equity bank tanzania ltd 2 others v hamad big mohamed 2023 tzhc 21630 29 september 2023

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA LAND APPEAL NO. 96 OF 2022 (Originating from Dodoma District Land and Housing Tribunal in Misc. Land Application No. 106 of 2021) EQUITY BANK TANZANIA LTD.................................. 1st APPELLANT NUTMEG AUCTIONEERS & PROPERTY MANAGERS COMPANY LTD................. 2nd APPELLANT WILLIAM LUCAS KWEKA......................................... 3rd APPELLANT VERSUS HAMAD BIG MOHAMED..............................................RESPONDENT RULING 29' August & 29' September, 2023 HASSAN, J.: The appellants herein lodged the instant appeal challenging the order of the District Land and Housing Tribunal of Dodoma in the Misc. Land Application No. 106 of 2021 to expunge from the record the Deed of Settlement dated 26th day of October, 2022 contrary to the practice and procedural law. 4 The facts giving rise to the matter at hand is that, initially, the respondent herein filed a Land Application No. 106 of 2021 in the District Land and Housing Tribunal of Dodoma against the applicants. Before hearing commenced, parties opted to settle their dispute harmoniously. That led them to execute a deed of compromise. And the same was filed to the tribunal on 28th day of September, 2022 in terms of Order XXIII Rule 3 of the Civil Procedure Code, [Cap. 33 R.E 2019], and Regulation 18 (1) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations G.N No. 174 of 2003. The said deed of compromise gathers the agreement that, the 3rd appellant herein will compensate the respondent herein sum of TShs. 5,000,000/= as an additional purchase price of the suit premises which will be paid within three days after the matter which is pending in the tribunal is marked withdrawn as per item 2 of the afore-mentioned deed of compromise. On 6th day of June, 2023, when the matter was called on for the hearing before this court, the 1st and 2nd appellants were represented by learned counsel Mr. Yongolo and the 3rd appellant was represented by Mr. Emmanuel Bwile, also learned counsel. On the other side, the respondent 2 enjoyed the service of learned counsel, Ms. Sarah Ngereza. Counsels for both sides coincided to dispose this appeal by way of written submission. Thankful to them for complying fully with the scheduling order and the matter was thereafter booked for ruling. However, in the course of writing the ruling, I observed some irregularity which is material to the outcome of this application involving injustice. The irregularity noted is to the effect that the said deed of compromise which is the subject of this application was not tendered and then admitted by the tribunal to form part of the records. Thus, seeing that I vacated my earlier order thus, instead of delivering the ruling, I re-opened the proceedings and invited the parties to address the court on the issue raised suo motu in addition to what they have presented earlier on in the grounds of appeal. Advancing with his ground of appeal, the appellants contended that, on 9th day of November, 2022, the counsel for the respondent had misled the tribunal that, the 3rd appellant failed to comply with the conditions set forth in the deed of compromise. In their protesting view, the appellants contended that, what was submitted by the respondent's counsel did not reflect what was agreed in the lawful executed and filed deed of compromise 3 of the suit. Thus, the counsel for respondent had misled the chairman of the tribunal, who then erroneously raised an unsubstantiated assumption that, there would be chaos as the applicants would not sign the consent judgment and the chairman proceeded to expunge the deed of compromise of the suit from the record while the respondent had already signed it and the same being filed. The appellants, therefore argued that, in terms of Regulation 18 (1) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, G.N No. 174 of 2003, it provides that: "18 (1) where parties at any stage of proceedings have agreed to settle the matter before the tribunal the chairman may enter the consent judgment or order upon such terms as may be agreed by particular," The appellants went on to argue that, the chairman had a duty to certify and mark the deed of compromise settled, consequentially, the respondent to be paid the sum of 5,000,000/- within three days after the matter pending hearing in the tribunal is marked withdrawn. They cemented that under regulation 18 (1) (supra), the chairman has been vested with 4 power to enter consent judgment or order upon such terms as may be agreed by particular. Therefore, to the appellants' view the chairman had erroneously acted on unproven assumption of chaos and in excess of his powers by expunging the deed of compromise of the suit. They further avowed that, the whole provision of section 18 of the Land Dispute Courts (the District Land and Housing Tribunal) Regulations G.N No. 174 of 2003, does not give power to the chairman of the tribunal to expunge deed of settlement