Ishengoma Ruling

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MWANZA AT MWANZA MISC. LAND APPLICATION NO. 11198 OF 2024 (Arising from Land Application No. 101 of 2021) ISHENGOMA EMMANUEL NSHUNJU …………………………….. 1ST APPLICANT BEATH ISHENGOMA …………………………...……………………. 2ND APPLICANT VERSUS BARAKA ALFRED ……….………………………………….…………… RESPONDENT RULING 25th September & 25th October 2024 CHUMA, J. The applicants in this application is seeking the indulgence of this court to call for and inspect the record of the District Land and Housing Tribunal in Land Application No. 101 of 2021 and Misc. Application No. 101B of 2021 and satisfy itself as to the regularity and correctness of the entire proceedings. And cost be provided for. The application is supported by the affidavit of the applicant’s advocate Mr. Dennis Kahangwa. This application, disposed of by way of the written submissions dully filed by Mr. Dennis Kahangwa and Mr. Dioniz Mwasi both Learned advocates for the applicants and respondent respectively. In his submission Mr. Dennis advocate for the applicants asserted that, on 31.10.2023 the trial Tribunal vacated its previous order to 1 maintain the status quo pending the final determination of the dispute which in essence opened the premise in dispute without allowing the applicants to address the court before issuing an order. The applicants contested and objected to the presiding Chairman to proceed with the matter on the grounds stipulated in exhibit 1B/3. Mr. Dennis further submitted that the trial tribunal did withdraw the application upon application by the respondent without according the applicants to address the raised objection on recusal of the presiding Chairman from pertaining the application. According to him, such withdrawal amounted to pre-empting the objection to rectify the anomalies. He cited the case of Method Kimomogor Vs. The Board of Trustees Tanapa Civil Application No. 1/2005. And that the respondent thereafter instituted a similar application No. 98 of 2024 containing similar reliefs before the same Tribunal and is before the chairman whom the prior complaint was made against. In response, Mr. Dioniz contested the applicant's submission via Mr. Dennis's advocate on the ground that the application is overtaken by events as the impugned applications have been withdrawn and a new Land application No. 98 of 2024 has been filed and is pending before the Tribunal. 2 Mr Dioniz went on arguing that on 12.3.2024 the application was withdrawn before the respondent's advocate and the second applicant who had nothing to object to the respondent's prayer to withdraw the matter. He challenged the allegation of withdrawing the application before determining the alleged preliminary objection. And the record does not indicate lodging of the said objection in Land Application no. 101 of 2021. He went on arguing that nothing was pending in court to be heard as alleged by the applicants’ advocate. It was his further submission that the application was withdrawn for want of the proper description of the disputed property and not otherwise contained in that complaint letter by the applicants. The respondents’ advocate concluded by arguing that the order dated 31.10.2023 of reopening the suit premise was issued by the tribunal since the applicants used it as delaying tactics for being not ready to proceed with the trial. He finally urged this court to dismiss this application with cost for want of merit. Having gone through the party’s pleadings and the rival submissions for and against the issue that calls for determination by this court is whether the application is meritable or otherwise. 3 From the record, it is beyond doubt that on page 8 of the typed proceedings in Application No. 101 of 2021 on 31.10.2023 the tribunal vacated its order to maintain the status quo by permitting the applicant now the respondent to make use of the disputed premise till final determination of the application No. 101 of 2021. In making its order the trial tribunal referred to the application No. 101 B of 2021 indicating that the same was issued therein. However, the alleged or referred prayer does not feature in proceedings in the referred application No. 101B of 2021. The record on page 10 reads; ‘Tarehe 31/10/2023 Akidi: Mhe .Lekamoi -Mwenyekiti Mwombaji: Dioniz Mjibu maombi: Kelvin Mtatina kwa niaba ya Wakili Kelvin: Hatuna pingamizi na maombi haya. Sgn………. Mwenyekiti 31/10/2023 Baraza: Maombi haya yanakubaliwa kama yalivyoombwa kasoro gharama. 4 Sgn………. Mwenyekiti 31/10/2023’ From the quoted proceedings, it is amply clear that the mentioned prayer remains unknown. Therefore one may hardly say that the tribunal vacated a non-existence of an order. Without much ado the referred order I unreservedly declare was void abinitio. The record further reveals that the order in Application No. 101 of 2021 was made suo moto by the court without the parties’ application. I am therefore in agreement with Mr. Dennis that the applicant was not accorded a chance to address that aspect. However, as stated above this court finds nothing to fault that order since nothing existed as per the record. The prayer to maintain the status quo was sought on 13.7.2021 in Application No. 101 of 2021 but no order was issued whether to grant or not. See page 3 of the typed proceedings. The other allegation is that the matter was withdrawn without first disposing of the raised objection for recusal of the presiding Chairman. Perhaps the pertinent question here is whether the applicant raised the alleged objection. 5 In responding to the above question, the tribunals’ proceedings on pages 9 and 10 will ease my task as I hereby quote; ‘Date 12.03.2024 Akidi: Mhe.Lekamoi Mwenyekiti Mdai: Mnico Chacha Wadaawa:Mjibu maombi wa 2 pekee ndiye yupo T/C:…… Mnico Chacha Shauri linakuja kwa ajili ya kusikilizwa hata hivyo,eneo lenye mgogoro halijatambulishwa,tunaomba kuliondoa shauri hili tukilenga kulirejesha. Sgn………………. Mwenyekiti 12/3/2024 Mjibu maombi wa 2. Sina pingamizi Sgn………………… Mwenyekiti 12/3/2023 Amri: Maombi haya yanaondolewa Barazani kama alivyoomba wakili wa mwombaji,anaweza kuyarejesha pale ambapo ataona inafaa. 6 Kila upande ujigharamie. Sgn…………………… Mwenyekiti 12/3/2023’. The foregoing record is quite clear that it does not reflect the existence of the alleged objection as asserted by the applicant’s advocate Mr. Dennis. On this point, I subscribe with the submission of Mr. Dioniz's advocate that the record does not indicate lodging of the said objection in Land Application no. 101 of 2021. And that the application was withdrawn for want of the proper description of the disputed property and not otherwise contained in the referred complaint letter by the applicants. If I may go further it has been a practice that once a sort of objection is raised via letter, the complainant has to address the court on the date of his or her appearance in court for it to be recorded in court proceedings for determination. In the instant application, the record is dead silent on whether the applicants raised such concern in court on 12.3.2024 for its determination. In the absence of the same on record what was submitted by Mr. Dennis is out of context. In light of the above reasons and since the parties are at once that Land application No. 98 of 2024 has been lodged before the tribunal after 7 withdrawing the impugned application, ordering otherwise than dismissing the instant application will not be justifiable. Any claims concerning the disputed premise may now be raised and dealt with in the pending application herein above pointed which is known to all parties in dispute. In the event, the application is devoid of merit. Owing to the nature and circumstance of this matter I desist from making an order for cost. I so order DATED at MWANZA this 24 day of October, 2024. W.M. CHUMA JUDGE 8 The ruling delivered in court in attendance of Mr. Dennis advocate for the applicants and Mr. Dioniz advocate for the respondent virtualy this 25th day of October, 2024. W.M. CHUMA JUDGE 9