appellant (as administrator of the estate of the late Hosea Kayanda Ntamalengelo) instituted Land Case No. 79 of 2019 against the abovenamed respondents for recovery of piece land sold to the 3rd and 4th respondents by 1st and 2nd respondents. Vide Misc. Land Application No. 216 of 2019, on 08/10/2019 the applicant successfully moved the District Land and Housing Tribunal for an order of transfer of those proceedings to itself to accommodate the applicant's desire to have legal representation. The said Land Application was registered as ~ 3 APPLICATION NO. 93 OF 2019 but was later on 29/04/2020 amended and registered as Land Application No. 216 of 2019. Briefly, the Appellant's claims against the respondents in the said Land rd Application was for declaration that the sale of the land to the 3 and rd 4th respondents by the 1st and 2nd respondents be null and void, the 3 respondent to demolish his structure, costs of the application and any other reliefs the Tribunal deem just and fit in the circumstances of this landed dispute to grant. On the other hand, as the record shows, the respondents didn't appear to defend their case nor filed any response to the application despite all efforts to serve them. By the order of the Tribunal dated 28/4/2020, the application was ordered to proceed ex-parte. Having heard the appellant's case, the trial Chairman delivered its judgement on 03/7/2020 dismissing the application for want of th jurisdiction and proper procedure to join 3rd and 4 respondents as co respondents in the dispute. It was against the above background; the appellant preferred this appeal to this Court faulting the trial Tribunal findings. In the end, the appellant prayed that, this appeal be allowed with the former prayers ~ affirmed. 4 A t th e h ea rin g th is a p p e a l b e fo re this Co u rt , th e a p pe ll an t w as re p re s e n ted b y M r. J o hn N y a m ro n g e, lea rne d a d v o ca te ; w h ile th e th e re sp ond e n ts w e re p re s e n t an d u n rep resen te d . B o th p a rt ie s w e re rea d y fo r h e a rin g . M r. N y a m ro n g e s ta rte d by su b m itt in g o n the firs t g ro u n d b y fa u lting the tria l ch a irm a n fo r fa ilu re to o bs e rv e tha t th e tra n s fe r o f th e case w as m a d e b y the o rd e r o f th e T rib una l based o n engag e m e n t o f th e a d v oc a te a n d n o t o n th e a m o un t cl a im e d . O n the 2 nd ground the counsel faulted the chairman for using the reasons which were not clear to arrive at his conclusion. To support of this ground, Mr. Nyamronge cited the case of Tanzania Breweries Limited vs Antony Mingi, 2016 CAT Mwanza in which it was held that any decision must contain reasons or else the decision becomes arbitrary. Guided by that stance, Mr. Nyamronge urged this court to find merits in this ground as the proceedings shows that the chairman was biased and acted without reason. On the third ground, Mr. Nyamroge faulted the chairman for failure to interpret the law and authorities, particularly Order I Rule 3 of the CPC for contradicting that the nonjoinder of the defendant was fatal. In support of this he cited the case of Claud Roman Saibony and ·4 ~ 5 Others vs Baraka and 4 others [2019] TLR CAT where it was held that failure to join a party do not by itself be enough to fault the decision unless those not joined were affected. Guided by the above stance, it was the appellant's counsel submissions that in this appeal the trial chairman wrongly invoked the issue of jurisdiction and made finding not supported by record. To buttress his argument, the counsel cited the case of Milcom vs James R. Ruthel and 2 others [2017] TLS 424 where it was held that failure to join all respondents do not take away fruits of justice. What is to be looked at is the substance of the case. The counsel pointed out that, the point was raised suo motto without hearing parties but again went on declaring rights of the parties. On that note he prayed this point be allowed. On the 4th ground, Mr. Nyamronge faulted the chairman for framing one issue on jurisdiction without determining other issues. He referred to page 5 the judgment. To support his stance the counsel cited the case of Sheik Hamed Said vs Registered Trustees of Manyama Masjid, [2005] TLR 61 where he framed four issues but confined ~ himself to one issue. 