from the record. Contesting further, the appellants stated that, be it as it may, even if the chairman wishes not to enter consent judgment or order upon such terms as may be agreed by particular, or certify the same, but he was not supposed to expunge the deed of settlement from the records. That, the same had already formed part of the records and by expunging it, it will tantamount to erasing pleadings or records of the tribunal which were brought to the tribunal judicially without any irregularity or illegality. Additionally, the appellants argued that, what normally expunged from the records are exhibits or pleading which were either taken illegally or its admissibility is questioned. However, that is contrary to what happened in 5 the case at hand where the deed of compromise of the suit was judicially lodged in the tribunal. Therefore, the applicants submitted that, the trial chairman wrongly expunged the said deed of compromise of the suit based on misconceived facts raised by the respondent herein in the tribunal. In conclusion, the appellants continued to submit that, apart from being erroneously expunged, even the respondent herein was estopped from denying the facts/terms from the executed and filed deed of compromise of the suit. He added that, for so doing, he contravenes the provision of section 123 of the evidence Act, [Cap. 6 R. E 2019] which provides: "When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he or his representative shall be allowed in any suit or proceeding between himselfand such person or his representative, to deny the truth of that thing." Henceforth, the appellants argued that, what was done by the counsel for respondent is a definition of an abuse of the court process, and, or misleading the tribunal instead of rendering assistance for the gains and 6 interest of justice. With that submission, the appellants requested this court to allow the appeal with costs. Replying to what was submitted, the respondent's advocate argued that, the impugned order made by the tribunal in the land application No. 106 of 2021 which was delivered on 9th day of November, 2023 was a preliminary and interlocutory order and that order is not appealable. In furtherance, he also argued that, an interlocutory order under Halsbury's Laws of England, 4th Edition, Vol. 26 para 506 is defined to mean: "An order which does not deal with the final right of the parties and gives no final decision on the matter in dispute, but, it merely on a matter ofprocedure" He similarly cited the case of University of Dar es Salaam v. Silvester Cyprian & 210 others (1998) TLR. 175 to cement the argument that, an interlocutory order does not decide right of the parties but they are made for the purpose of keeping things in status quo until the disputed right is finally decided. He further called up the provision of section 74 (2) of the Civil Procedure Code, [Cap. 33 R.E 2019] which provide that no appeal shall be 7 against or be made in respect of any preliminary or interlocutory decision or order of the District Court, Resident Magistrate Court or any other Tribunal, unless such decision or order has effect of finally determining the suit. Concluding this point, the respondent contended that, this appeal base on an order which did not decide the case in its finality, and, it has been illegally brought from the order which is not appealable. Moving to the other point where the appellants argued about illegality of the order made by tribunal to expunge from the record the deed of settlement. On this point, the respondent's argued that, parties agreed that 3rd appellant will compensate the respondent Tshs. 5,000,000/- as additional purchase price of the suit premises and the same to be paid within three days after the matter pending in the tribunal is marked withdrawn. In furtherance, the respondent stated that on 9th day of November, the counsel for the respondent herein misled the tribunal that the 3rd appellant did not comply with the said deed of settlement. 8 That was what the parties have submitted in their submissions. Coming on 29th August, 2023 when the parties were invited by the court to address the anomaly observed by the court suo motu, they had this to say: To begin with, Mr. Emmanuel Bwile, the advocate for the 3rd appellant submitted that as for the issue which was raised by the court, is that the settlement deed was filed in the court by the parties, and after that the tribunal issued a bill which was paid and stamped by tribunal to indicate that it was received by tribunal. He submitted further that on 04th October, 2022 parties addressed the tribunal through advocate Lucas Komba who was an advocate for the applicants and he held a brief for the other advocates with leave to proceed. And that, on that date Mr. Komba informed the tribunal that parties have settled their dispute and the same was already filed and therefore, he prayed for the consent order. Mr. Bwile stressed that, to acknowledge what was submitted by Advocate Kombe, the tribunal ordered to deliver the