hamis mwinshehe vs kihonda ward executive officer others 2018 tzhclandd 555 5 september 2018

THE HIGH COURT OF TANZANIA [LAND DIVISION] AT PAR ES SALAAM LAND APPEAL NO. 56 OF 2017 (From the Decision of the District and Housing Tribunal of MOROGORO District at MOROGORO in Land C ase No. 13 of 2013) HAMIS MWINSHEHE................................................................... APPELLANT VERSUS KIHONDA WARD EXECUTIVE OFFICER . 1st RESPONDENT EDWIN MASAKI..................................... 2 nd RESPONDENT REGISTERED TRUSTEES EVANGELISTIC ASSEMBLIES OF G O D ........................... 3 rd RESPONDENT JUDGMENT Date of last Order: 29/8/2018 Date of Judgment: 5/7/2018 A. MOHAMED. J: On 5/9/218 when the ap p eal was called on for hearing, I asked the parties to address me on whether the learned trial tribunal Chairm an had afforded opportunity to hear the parties on the question he had raised and answered while composing judgment on whether the suit before it was res judicata. The appellant, Hamis Mwanshehe, averred the matter was not res judicata as he neither knew one Kulwa Ram adhani, mentioned in the learned trial Chairm an's judgment nor was he afforded to be heard on the question in the trial. i On her part, Lilian Masaki for the 2nd respondent, asserted the matter had been earlier heard and determined by the Ward Tribunal, and in ap p eal at the District Land and Housing Tribunal and finally in this Court over the sam e one acre parcel of land. It was her view, the Chairm an asked the parties to com m ent on the question. After a careful perusal of the trial tribunal's proceedings, I am satisfied the learned Chairm an did not afford the parties the right to be heard on the question as the proceedings are silent on the point. In fact, he raised the question and answered it himself in the judgment basing on w hat he called submitted documents and held that Kulwa Ram adhani, party to the earlier litigation between him and the 2nd respondent, was the ap p ellant’s relative and therefore the matter before him was res jud icata having been earlier conclusively determined by the sam e parties over the sam e subject matter. In Mbeya Rukwa Auto parts & Transport Ltd v. Jestina George Mwakyoma [2003] TLR 251 (CAT) it was observed; “The Court of Appeal held inter alia it is a cardinal principle of natural justice that a person should not be condem ned unheard but fair procedure demands that both sides should be heard and that a power that affects a right must be exercised judiciously that is fairly". In view of the ab o ve principle, I think the learned tribunal Chairm an erred in determining the question without first hearing the parties. 2 For the ab o ve reason, I invoke my power of revision to nullify the proceedings, and set aside the judgment and d ecree of the trial tribunal. Either party is at liberty to file a fresh ca se . As neither party was at fault, e a ch is to bear its costs. A. Mohamed, JUDGE 5/9/2018 The right of ap p eal to the Court of Appeal explained. A. Mohamed, JUDGE 5/9/2018 3