LAND APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA LAND APPEAL NO. 203 OF 2022 {Arising out of Land Application No. 181 of2021 before the District Land & Housing Tribunal for Arusha at Arusha) FREDRICK ONESMO MOLLEL (as Administrator of the Estate of late Onesmo Lengina Mollel) APPELLANT VERSUS ROSE ONESMO----------------------------------------------- jst RESPONDENT EMMANUEL KAMUNGA 2nd RESPONDENT ROSE STEPHANO MSUYA 3RD RESPONDENT JUDGMENT 19/06/2024/ & 06/09/2024 BADE, J. The matter at hand commenced at District Land and Housing Tribunal for Arusha (herein referred as "the tribunal"). The brief back ground leading to this Appeal from the record of the file is that, the Appellant and 1st Respondent are closely related as in a son and a mother. It is also on the record that, the Appellant and the 1st Respondent were appointed as Administrator and Administratrix respectively of the estate of late Onesmo Lengina Mollel on different Page 1 of 11 occasions. The Appellant sued the Respondents before the tribunal, claiming the 1st Respondent who was Administratrix of the estate of his late father left without distributing the land belonging to their father measured 3 acres, and as a matter of fact she sold it to the other Respondents. After hearing the evidence of both sides, the trial tribunal held the evidence adduced proved that the disputed land is not part of the estate of deceased and that the deceased had already sold the disputed land before his death. The Appellant was aggrieved by the said decision, hence lodged the instant Appeal through his legal representative on the grounds that: i. The trial tribunal erred in law as the chairperson of the tribunal failed to append his signature after the witness had taken oath and recording witness testimony. ii. The trial tribunal erred in law and in fact for failing to provide necessary orders after the 2nd Respondent failure to provide his defence hearing as the defence case was closed without the 2nd Respondent defence being heard. Page 2 of 11 iii. The trial tribunal erred in law and in fact for failure to analyze evidence on record hence reached an erroneous and unfair decision, and iv. The trial tribunal erred in law by answering the second issue that the late Onesmo Lengina was the one who sold the disputed land without enough evidence while disregarding the Appellant's evidence. This Appeal was disposed of by way of written submissions, with the Appellant represented by Mr. Kennedy Mapima, a learned advocate while the 1st and 2nd Respondents were represented by Mr. Duncan Joel Oola, also a learned advocate. With regard to the 1st ground, Mr. Mapima submitted that the omission to append signatures after the witness has taken an oath and after recording the evidence is fatal as the original proceedings in both handwritten and typed proceedings reveal that no signatures of the trial chairman were appended after oath and after the testimony of the witness. In his view, this vitiates the proceedings as it results in the proceedings and the testimony not being authentic. To support his position, he cited the case of Chacha s/o Ghat @ Magige vs Republic, Criminal Appeal No. 406 of 2017. He also referred this Page 3 of 11 court on pages 7 and 8 of the trial tribunal proceedings where the chairman did not append his signature after taking the evidence of the Appellant and on page 11 where after receiving the evidence of DW2, he did not sign. Submitting on the 2nd ground, he explained that it was erroneous for the trial tribunal to issue an order for closure of the case without first giving the 2nd Respondent a chance to provide his defence. In his view, this is not dissimilar to violating his right to be heard. To buttress his position, he cited the case of Said Mohamed Said vs Muhsin Amiri and another, Civil Appeal No. 110 of 2020. Mr. Mapima insisted that it is a mandatory requirement of the law that the 2nd Respondent is heard. That there was no reason advanced on the record to deny the 2nd Respondent his right to defend the matter against him. In his opinion, this is fatal and makes the judgment a nullity. To cement his position, he cited the case of David Mushi vs Abdallah Msham Kitwanga, Civil Appeal No. 286. He insisted that the parties' rights to be heard is paramount in any adjudication system unless a party themselves wave such right. With regard to grounds 3 and 4, Mr. Mapima submitted the trial tribunal did not analyze the Appellant's evidence. As per the record, Page 4 of 11 the Appellant produced evidence that was enough for the tribunal to deliver a judgment in his favor, but to his surprise, the case was dismissed with costs. He argues that if the trial tribunal had carefully scrutinized the evidence, it would have noted that the 1st and 2nd Respondents were not present so the requirement of Regulation 12 (1) of the GN No. 174 of 2003 could not have come into play, and no way the Chairman of the tribunal could read over the complaints to them as they were absent. In his view, this made the trial tribunal's judgment unfair as it contravenes the law as they were required to respond orally to the contents of the Application. Opposing the Appeal, on the argument that the chairperson of the tribunal failed to append his signature after receiving the evidence Mr. Oola submitted that the chairman of the tribunal did append his signature, referring to this court on pages 7, 8, and 10 of the proceedings. Mr. Oola further argues that cases cited by the Appellant's counsel are distinguishable from the circumstances of this case because in the cited case, the trial judge did not sign at all after having recorded the evidence. In further argument, he maintains that the advocate for the Appellant did not cite any provision in the Civil Page 5 of 11 statute that vitiates the proceedings of the trial tribunal on the omission of one or two signatures in the proceedings. Arguing the 2nd ground of appeal on the allegation that the 2nd Defendant was not given the right to defend his case, Mr. Oola submitted that since the 2nd defendant filed his written statement of defence, he successfully defended himself contrary to what the Appellant claims, adding that in any case, the Appellant's counsel is not a legal representative of the 2nd Respondent, and he thus lacks the locus standi to claim on his behalf. In his