20150904 TZHC Mwanza

.-IN THE HIGH COURT OF TANZANIA ATMWANZA LAND APPEAL NO.· 9 OF 2014 (From the Decision of the District Land and Housing Tribunal of Tarime District at _ Tarime, in Land Case No. 28 of 2012) HIGHWAY OF HOLYNESS CHURCH (T) ............................ APPELLANT VERSUS 1. NYANSURURA VILLAGE } 2. MWITA NYANGATA ............................. RESPONDENTS ~4JM2-T[;..--JUDGEMENT Ebrahim, J. This is an exparte judgement following the respondents' failure to enter appearance on several occasions. Moreover, the appellant presented before the court, affidavits of 25.05.2015 attested by one Bitta Jumanne Nyachuma that the respondents refused to accept the summonses. Consequently, the court ordered the matter to proceed ex-parte. The brief background of the matter is that the appellant herein filed an application at the District Land and Housing Tribunal for Tarime vide Application No. 28 of 2012 praying for the reliefs that the applicant be declared a rightful owner of the disputed land; thatthe respondent to be ordered to pay the --=-- applicant for the property destroyed; and costs. Before hearing of the matter on merits, the first respondent raised a preliminary objection that the applicant has not complied with the mandatory I provision of issuing a thirty days' notice to sue a Local Government Authority as per the Local Government (District Authorities ) Act, CAP 287, R.E. 2002. The Chairman of the District Land and Housing Tribunal then gave the ruling that the appellant has contravened the provisions of the law and struck out the application with costs. Aggrieved the appellant preferred this appeal. The appellant has raised seven grounds of appeal, however the crux of the appeal is on the issuance of thirty days' notice whereby the appellant is complaining that the trial chairman erred in holding that the applicant sued the Nyansusura Village Council without giving them notice as required by the law; that District Authority is not synonymous with the village council; that the document dated 22/07/2010 clearly establish that they did issue an adequate notice; and that second respondent failed to file his written statement of defense. In arguing the appeal, the appellant was not represented, thus he appeared in person as the Pastor. The appellant adopted their petition of appeal and in addition he did not have much to say and prayed for the Court to return their land as they planned to develop it and build a nursery school and pastor's house. He further prayed for the court to allow the appeal with costs. - Village Coun€fl is provided under section 25for part II of the Local Government (District Authorities) Act, CAP 287, R.E. 2002 which caters for local Government Areas, Establishment, Registration and Variation of Areas of Local Government Authorities. The section reads; "There shall be a village council for every village in accordance with the provisions of this Act// Section 190 of CAP 287, R.E. 2002, provides that; "(1) No suit shall be commenced against a local government authority until one month at least after written notice of intention to commence the suit has been served upon the authority by the intending plainttff (2) The notice served under this section shall state the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims'~ Village Council is under the local government authority as such from the literal meaning that can be discerned from the above provision, the requirement of the law of 30 days' notice is mandatory. The appellant attached the letter with his application which he is claiming that it is evidence that he availed the Village Council with the required notice. However, the appellant neither listed it as a document that supports their case nor that it should be taken as a notice of intention to sue. A mere annexing of documents does not automatically make it as part of the pleadings. Thus, I agree with the Chairman of the trial Tribunal that the requirement of notice is wanting. Therefore, that ground of appeal has no merits. The above notwithstanding, being a court of records, I visited the records ofproceedings and discovered that, the issue of notice apart from being raised by ~ the first respondent, there is nowhere in the proceedings where it reflected that parties were given the chance to address the same. All it is reflected is that there was preliminary objection raised, and that on the date of hearing of preliminary objection, the first respondent was absent but the appellant was present. However, it does not reflect anywhere that they were afforded right to be heard on the issue; and the trial chairperson proceeded to rule out the objection on the matter. 3 The Court of Appeal has insisted now and again that the right to be heard is paramount (see the case of Ausdrill Tanzania Limited V Mussa Joseph Kumili and Another, Civil Appeal No. 78 of 2014) and not observance of the principle of natural justice renders the proceedings nullity. Unfortunately, the trial chairman determined the preliminary objection in disregard of the natural justice principle of right to be heard. Faced with a similar situation, the Court of Appeal in the case of Mire Artan Ismail &Another V Sofia Njati, Civil Appeal No. 75 of 2008 (unreported) quashed the decision of the trial High Court. I follow suit and quash the decision of the trial chairman and the resultant orders. Allinall,~~~tM" <©Yt@m·til:W the decision of the trial tribunal is quashed and the resultants orders thereof. This being the first appellate court, and as stated earlier, and since the requirement of notice is wanting, the appellant had no locus to proceed with the matter and subsequently this appeal. In the circumstance therefore, I struck out this appeal and the a'ppellant is at liberty to start· afresh in compliance with the requirements of the law.Following the circumstances of the case, I give no order as to cost. Each party to bear their own costs. It is so ordered Vv\- R.A. Ebrahim JUDGE At Mwanza 04/09/2015