20181130 TZHC Mwanza2

I ,1 IN THE HIGH COURT Of TANZANIA AT MWANZA ·. 1 'i:,--;j¥:,'1 LAND APPEAL NO.19 OF 2017 (Arising from Application No. 231/2012, in the District Land and Housing Tribunal of Mwanza at Mwanza) FE LISTI NA JOSEPH MASUA ..... I ••• I I I I . . . . . . . . . . . . . . . . . . . . . I . . . . . . • APPELLANT VERSUS 1. MWANZA CITY COUNCIL } 2. JOSEPH M. MAGUCHI 3. ELISHA JOSIA ....................... RESPONDENTS 4. YOHANA SIMON SUKI JUDGMENT 27/09/2018 & 30/11/2018 Gwae, J The appellant is appealing against an order. of District Land and Housing Tribunal for Mwanza at Mwanza ("DLHT'') before (Hon. Masao-Esq) dated 6th day of February 2018 which dismissed th~ appellant's Land application No.231 of 2012 for want of prosecution with costs. Aggrieved by the dismissal order, the appellant is now before this court challenging the order by way of an appeal. In his Memorandum of Appeal, the appellant listed three grounds of appeal, to wit; 1 I' i' Ii \\ . ,, r, 1. That, the trial tribunal Chairperson erred in law and fact for entering the order of dismissal of the appellant's application without cogent reasons 2. That, the trial Chairperson further erred in law and fact for dismissing the Application for want of prosecution while on the material date the counsel for the appellant was present and addressed the tribunal on the reason for the applicant's absence 3. That, That, the trial Chairperson further erred in law and fact ·. · for failure to observe that material date, the quorum was not proper for the 1st and 3rd respondent were absent and .there was n order to proceed ex-parte against them When the appeal was called on for hearing before me, the appellant had representation of Ms. Neema Bilai, the learned advocate while 3rd and 4th respondent appeared in person, unrepresented and the 1st and 2nd respondent were absent. Praying for orders allowing this appeal and for restoration of the appellant's application, the learned counsel fqr the appellant reiterated the grounds of· appeal and verbally added that since the appellant had not abandoned his case for 3 months consecutively, the trial tribunal was not justified in ~ i making a dismissal order. 2 - _ Both the 3rd and 4th respondent strongly supported the order of dismissal •'l 1 entered by the trial tribunal by stating that the same was properly entered due to the appellant's non-appearance. On examining the trial tribunal record, I have noted that the applicant's application had been pending before the DLHT since 18/09/2012 however the same was usually placed before Hon. Lung'wecha on 6th February 2015 for the first time but the dispute was never tried till 6th February 2018 when the same was placed before Hon. Masao who dismissed appellant's application for want of prosecution in terms of Regulation 15 (a) of the Land Disputes Courts (The District. Land and Housing Tribunal) Regulations of 2003, GN. 174 of 2003. The regulation invoked by the learned chairperson reads and I reproduce it as herein under: "15 The Tribunal may, where the application is left unattended by an applicant for a period of three months:- a. Dismiss the application for want of prosecution. b. Where part of the fact or claim are admitted, make such orders as may be applicable in respect of the admitted facts or claim Looking at the unambiguous words of the Regulation cited above, it is quite clear that the tribunal would have been justified to dismiss the matter~· 3 ' for want of prosecution under, R. 15 (a) of the Regulation only if the r , applicant would have not attended his case for three months consecutively as correctly submitted by the appellant's counsel. More so the appellant's advocate, Mr. Venas Kibulika who had been representing the appellant before ~he trial tribunal was lucidly present as rightly contented by the appellant's counsel (Miss Neema) on the dismissal date moreover Mr. Kiburi~a entered appearance on 19/4/2017, 13/6/2017, 19/7/2017, 20/9/2017, 29/11/2017 and on the material date consecutively, hence the applicant's appearance was made by his advocate and above all the last two tribunal's consecutive sessions (20/09/2017 and 29/11/2017), the appellant's was present as well and the issue of sickness on the part of the appellant's mother was equally furnished by Mr. Venace Kiburika, the then appellant's advocate. · · Furthermore it is glaringly clear that on th,e date of dismissal in question, the 1st and 3rd respondent, were not present, who could not be addressed in terms of R. 12 of the Regulations, 2.003 except the 2nd and 4th I ' respondent who however did not vividly obj~ct a prayer of adjournment~: advanced by the appellant's advocate. ', · 4 l C ! I The record further reveals that the appellant and or his advocate never ,) · defaulted appearance since 4th May 2015 to the date of dismissal except on the 1th day of October 2015. It is trite law that appearance in court in civil cases may be made by parties to the cases or their advocates or agents (representatives). I am alive of the procedure provided under Regulation 15 (a) of the Regulations, 2003 and Order ix Rule 12, that when a party is required to appear and fails to appear without sufficient cause a tribunal or court may dismiss the matter for non-appearance. I am not also unsound of the provision of law which permits a court to strike out a case for want of prosecution in the event such case has been pending in court for more than three (3) years where no application is made or steps taken for a period of three years by either party with a view to proceeding of the case (see Order xvii Rule 5 of the Civil Procedure Code (Cap 33 R. E, 2002). Since representation of the parties in the District Land and Housing Tribunal by advocates is allowed by virtue of Regulation 14 of the . Regulation governing the DLHT, I think it was not proper for the learned~• 5 :1, l . ,. tribunal chairperson to refuse further adjournment to enable the appellant prosecute his case and the 1st and 3rd respondent to make their defence unless there was no good cause established thereof which is not the case here. Nevertheless in our case, the reasons for the sought adjournment were, to my formed opinion, sufficiently given to the effect that the applicant was ' absent on the material date as he was at Muhimbili Medical Centre attending her sick mother and the fact 'that the 2nd and 4th respondent did ( J · not object the postponement prayer. ·' For these reasons; that, the appellant's advocate was present on the material date, that, the appellant used to regularly attend tribunal's sessions, that . the reason for appellant's absence on the date the application was dismissed was not contested and not objection that was f preferred by the opponent side. Consequently; I firmly hold that the learned tribunal chairperson was wrong in dismissing the appellant's application for want of prosecution. The Application No. 231 of 2012 filed by the appellant before District Land and Housing Tribunal for Mwanza at Mwanza is therefore restored and the ~ 6 I. . same be presided over by a different tribunal chairperson sitting with a different set of assessors. As evidently observed that the purported error was not on the respondents' side, I shall make no order as to costs. 7