view, his right to be heard was availed when he filed his Written Statement of Defence, and he opted not to tender his oral testimony which he was not compelled by any law, and neither did he appeal or complain in any manner. On grounds 3 and 4, which were argued jointly, Mr. Oola submitted that the Appellant did not prove his case on the balance of probabilities as required under section 110 of the Evidence Act, and the Appellant's counsel failed to expound on which exact evidence was not analyzed properly. In his view, the Appellant proved his claim compared with the 1st Respondent, who proved his claim contrary to the principle that he who alleges must prove. To support his position, Page 6 of 11 he cited the case of Paulina Samson Ndawavya vs Theresia Thomas Madaha, Civil Appeal No. 45 of 2017. Moreover, Counsel Mr. Oola argues that the absence of the Respondents during the trial does not affect the requirement of regulation 12 (1) of the GN No. 174 of 2003 as the provision of regulation 13 allows the representation by an advocate or any representative, and at the hearing the Respondents were duly represented by an advocate who was present at the commencement of the hearing. Having considered the submission by the parties and the record on the file, the issue calling for determination before me is whether this appeal has merits. In answering this issue, I will address the grounds of Appeal as canvassed by the Appellant's counsel. Arguing for the first ground, counsel for the Appellant alleges that the chairman of the tribunal did not append his signature after the witness took oath and adduced their evidence. I had to dig into the original handwritten proceedings of the trial tribunal, and it is my finding that without a doubt, the chairman of the tribunal did append his signature at the end of the evidence of each witness. Hence, this argument lacks merit. Page 7 of 11 On the allegation that the trial tribunal closed the hearing of the case without affording a chance to hear the defence of the 2nd Respondent. It is on the record that the 2nd Respondent was represented by a legal counsel, Mr. Duncan Oola. It is also on record that after hearing the 1st Respondent and her witness, Mr. Oola prayed to close their case, see page 11 of the typed proceedings. As long as the 2nd Respondent was represented and he opted to appear through an advocate who appeared on his behalf and prayed to close the case; the tribunal cannot be faulted by granting the prayer. More to say as correctly submitted by the Respondents' counsel, no law compels a party who has a notice of the proceeding and chooses not to respond or appear in court, especially when he/she had an advocate who appeared on their behalf. Neither can they be compelled to testify and the decision on whether or not to exercise this substantial legal right belongs to the defendant. I certainly find no merit on this ground. Concerning grounds 3 and 4 alleging that the Appellant's evidence was not considered by the tribunal, I have gone through the judgment of the tribunal, and found on page 4, paragraph 1 that the Page 8 of 11 the memorandum of appeal. It is trite law that the parties to a suit are bound by their pleadings. See the case of Astepro Investment Co. LTD vs Jawinga Company Limited, Civil Appeal No 8 of 2015 where the Court of Appeal sitting in Dar es Salaam (unreported) held: ".... the proceedings in a civil suit and the decision thereof, has to come from what has been pleaded, and so goes the parlance parties are bound by their own pleadings." The Appellants counsel in the present case should not have submitted on a ground that was not previously included in the memorandum of Appeal unless the same was contained in the pleadings or supplemented at a later stage. However, for the reason that the counsel for the Respondent had a chance to respond to it, and he did so, I will elaborate on the raised issue. Going through the proceedings of the trial tribunal it becomes obvious that the argument raised by the counsel for the Appellant has no basis factual or legal. In any case, the factual issues are decided on the evidence admitted during the trial, while the procedural ones can be discerned in the recorded proceedings. It is true that on the date of commencement of the suit on 18/10/2022 the 1st and 2nd Appellants were absent, but their advocate was present and the Page 10 of 11 chairman of the tribunal rejected the Appellant's complaint on the reason that it lacked weight, finding his complaint baseless. In all fairness, I find no fault in his reasoning, and I concur with the tribunal Chairman's finding on the reason that in his evidence, apart, from adducing a bare claim that the disputed land was sold after the death of his father, the Appellant did not produce any evidence to substantiate this fact, contrary to the 1st Respondent, who brought a witness that is the Appellant's sister, who testified that the disputed land was sold by their father before his death. As he concludes his submission, Counsel Mr. Mapima argues that the trial tribunal violated the requirements of Regulation 12 (1) of G.N No. 174 of 2003 by proceeding with the hearing in the absence of the Respondents as the said regulation required that at the commencement of the hearing, the tribunal should read and explain the contents of the Application to the Respondent, and after which, it should require the Respondent to either admit the claim or part of the claim or deny it. Before I embark on determining this issue, I first wish to make it clear that I have noticed that this is a new ground which was raised during submission. It is definitely not a ground that was pleaded in Page 9 of 11 tribunal recorded that Regulation 12 (1) (2) of the G.N NO. 174 of 2003 has been complied with. He also indicated that the Respondent denied the claims against them and proceeded with the hearing. So, the argument advanced by counsel Mr. Mapima that the tribunal violated the said regulation is wild throw and lacks merit. Having said so, I dismiss this appeal with costs for want of merits. It is so ordered. DATED at ARUSHA this 06th day of September 2024 A. Z. Bade Judge 06/09/2024 Judgment is delivered in the presence of the Appellant and the Respondent / their Representative in chambers on the 06th day of September 2024. A. Z. BADE JUDGE 06/09/2024 Page 11 of 11