Grace George Lusinde vs Thaker Singh

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY)

AT DODOMA LAND REVISION NO. 1 OF 2023 (Originating from the proceedings, Order and Records of the District Land and Housing Tribunal for Dodoma in the Land Application No. 172 of2021 dated 22/11/2022) GRACE GEORGE LUSINDE....................................................... APPLICANT

VERSUS THAKER SINGH................................................................... RESPONDENT

RULING Date of last order 2/10/2023 Date of Ruling: 13/12/2023 KHALFAN, J. The applicant filed the instant application by way of chamber summons under section 41 (1) and 43 (l)(b) of the Land Disputes Courts Act [CAP 216 R.E 2019], (hereinafter referred to as the Act) seeking for the following reliefs namely: 1. This Honourable court be pleased to revise the proceedings, order and records of the District Land and Housing Tribunal for Dodoma in Land Application No. 171 of2022 for the purposes of satisfying itself on i the correctness of liberality propriety of the aforesaid Order and records/ruling.

2. Costs to be provided for.

3. Any other orders and relief that this honourable court shall deem fit andjust to grant. The application has been taken at the instance of Ngongi and Co. Advocates and it is supported by an affidavit sworn by the applicant herself. On the other hand, the respondent lodged counter affidavit to contest the application. By parties' consensus, the application was disposed of by way of written submissions in which Mr. Godwin Ngongi, learned advocate, represented the applicant while Mr. Francis Kesenta, learned advocate, represented the respondent. Before dwelling on the merits or otherwise the application at hand, a brief background underlying the instant application could be gathered from the highlighted record. The respondent herein sued the applicant before the District Land and Housing Tribunal for Dodoma at Dodoma (hereinafter referred to as the trial tribunal) claiming for rent arrears at the tune of TZS. 40,000,000/=. The matter was marked settled between the parties herein and the applicant agreed to settle the amount in three instalments from November to January 2023. Nevertheless, the applicant did not fulfil her obligation as agreed in the settlement. This prompted the respondent to file an application for execution before the trial tribunal. After hearing the parties, the trial tribunal granted the application for execution in which it ordered the applicant be evicted

from the suit premises located at Plot No. 5 Block Q Toufique Street Dodoma City. It further ordered that the applicant's properties be attached and sold in public auction to settle the decreed amount. Back to the instant application, in his submission in support of the application, Mr. Ngongi faulted the trial tribunal for entertaining the matter while knowing that the respondent had no locus standi to institute and prosecute Land Application No. 172 of 2021. He argued that the said application was instituted in the name of sole trader known as THAKER SINGH which was owned by one MEHAR VIRDI who had already passed away during the institution of the matter before the trial tribunal. He submitted that, it is settled law in commercial law that sole trade business of the owner dies or dissolves on the business owner's death. He argued that since the business owner is deceased, then automatically, the business name ceased to exist. He added that since the respondent instituted the matter before the trial tribunal using the name of the deceased, then the proceedings, decision and the order issued are a nullity. To buttress his arguments, the learned advocate referred to the decision in the case of Bilali Ally Kinguti v. Ahad Lulela Said 4 others, Civil Appeal No. 500 of 2021 Court of Appeal of Tanzania (unreported) in which the court quoted with approval the decision in the in the

case of Juma A. Zomboko & 42 others v. Coastal and Development Company Limited & 4 others Civil Application No. 576/17 of 2017 (unreported) in which the court observed that: "We are alive with the legal position that a suit instituted in the name of a dead person is a nullity and it is as if no suit was filed... nonetheless, that legal position is applicable where it has been established before the trial court either by oral or documentary evidence, as it was in the cases we cited, that the said person in the suit is dead." 4 The learned advocate for the applicant submitted further that, since the matter before the trial tribunal was instituted using the name of the deceased, then the deed of settlement was executed by a person with no locus standi. He cited the decision in the case of The Registered Trustees of SOS Children's Village Tanzania v. Igenge Charles & 9 Others Civil Application No. 426/08 of 2008 (unreported) in which the court referred to the decision in the case of The Attorney General v. Malawi Congress Party & another Civil Appeal No. 32 of 1996 (unreported). He therefore urged the court to nullify the proceedings, ruling and order of the trial tribunal. On the other ground, the learned advocate faulted the deed of settlement because the attestation in the said deed was defective since it was signed by a person contrary to the law governing attestation

of documents. He argued that the principle governing jurat of attestation in any document must be a party who has knowledge of the facts deponed or who has been dully instructed to do so. He argued further that the deed of settlement was witnessed by the respondent's advocate who was also representing the respondent in the main application. He also contended that the law prohibits an advocate 5 from attesting a document of a client and at the same time, representing that client in courts of law or tribunal. He referred to section 7 of the Notaries Public and Commissioner for Oaths Act [CAP 12 R.E 2019] which prohibits the commissioner for oaths to exercise his/her powers as commissioner for oaths in any proceedings or matters in which he is advocate to any of the parties or in which he is interested. He further cited the decision of this court in the case of Salum Nassor Mattar (Administrator of the Estate of the Late Mattar Rashid Mattar, the Plaintiff) v. Bharat Bhagwanji Laxman & another Land Case No. 15 of 2017 (unreported). He also referred to regulation 35 (1) of the Advocate (Professional Conduct and Etiquette) regulations of 2018 which prohibits an advocate from acting for a client when the interest of the client and the personal interest of the advocate are or the interests of any person in his firm, are in conflict. He therefore urged the court to nullify the

