GEORGE LUGEREKA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISRTY) AT BUKOBA LAND APPEAL NO. 51 OF 2023 (Arising from Land Application No. 15 of 2020 District Land and Housing Tribunal for Muleba) GEORGE LUGEREKA (Administrator of the estate of the late ANGELINA LUKWEMBE LUGEREKA @ ANGELINA KOKUBANZA).............................................................. APPELLANT VERSUS LADSLAUS M. PANGANI (Administrator of the Estate of the late BENEDICTO LUKWEMBE LWEYA @ BENEDICTO LUKWEMBE..............................................................................1stRESPONDENT SALON PANGANI @ SALON PANGANI........................................................ 2ndRESPONDENT ADROF MEYEMELE....................................................................................... 3rdRESPONDENT GRACE BENEDICTO.......................................................................................4™RESPONDENT SADOTH PANGANI........................................................................................ 5thRESPONDENT SALVATORY SADOTH.................................................................................... 6thRESPONDENT DENIS THEMISTOCRECY..............................................................................7thRESPONDENT ABAS JAFFARY.............................................................................................. 8thRESPONDENT 1 ABEDI JAFFARY.................................................................... 9th RESPONDENT JUDGMENT 10/10/2024 & 06/11/ 2024 KIWONDE, J. The appellant, George Lugereka and administrator of the estate of the late Angelina Lukwembe Lugereka @ Angelina Kokubanza, being aggrieved by the decision of the trial tribunal, has appealed to this court raising five (5) grounds of appeal namely: 1. That the trial tribunal grossly erred in law by failing to evaluate the evidence properly that led to arriving at a wrong decision. 2. That the trial tribunal grossly erred in law and in fact by awarding general damages to the 3rd respondent to the tune of TZS 5, 000, 000/= which were not pleaded nor in the evidence on records. 3. That the trial tribunal judgment is problematic as it failed to resolve the matter before it and dwelt in entertaining irrelevant matters. 4. That the trial tribunal was not well constituted as there was change of assessors in the course of hearing. 5. That the trial chairman was very biased in entering such decision and the application of his withdrawal from the conduct of the case preferred by the appellant was illegally refused. The appellant prayed this court to quash the judgment of the trial tribunal, the land in dispute be declared the property of the late Angelina 2 Kokubanza @ Angelina Lukwembe Lugereka, cost of this appeal and of the trial tribunal and any other order the court deems fit. The respondents filed replies to the petition of appeal disputing the grounds of appeal. Also, the 1st respondent one Ladslaus M. Pangani, administrator of the estates of the late Benedicto Lukwembe Lweya and Salon Pangani filed a cross-appeal against the appellant in the main appeal, George Lugereka and George Kagaruki based on three (3) grounds to wit; 1. That the trial chairman grossly erred in law and in facts to strike out the counter claim together with the written statement of defence for all respondents in advertence that the advocate had failed to comply with the tribunal order a matter which was functus officio. 2. That the trial chairman grossly erred in law to admit the written statement of defence to counter claim which was out of time and facing preliminary objection and without any sufficient reasons to do so. 3. That the chairman mistreated the appellants in this cross-appeal in favour of the respondents and at the end dismissed their counter claim and denied the appellants to prove their counter claim ex parte. 3 The appellants in this cross-appeal prayed the cross-appeal be allowed with cost, order the original records be remitted to the trial tribunal and the appellants in this cross-appeal be proved (sic) exparte before another chairman, cost of this cross-appeal and the counter claim be paid by the respondents in the cross-appeal. During hearing of the main appeal, Mr. Pereus Mutasingwa, advocate for the appellants abandoned the fourth (4th) ground of appeal and argued the rest. However, the main appeal has not been determined on merits since the matter is decided based on the cross-appeal. In arguing the cross-appeal, Mr. Mathias Rweyemamu, advocate submitted in the first ground of appeal that the trial tribunal erred in law and fact by striking out the counter claim and defence but in the decision, it is not reflected if there was the counter claim. He said this was not an ex parte judgment. The counsel said the proceedings were tainted with irregularities. For instance, on 03/07/2020 the chairman closed the pleadings while he had declared that he was no longer representing the 3rd respondent. He ordered amendment of the pleadings to remove the name of the 3rd respondent, yet he did not vacate the order of 03/07/2020. The tribunal was functus officio. He cited the case of Aristides David Litaka and 4 others Versus Avic Coast Land Development (T) Limited and 5 4 others, Civil Appeal No. 229 of 2021, Court of Appeal of Tanzania at Dar­ es Salaam (unreported) in which it was held that the previous order of the court has to be vacated before proceeding with the matter. The counsel said failure to first vacate the previous order affected the subsequent proceedings. Besides