6 O n 5 th ground, Mr. Nyamronge went on faulting the chairman for raising an issue suo motto and compose the judgment without affording the appellant the right to be heard. According to the counsel for the appellant, the issue of jurisdiction and joining of parties was suo motto framed and decided contrary to the Rules of natural justice thus contravened article 13 of the constitution. He referred this court to the case of Jamary Hamed vs CRDB Bank Ltd [2019] TLS CR 99 CAT underscoring the point that new issue when raised parties to the case have to be heard and failure of which renders the decision nullity. Mr. Nyarilronge arguing ground number 6 submitted that, the chairman was wrong to hold that the 1st and 2nd Respondents had no locus standi to buy the probate land without consent of the administrator and other family members. He strongly resisted that it was erroneous and wrong. He cited the case of Solomon Sinwa Netinku vs Neterian Simon Mollel and 2 others, [2018] TLR 561 HC. The 1st and 2nd Respondents had no good title to pass to the buyers hence the sale was void abi initio. On that note the counsel reasoned that the sellers had no saleable interest because the disputed plot was one of the probate ~ 7 p ro p e rt ie s s ubje ct to d istrib u tion . H e , th u s , u rge d th is c o u rt to fi nd tha t th e sa le w a s v o id fo r w an t o f in te re st to p as s to th e b u ye rs . F in a lly o n th e 7 th ground, Mr. Nyamronge faulted the chairman for failure to consider written submissions without assigning any reason. In support of this ground, Mr. Nyamronge cited the case of Tanzania Breweries Limited vs Antony Nyingi, [2016] TLS CR 16 CAT that both arguments have to be considered and give reason for rejecting one side. According to Mr. Nyamronge, this was not done in this case. In sum, Mr. Nyamronge prayed that this appeal be allowed by granting orders prayed in the grounds of appeal with costs. The 1st respondent, Dagras Hosea Kayanda in reply to the appeal generally argued that the disputed plot was not a property of the deceased but it was his own property which he sold. On other issues raised, the 1st respondent argued that they had nothing to do with him. He therefore prayed this appeal be dismissed with costs. Addressing this court in reply, the 2nd respondent, Specioza Dominick told the court that the disputed plot is not forming part and parcel of the Probate properties. She submitted that the plot was given to Hosea in 1980 by his father so not forming part of the estate. She argued further that she was married in 1988 and the land in question was given 8 • to th e m u n d is tu rb e d s in c e th e n u n til w h e n h e r fa th e r-in -la w d ied in 2 0 1 4 is w he n th e a p p e ll a n t w an ts to d is tu rb th e peac e . It was her submission that, every heir had already been given his/her shares. She faulted the administrator of estate for selling his part and causing chaos in the family. Finally, she prayed the appeal to be dismissed with costs. The 3rd respondent, Babu Justin Mollel in response submitted that the appellant had no right to claim a land not belonging to him. He strongly argued that they bought the land from lawful owners. He then asked this court to dismiss the appeal with costs. On his part, the 4th respondent, Idrisa Seleman Yusuf, had nothing new to submit but told the court that he concurs with what the 3rd respondent said fully and others. In rejoinder, Mr. Nyamronge reiterated his earlier on submission and replied that justice should be seen to be done. This marked the end of hearing of this appeal. The noble task now of this court is to determine the merits or otherwise of this appeal after hearing the rivalling parties' submissions. However, before going into that hill task, I have noted through reading the record of the trial Tribunal proceedings and rivalling submissions of the learned counsel for the appellant and respondents that there are some facts not ~ 9 d is p u te b e tw e e n p a rt ie s , w h ic h w ill a s s ist th is co u rt to d o ju stice to th is a p p e a l. T h e s e a re : one, there is no dispute that the appellant and the st nd 1st respondent are blood brother. Two, that the 1 respondent and 2 st respondent are husband and wife. Three, no dispute that the 1 and th 2nd respondent sold the dispute plots to the 3rd and 4 respondent for Tshs.2,800,000.00. Hdwever, what is in serious dispute, in my considered view, in this rd th appeal, is the justification of sale of land in dispute to the 3 and 4 respondents· by 1st and 2nd respondents, the jurisdiction issue and the suo motto framing of issues without hearing parties. In determining this appeal, I find apposite to deal with legal grounds of jurisdiction issue as raised in the first ground of appeal and the suo motto raising an issue without affording parties rights to be heard. These two in my considered opinion suffices to determine this appeal. I have seriously considered the arguments and the record of appeal in this appeal and found out that, the issue of jurisdiction was through back door inserted in the issues alleged framed by the trial chairman, and in my considered opinion, without