proceedings and orders of the trial tribunal. 6 In reply, the respondent contended that, the instant application was a delaying tactic by the applicant to escape her legal obligation to pay her rental arrears she was required to pay after freely accepting the same through the settlement deed. In relation to the claim that the matter was instituted in the name of the deceased business owner, he argued that the trade of THAKER SINGH is owned by BALVINDER SINGH VIRDI to whom the applicant was paying rent and is still alive and not dead as alleged by the applicant. He argued that, before the trial tribunal, the applicant raised a preliminary objection regarding the respondent's locus standi but she abandoned the said objection after she agreed to settle the matter. The learned advocate submitted that litigations must come to an end as it was emphasized in the decision of this court in the case of MS Aqua Power Tanzania Ltd (T/S Turbine Tech. v. The Public Procurement Appeals Authority & 3 others, Misc. Civil Cause No. 32 of 2021 (unreported). As to the second irregularity in which the consent was not signed by the parties and certified by the chairman of the tribunal, he contended that in terms of regulation 18 (3) of the Land Disputes Courts (The District Land 7 and Housing Tribunal) Regulations, GN 174 of 2003 (hereinafter referred to as the regulations), the deed of settlement

becomes judgment and decree and the tribunal prepares no further judgment as it was pointed out in the decision of this court in the case of Natal Martin Charles Ltd v. Gapco Tanzania Limited Commercial Case No. 27 of 2021 (unreported). He argued that, what is required was for the deed to be signed by the parties and certified by the chairman as deed of settlement which became the judgment and decree of the trial tribunal. He argued that all these requirements were fulfilled in the instant matter. He maintained that the deed of settlement was signed by BALVINDER SIGH VIRDI who trades as THAKER SINGH hence the decision in the case of Jumanne Gaudence & 4 others v. Meneja Shirika la Posta Revision No, 10 of 2015; is inapplicable to the circumstance of the matter at hand. As to the third irregularity complained of that the respondent was represented by a law firm namely R. K Rweyongeza and Co. Advocates that had conflict of interest in this matter, the learned advocate contended that they were neither disputing to have prepared the settlement deed nor to 8 representing the respondent. He averred that what was being disputed was on the interpretation of the provision of the law. He further argued that the applicant should have preferred a disciplinary action and not take it as a ground of revision since it has nothing to do with the illegality in the proceedings of the trial

tribunal. He therefore urged the court to dismiss the application for lack of merits. In rejoinder, the applicant essentially reiterated her submission in chief. Having gone through the parties' rival submissions, the issue for my determination is whether the application has merits. As pointed out before the instant application, it has been preferred under sections 41(1) and 43(1) (b) of the Act. The said provisions empower the court to exercise its powers of revision against the decision or order of the District Land and Housing Tribunals. Of relevance, section 43 (1) (b) of the Act reads: (b) may in any proceedings determined in the District Land and Housing Tribunal in the exercise of its original, 9 appellate or revisionaI jurisdiction, on application being made in that behalf by any party or of its own motionf if it appears that there has been an error material to the merits of the case involving injustice, revise the proceedings and make such decision or order therein as it may think fit. [Emphasis added]. It follows therefore that, in the application for revision, the applicant is required to show that there has been an error material to the merits of the case involving injustice. In the instant matter as stated before, there is a deed of settlement signed by the parties herein. The applicant does not dispute that she signed the settlement. She never complained whether

she was forced or coerced to sign the said deed. Hence, there was no complaint that the said deed was obtained by fraud. What the applicant claims is that the matter before the trial tribunal was instituted by the respondent with no locus standi. The applicant argued that the business by THAKER SINGH is owned by MEHAR VIRDI who had already passed away by the time the matter was instituted. On the other hand, the respondent argued that the business by the name THAKER SINGH is owned by BALVINDER SINGH VIRDI who is still 10 alive and the applicant has been paying rents to him. Going by the parties' competing arguments, the issue as to who is the owner of the business needs evidence and the applicant was required to give evidence that the respondent had no locus standi to institute the matter. The respondent's claim that the business by THAKER SINGH is being managed by BALVINDER SING VIRDI is sufficient for him to have locus standi hence competent to institute the matter. The authorities referred by the applicant are distinguishable to the circumstance of the case at hand. As to the claims that the jurat attestation on the settlement deed was not in conformity with format under section 10 of Oaths and Statutory Declaration Act and also the claim that the respondent's advocate signed the settlement deed while at the same time representing the respondent, I am of the settled view

that the applicant has not shown how she was prejudiced by those omissions. Section 46 of the Act, states clearly that no decision of the tribunal shall be reversed or altered on account of any error, omission or irregularity in the proceedings before or during the hearing or in such decision or order or on account of the improper admission or rejection of any evidence unless such error, omission or irregularity or improper 11 admission or rejection of evidence has in fact occasioned a failure of justice. Since the applicant has not shown any failure of justice on the matters complained above, I find those complaints to have no merits. On the other hand, the applicant has complained on non-compliance with regulation 18(3) of the regulations which required the consent order to be signed by the parties and certified by the chairman. At the outset, there is no dispute that the applicant signed the settlement deed which was duly filed before the trial tribunal. The record reveals that on 18/11/2022, the trial tribunal marked the matter settled and the settlement deed filed was adopted as decree of the trial tribunal. I am of the settled view that Regulation 18 of the Regulation is applicable to situation where the parties decide to settle the matter before the trial chairman in which the chairman is required to reduce in writing the terms agreed by the parties and both parties must

therefore sign what has been agreed. In the instant matter, since the parties themselves decided to settle the matter outside the tribunal and reduced into writing what was agreed by the parties and settlement deed to the effect it was filed, I hold that Regulation 18 was inapplicable. 12 In the final analysis, I find the application to have no merits and the same is accordingly dismissed with costs. It is so ordered. Dated at Dodoma this 13th day of December 2023.

JUDGE 13