francis wandiba vs godluck rwiza 2018 tzhclandd 490 21 august 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 202 OF 2017 (From the Decision of the District Land and Housing Tribunal of Kinondoni in Land Application No. 69 of 2016) FRANCIS WANDIBA....................................... APPELLANT VERSUS GODLUCK RWIZA........................................ RESPONDENT Date o f Last Order: 31/05/2018 Date ofJudgment: 21/08/2018 JUDGMENT MGONYA, J This is an appeal against the decision of the District Land and Housing Tribunal of Kinondoni at Mwananyamala in Land Application No. 69 of 2016 dated 28th day of September, 2017. The District Land and Housing Tribunal dismissed the Application for not advancing sufficient cause for setting aside the Exparte judgment. Aggrieved by the said decision, the Appellant appealed to this Hon. Court on five grounds of appeal to wit; 1. That the honorable Tribunal grossly erred both in law and fact to satisfy that the Appellant refused summons without proof o f Affidavit of service of summons. 2. That the honorable Tribunal grossly erred both in law and fact by failure to satisfy itself that a copy of the summons was left at the premise o f the Appellant. 3. That the honorable Tribunal grossly erred both in law and fact by relying on the merit o f the Main land Application No. 69/2013 to determine application for setting aside Exparte judgment and decree. 4. That the honorable Tribunal grossly erred both in law and fact by the satisfaction that the appellant refused summons in the presence of the local Leader without either oral or written evidence from the said local leader. 5. That the honorable Tribunal grossly erred both in law and fact to satisfy that the tribunal officers served summons to the Appellant without hearing them as witnesses. The Appellant prayed to this Court on the following Orders:- a)That, the proceedings, findings, ruling and decree in Misc. Application No. 69 of 2016 be quashed and/ or set aside. b)That this Hon. Court be pleased to set aside the Exparte judgment and Decree in Application No. 69/2013 at the District Land and Housing Tribunal for Kinondoni and order Inter parte hearing. c) That the Respondent be ordered to pay costs of this Appeal. d)Any relief this hon. Court deems fit jus to grant. In order to appreciate the gist of this Appeal a brief background is important. The Respondent herein purchased the suit land from one Joseph Mwesigwa Nyamwihura who purchased the same from the previous owner one Fatuma Sultan, for a consideration of Tshs 1,300,000/= which was paid on 27/05/2011. Annexed a copy of the Sale Agreement marked GR1. Sometimes in 2013 the Appellant raised/construct a fence in the Respondent premise despite of several warning but the Appellant resisted and continued with the construction. It is from that misunderstanding that the Respondent decided to institute an Application No. 69 of 2013 at the District Land and Housing Tribunal of Kinondoni at Mwananyamala which entered Exparte judgment in favour of the Respondent for refusal of summons on the part of the Appellant. Hence this Appeal. The Appeal was argued by way of written submissions since both parties representing themselves. Having considered the rival submissions of both parties in respect of this Appeal, having also gone through the entire record of this case, I will now determine the merits or otherwise of this Appeal. The 1st, 2nd, 3rd, 4th and 5th grounds of Appeal bares similarities, basically based on the lack of proof that the Appellant avoided the service of summons. I will therefore combine and argue them together. The Appellant on one hand stated that he came to know the case during the execution of the Application no. 60 of 2013 and that he neither refused summons nor his wife restrained him to sign the summons The evidence on record reveals that the Appellant was served summons but refused services as per the deponed Affidavit of the process seven which was supplied to the Court. The record further revealed that, the Appellant was served for not less than three times and yet he refused the same. It was evidenced that Appellate was served the summons on 25/02/2013 by the Respondent and the same was refused as evidenced by the deponed Affidavit that: "Mdaiwa alichukua wito akasoma aliyefika kusaini mke wake akamzuia kusaini akasema mpaka mjumhe awepo tukamchukua mjumbe akakataa tena kupokea." Another summons was served on 04/04/2013 in which the Appellant avoiding service as per the Affidavit sworn by Simon Lutaw who stated that "Wito huu haujapokelewa amekataa kupokea pia katoa vitisho pamoja na lugha mbaya ya matusi" and also on 06/08/2015 the Appellant has been served through Court processer one Christopher Mandia who stated that "Mimi Christopher Mandia Court Broker. "Nathibitisha kuwa Kesi No. 179/2015. Mjibu maombi amekataa kupokea wito kwa kusema kuwa hatambui wito wowote kutoka kwa Mwombaji katika Shauri hi// isipokuwa anatambua wito kutoka kwa mjumbe wake wa mtaa, ambae inasemekana ni mtu wake wa karibu". Further to that, the evidence on 10/8/2017 of the lower Tribunal reveals that when the Tribunal went for visit on the suit premise, the Appellant was present and he never took any action, as he claimed that as the Chairman and Mjumbe of Serikali ya Mtaa were the friends to the Respondent herein. From all the evidence tendered on trial Tribunal there is no flicker of doubt and it is appeared to my satisfaction that, there are sufficient evidence that the Appellant was served with summons but refused. Moreover, it appears that the Appellant is trying to shift the burden of proof to the Respondent and the Tribunal by forgetting that he is the one who refused the summons before the Trial Tribunal. Having said that, it is my findings that all the five grounds of appeal are devoid of merits. The appeal is hereby dismissed with costs. Right of Appeal Explained. L. E. MGONYA JUDGE 21/ 08/2018 COURT: Judgment delivered in the presence of Appellant, and in absence of Respondent and Ms. Monica in my chamber today 21st August, 2018. /J L. E. MGOtfYA JUDGE 21/ 08/2018