involving the advocate for the appellant. I will explain. One, the trial chairman did no sign the paper th which is alleged to have drawn issues which were three but the 4 issue, is obvious, was added later because, at any rate, if the chairman felt to ~ 10 h av e n o ju risd ic tio n w a s to d e te rm ine th e a p p lica tio n , w a s first to in v ite pa rt ie s to a dd re ss h im o n th e p o in t. B u t a s th e re co rd sta nds , th is is su e w as su o m o tt o rais e d a n d de te rm ine d at th e d e trim e n t o f th e a p pe lla n t. T h is w a s w rong an d it v itia te the w h o le p ro c ee d in g s an d ju d ge m e n t. Two, much as the application to transfer the Ward Tribunal proceedings were preferred by formal application vide Misc. land Application No 216 of 2019 and a decision to that effect made, it was wrong for the trial chairman to raise the same and decide it without hearing parties. This further signifies that the issue of jurisdiction, as rightly observed above, was suo motto raised because had the trial chairman invited parties to address him on the same, the learned advocate Hope Kawawa could have assisted the Tribunal not to plunge into this legal morass. This was not done. Three, even in the final submissions fifed by the learned ~... t . advocate for the appellant with leave of the "tribunal, an issue of jurisdiction, was not among the matters that were canvassed showing and proving my observation that it was the trif.ll chairm~-? _own design. Four, I have as well observed that, at all strength of imaqmation, the amount claimed in the application was Tshs.5,600,000.00 which was well within the jurisdiction of the trial Tribunal and not even the Ward Tribunal. The trial Tribunal chairman, thus, misdirected himself into raising an issue that was nonstarter between parties and consequently cfJIA 1J.. o c c a s io ne d fa il u re of ju stic e in th is a p p e al. T h e c o u rse ta ke n b y tria l C h a irm a n w a s u n w a r ra n ted a n d u n ca ll e d fo r h im . T h e b a ll d id n ot e n d th e re , b u t o n the 5 th ground, which main complaint was that the trial Chairman suo motto framed an issue which was decided without affording parties right to be heard. The respondents never replied on this point. Without much ado, I agree with Mr. Ny mronge that the issue of joining the 3rd and 4th respondents was suo motto raised in the judgement and parties were denied right to be heard. This is very clear at page 2 of the typed judgement whereby the trial Chairman stated as follows: "In suo motto this honourable court raised another issue to wit: iv. whether it is proper to join 3rd and 4th respondents as co- respondents in the matter at hand" No doubt the above quoted extract was done without affording the appellant rights to be heard. In my strong considered opinion, this was fatally wrong and vitiate the whole judgement. The right to be heard in our jurisdiction is fundamental that this court and the Court of Appeal of Tanzania have repeatedly held that 'right to be heard is not only cardinal principal of natural justice but also a fundamental right constitutionally guaranteed under article 13(6) (a} of the ~ 12 Constitution of the U nited Republic of Tanzania as am ended. For that reason, any deci sion arrived in contravention of it w ill not be left to stand even if the sam e deci sion w ould be reached had the party been heard.' See the cases of Shule ya Sekondari Mwilamvya Vs. Kaemba Katumbu, Civil Appeal No.323 of 2021, CAT (Kigoma) (unreported), Abbas Sherally and another Vs. Abdul Sultan Haji Mohamed Fazalboy, Civil Appeal No.33 of 2002, CAT (Unreported). Now with the two legal grounds found merited in this appeal, I find no need to consider other grounds raised for will be for academic and futile exercise as of now. Therefore, on the totality of the above reasons, I find merits in the first and fifth grounds of appeal. I allow them and consequently, I find the proceedings and judgement of the trial Tribunal a nullity for violation of right to be heard. Thus, I consequently exercise by. powers under section 43(1) (a) and (b) of the Land Disputes Courts Act, [Cap 216 R.E. 2019] by revising and set aside the proceedings, judgement and decree of the District Land and Housing Tribunal of Kibondo and order that for the interest of justice, this case file be reverted back to DLHT of Kibondo to be heard before another competent chairman to try this suit. 13 In the circumstances, and bearing in mind it is the trial Tribunal which mishandled the proceedings by suo motto invoking matters not applicable, I order each party to bear his/ her own costs in this appeal. . ' It is so ordered. Dated at Kigoma this 30th day of June, 2023. S. M. MAGOIGA ----- JUD GE 30/06/2023 14