that, the learned counsel said the chairman, after overruling the preliminary objection, struck out even the counter claim. So, the present appellants' substantive rights were not determined while they were pleaded and the respondents did not file defence to the counter claim. He urged this court to nullify all proceedings save the orders of 03/07/2020. In the second ground of appeal, the counsel submitted that the trial chairman erred to admit defence to counter claim which was out of time without any sufficient reasons. The respondents' counsel, Peter Matete was to file defence to counter claim within 21 days under regulation 7 of the District Land and Housing Tribunal (Regulations) 2003 and under O. VII. r. 1 (1)(2)(3)(4) of the Civil Procedure Code, Cap 33 (R. E 2019) which is under section 51 of the Land Disputes Courts Act, Cap 216 (R. E 2019), is applicable. He said the respondents' counsel did not do so, and no leave was sought after expiration of 21 days. 5 Apart from that, the counsel argued that in 2019 the period to file defence to counter claim was rectified. The chairman should not have entertained the application for extension of time since it was filed on 25/06/2021 almost after one year and two months. He said no affidavit was sworn as to why the applicants did not file defence to the counter claim and when the chairman extended time, he had filed notice of preliminary objection which was not yet determined. Therefore, the counsel prayed the court to hold that the counter claim was not disputed, the same be proved ex parte by a different chairman and set of assessors. Regarding the third ground of the cross-appeal, it was submitted that the chairman erred in dismissing the counter claim and mistreated the appellants from proving the counter claim ex parte. When the chairman said the pleadings were complete, the excuses of the counsel, Matete, were excusable while when he (counsel for the appellants in cross-appeal) attended to the Court of Appeal, his reason was not considered despite submission of the cause list. The counsel said the chairman entertained the case in his absence. Also, the counsel argued that the right to be heard is fundamental, he referred to Tanzania National Road Agency (TANROADS) Versus Prismo /Badr JV Partnership between Prismo Universal Italiana S. P. A and Badr East African Enterprises Ltd, Civil Appeal No. 241 6 of 2019, Court of Appeal of Tanzania at Dar-es salaam (unreported). He submitted that they were to be invited to address the tribunal on the order closing the pleadings while there was a counter claim. The remedy is to nullify the proceedings and judgment. In reply, Mr. Pereus Mutasingwa, counsel for the respondents in the cross­ appeal, at first, he opposed it saying the trial chairman was justified to strike the counter claim and defence and ordering the matter to proceed evpa/tefor failure of the appellants to comply with the tribunal orders to amend the pleadings. So, this cannot be entertained. However, the counsel, later on, said the legal issue is that where order of amendment is not complied with, the remedy is not to strike out the pleadings but to proceed with the present pleadings under 0. VI. r 18 of the Civil Procedure Code, Cap 33. He said if the trial tribunal erred to strike the defence, retrial can be ordered. As to the second ground of appeal, he said the written statement of defence to the counter claim was not out of time since the tribunal had allowed filing of the same and the allegations that there was a notice of preliminary objection, it is not reflected in the records. According to him, this lacks merits. Finally, the third ground of appeal on mistreatment, it was argued that the appellants won the case which they did not deserve and the said mistreatment are not reflected in the proceedings. 7 The counsel asked the cross-appeal be dismissed with cost. In rejoinder submissions, Mr. Mathias Rweyemamu, advocate submitted that the order to amend pleadings was from the ruling and the counsel who held brief for him informed the trial tribunal that he was appearing before the Court of Appeal and Mr. James Kabakama was just holding brief. The right to be heard was to be accorded to him to address the tribunal. He struck out written statement of defence and counter claim unjustifiably. The law does not require the pleadings be struck out. On the issue of mistreatment, he said they were not availed right to be heard on the counter claim. From the cross-appeal, trial tribunal records and the oral submissions by the learned counsels, the major issue for determination is whether it has been merited or otherwise. It is obvious and conceded by the counsel for the respondents in cross­ appeal that the proceedings before the trial tribunal are tainted with irregularities. For instance, violation of principle of natural justice of the right to be heard {Audi alteram partend). The appellants in the cross­ appeal were deprived of their right to be heard. This anomaly manifests itself in the trial tribunal's proceedings. On 10/10/2022 the trial tribunal chairman held that failure by the counsel for 8 the present appellants to filed amended written statement of defence by removing the 3rd respondent was tantamount to no defence at all. He ordered the case be heard ex parte and indeed, it proceeded without hearing the then respondents. It should be borne in mind that on the said date the 1st, 2nd, 4th, 5th, 6th and 7th then respondents were present in court and the 1st respondent informed the chairman