consent order on 2nd November, 2022. Adding to that, advocate Bwile stated that on 09th November, 2022, which on record mistakenly recorded as 2023 (typing error) thus, on that 9 date the respondent dispatched a letter to the tribunal to ask for withdrawal of the settlement deed. And that, the letter was argued by the parties as whether it was proper or not. However, at the end this disputed decision was reached. Moreover, he submitted that basically, the compromise deed was received by the tribunal. And he further argued that, even if the tribunal failed to endorse the same, but it has not effected an intention of the parties to settle their matters since all the parties were involved to draft and submit the same to the court. In conclusion, he stated that it is his submission that the settlement deed had formed a part of the records of tribunal. However, he averred, if the court find that settlement deed was not received properly, the remedy is to remit the file to be tried by another chairman from where the deed of compromise was submitted to the tribunal. On his part, Mr. Francis Steven, an advocate for the 1st and 2nd appellants, in the first hand, he concurred with what was submitted by learned advocate for the 3rd appellant. Then, he added that, apart from the fact that the settlement deed was submitted, the court proceeded to 10 expunge the same. That undertaking shows that, the tribunal and the parties had acknowledge that, the compromise deed had formed the part of the record. Mr. Steven narrated more that, as Mr. Bwile has prayed to remit the file to the tribunal, he also prayed that the court should give direction to the tribunal for the other chairman to endorse the agreement which were concluded by the parties in their free will. He also contended that the court should see the free will of the parties to settle the matter amicably. Finally, he clinched that, if at all, the court will see that the tribunal had errored, then this should not be seen as a punishment to the parties. And here comes Mr. Ayoub Sidai, learned advocate for the respondent, on his part he submitted in contention to what his rival advocates presented. He pressed that, the irregularity raised by the court as to whether the settlement deed was properly admitted and endorsed by the tribunal, in his view, the same was not admitted and endorsed. Adding to that he stated, on 04th November, 2022 there was no order of the tribunal showing that the deed of compromise was admitted and endorsed to be part of the record. Thus, because of that omission the record 11 of tribunal does not show that the deed of compromise was admitted to form part of proceedings. Therefore, an order of the tribunal of 9th November, 2022 was delivered for something which was not inexistence. Thus, the fact that there was an agreement does not make the record of the tribunal, since the record of the tribunal is made by the court itself. To that end, he submitted, since there is such omission, then, it is obvious that there is an irregularity and the remedy for that is to direct the tribunal to admit and endorse the deed of compromise and then to proceed with the hearing of objection raised by the respondent. At the end, he argued that since this was a minor error, the case should not be remitted and proceed with hearing before another chairman, hence the correction can be made by the same chairman. Analyzing the contested arguments, beforehand, I find it essential to attend the issue raised by the court first, since by its own, if proved to be dismayed, it will dispose of the appeal. It should be noted have that the phrase deed of compromise and settlement deed are used in the ruling interchangeably. Then, moving forward, I first asked myself, as to whether the contested deed of compromise of the suit was at all tendered, to the 12 tribunal by the parties. And also, whether the same was admitted and endorsed by tribunal to form part of the record of proceedings. In my view, to be considered by the court or tribunal as the case may be, the deed of compromise of the suit must have been first, tendered by the party, then be admitted and endorsed by tribunal to form part of the records. And thereafter, the tribunal will be at liberty to deliver a consent judgment upon the condition sought in the deed of compromise. That said, I am in disagreement with what was transpired by advocate Bwile when he tried to persuade the court thus, by filing the document (say it a deed of compromise) in the tribunal's registry, if would be enough to form part of the record of proceedings. Going through the record of proceedings, there is nowhere the tribunal had admitted the said deed of compromise of the suit. That is to say, the deed of compromise of the suit was never made a part of the record. That means, in my opinion, regulation 18 (1) of the Land Dispute Courts (the District Land and Housing Tribunal) Regulations, G.N No. 174 of 2003, (supra) does not give mandate to the chairman to make any order out of proceedings. Looking on the wording it provides: 