that their counsel, Mr. Mathias Rweyemamu was appearing before the High Court. The tribunal chairman refused it on reason that there was no proof of the same by not producing a cause list and that the counsel defaulted to file amended defence as ordered. Ultimately, the matter was scheduled and ordered to proceed ex parte. Even if it is not clearly shown on record, technically, the chairman discarded the defence which was filed before the amendment and the counter claim too. In law, where the counsel is alleged to appear before the superior court, the subordinate court or tribunal has to adjourn the matter because the superior court takes precedent. Well, the then respondents had not produced cause list or summons to show that their counsel actually was appearing in the High Court. But they were present. The chairman had to adjourn the matter to have Mr. Mathias Rweyemamu, advocate address the tribunal on the matter. He could produce such summons or cause list if any. Instead, the tribunal chairman 9 penalized the then respondents for the act of their counsel. It was prudent for the chairman to allow the respondents to engage another advocate as a matter of right to legal representation or ask them to proceed on their own. Likewise, on 21st November 2022 when the matter was called on for ex parte proof, it was said by Mr. James Kabakama, advocate that Mr. Mathias Rweyemamu was to appear before the Court of Appeal of Tanzania on 29th November 2022. The chairman said the said counsel had to appear before him on that date. But the then 1st, 2nd, 4th, 5th 6th and 7th respondents were present, yet the matter was heard exparte. In my view, it was the counsel to state that even if the cause list required him to appear in the Court of Appeal on 29th November 2022, he was prevented by good cause. He was not heard on that. As to the failure to amend the pleadings, Mr. Pereus Mutasingwa said the tribunal should not have struck out the defence and counter claim but to proceed with the said pleadings. I concur with him on reason that the chairman was to look if the said failure went to the root of the case. The records indicate that it was just to remove the 3rd respondent for he was no longer represented by Mathias Rweyemamu, advocate. io As I depict from this, the 3rd respondent was wrongly joined in the defence. But the court or tribunal has discretion to strike out the name of the wrongly joined party or order joinder of any party under 0.1, rr 9 and 10 (2) of the Civil Procedure Code, Cap 33 (R. E 2019). The law is settled that the suit cannot be defeated for the reason of misjoinder of no-joinder of the party to the suit. Thus, the tribunal chair had a duty to hear the counsel as to why he did not carry out the amendment to the written statement of defence, and if he could find no reasonable cause, apply his discretion to strike out the name of the 3rd respondent and the matter to proceed inter partes. I concur with the counsel for the appellants in the cross-appeal that the right to be heard is fundamental and it should not be lightly deprived. A party to the suit should not be condemned unheard. The act of the tribunal chairman to reject the defence together with the accompanied counter claim and allowing the application to proceed ex parte, was a serious and fatal irregularity as it deprived the then respondents their right to be heard. Moreover, on 3rd July 2020, the tribunal chairman said the pleadings were complete. This has been taken by Mr. Mathias Rweyemamu that the order closed the filing of pleadings. That the tribunal became functus officiow\\f\ ii regard to filing further pleadings. But this principle applies where the matter has been finally determined. Perhaps, I subscribe to the argument that the chairman had to vacate the previous order before allowing the counsel, Mr. Peter Matete to file defence to the counter claim as stated in Aristides David Litaka and 4 others Versus Avic Coast Land Development (T) Limited and 5 others (supra). Therefore, the proceedings before the trial tribunal were full of twists and turns which led to the then respondents condemned unheard. It is the parties to the case or counsels who have to inform the court or tribunal that they do not intend to further file pleadings and not the tribunal. In this appeal, when the 3rd respondent filed defence, the rest of respondents filed it with counter claim, so, the applicant or his counsel had right to file written statement of defence to the counter claim and then reply thereto. But the tribunal chairman said the pleadings were complete. Later on, he re-opened the pleadings to allow filing of subsequent pleadings. This renders the entire proceedings, decision and subsequent orders a nullity. For the reasons advanced above, I will not revert to determine the main appeal on merits for the trial was a nullity. To that end, the cross-appeal is found with merit and it is hereby allowed. The trial tribunal proceedings from 03/07/2020 which closed the 12 pleadings, to the end of the trial, are hereby nullified. The judgment is quashed and the subsequent orders are set aside. In addition to that, I order retrial of the matter by a different chairman and different set of assessors. Order accordingly. Dated at Bukoba this 6th November 2024. F. H. KI NDE JUDGE 06/11/2024 Court: Judgment is delivered in chamber in the presence of the appellant, the first, second, third, fourth, sixth, seventh respondents and Grace Mutoka (RMA) this 6th November 2024 and the right of further appeal is 13