13 "18 (1) where parties at any stage of proceedings have agreed to settle the matter before the tribunal the chairman may enter the consent judgment or order upon such terms as may be agreed by particular," Thus, on my humbly view, the phrase " at any stage ofproceeding' is intended to mean that, whatever need to be decided during adjudication of the matter, should be born out from the proceedings. Thus, from the dictum, it was never intended to cover issues outside the realm of the chairman's authority. It is undisputed that, looking at page 6 of the typed proceedings, and so to the original version, it is apparent that the applicant's advocate, Mr. Lucas Komba had addressed the tribunal thus: " Hfe have agreed to settle the matter and we have filed the deed of settlement and we pray for the consent order". After that the tribunal adjourned the matter for the consent order to be delivered on the coming sessions. But, in my considered view, it cannot be held with certainty that, by his submission, advocate Komba had prayed 14 to tender the deed of compromise rather than, notifying the same that it is in the registry. Similarly, it cannot be said that, by its order, given on 4th day of October, 2022 thus, the tribunal had admitted and endorsed the said deed of compromise. For clarity, the business of the day was as such; I will quote with verbiage, after Coram: Lucas komba advocate. "We have agreed to settle the matter and we have filed the deed of settlement and we pray for the consent order." Order: "Consent order on 02.11.2022." From there, the matter was fixed for consent order, and on 9th day of November, 2022 when it became due, the applicant's counsel Mr. Mganga Paul (as he then was) raised the alarm to protest for execution of the consent order, and thus he prayed for the deed of compromise to be expunged from the record and the matter to proceed on merit. 15 Thus, although his prayer was objected by the adverse counsel, the tribunal proceeded to grant the prayer fronted by the respondent's counsel and ordered that the deed of compromise be expunged from the record. But, as I have observed above, the said deed of compromise of the suit was not admitted by the tribunal to form part of record. Fortunately, although with some reservation, all counsels seems to acknowled the absence of the deed of compromise in the record of proceedings. Notably, I am alive that the deed of compromise appears to be attached in the case file, but all the same, its visibility make no effect to the record. In the circumstance, the position of the law is clear on this endeavor thus, a mere attachment of the document (s) in the case file does not make it part of proceedings. See Chantal Tito Mziray & Another v. Ritha John Makala & Another, Civil Appeal No. 59 of 2018; and Shemsa Khalifa & Two Other v. Suleiman Hamed Abdallah, Civil Appeal No. 82 of 2012 (all unreported), when the court was addressing the issue similar to the one at hand, it had this to say: 'We out-right of a considered opinion that, it was improper and substantial error for the high court and all 16 other court bellow to have relied on a document which was neither tendered nor admitted in the court as exhibit. We hold this led to a grave injustice." At this juncture, the question will be raised as to how possible the chairman was able to expunge the deed of compromise of the suit which was not part of the record. To be expunged, in my view, the document, exhibits or extracts should first be part of the record. By drawing inspiration from the above authority, it is apparent to me that, a mere declaration of possession of document or trivial attachment of the same in the case file, without first being tendered and admitted to the tribunal to form part of the record will not salvage the parties from legal scuffle. In the upshot, it cannot gainsay that there was no deed of compromise of the suit admitted by the tribunal. That being the case, it was incorrect for the chairman to make any order for the matter which is not part of proceedings. To be effective, a deed of compromise of the suit should have been admitted first to be part of proceedings before the order to expunge it from the record was made. 17 Now, as the matter stand, the disputed issue (that is deed of compromise) was not part of the proceedings thus, the same has no effect to this appeal. That said, I see no precious need to navigate parties' submissions. I am sure, at this stage, it will be for no one's advantage rather than a time wasting. In the circumstance, I invoke revisionary powers bestowed to me in terms of section 43 (1) (b) of the Land Dispute Court Act, Cap. 216 R.E 2019 to revise the proceedings. On that, I nullify the proceedings of the DLHT from 4th October, 2022 onwards. I also quash and set aside all orders resulted thence. And finally, I make an order to remit the file to the trial tribunal to proceed with hearing from when it ended before 4th October, 2022. No order as for the costs. It is ordered. DATED at DODOMA this 29th day of September, 2023 JUDGE 18