LAND APPEAL NO

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA LAND APPEAL No. 00003946 REFERENCE NO. 202402271000003946 (Arising from the decision of the District Land and Housing Tribunal for Mara at Musoma in Land Application No. 14 of2021) BETWEEN JACKSON NYAMACHOA................................................................... APPELLANT VERSUS ZAITUNI OGAMBI ORALE......................................................... RESPONDENT JUDGMENT 16" & 24" July, 2024 M, L. KO MBA, J,; This appeal emanates from the decision of the District Land and Housing Tribunal for Mara at Musoma (the DLHT) in Land Application No. 14 of 2021 where Hon. Chairperson dismissed application on the ground that legal fees was not paid to the amended application. Above named appellant and another person (who is not part to this appeal) instituted a suit against respondent claiming a piece of land in Butiama District. As hinted, the appellant who was the first applicant was dissatisfied by the Page 1 of 9 decision of the DLHT and fronted this court with three grounds of appeal which can be summarized as follows; 1. Dismissal was done by the second applicant advocate; die appellant was not involved and was not fair to be punished. 2. There was Irregularity on legal representation of the appellant during dial. 3. The DLHT was wrong to proceed with counter claim while there was no case after dismissal. When the appeal was placed before me for hearing, the appellant was represented by Mr. Leonard Magwayega while the respondent was represented by Mr. Baraka Makowe, both learned advocates. When given the floor, counsel for the appellant combined the first and second ground of appeal and submitted that the base of these two grounds are errors by the Tribunal as on 05/12/2022 Mr. Ostack Mligo who was representing the appellant and another party, withdraw from legal representation to the appellant (then 1st applicant) without any reason. Thereafter, he said the chairperson did not give the appellant chance to decide whether he will proceed in person or he will need time to find another advocate. Mr. Magwayega submitted further that there is counter claim which was replied by Mligo who combine both applicants while Page 2 of 9 knowing he is not representing the first applicant. That being not enough, at page 10 of the typed proceedings on 07/02/2023 Mr. Mligo applied to amend application form and Chairperson granted the prayer. He went on saying the prayer was registered two months since he withdraws from representation to the appellant and the appellant was not consulted on the amended application and therefore the issue that amended application was not paid with court fees was not the concern of the appellant. Counsel faulted the decision of Chairperson to dismiss the whole application on 22/01/2024 as the dismissal include the appellant's application which was not subjected to amendment. Submitting further on irregularity Mr. Magwayega pointed that on 13/03/2023 counsel Mligo prayed to file reply to counter claim and Chairperson granted the prayer, by that time Mr. Mligo was already withdrawn from representing the appellant but the appellant was included in the counter claim. As it was assumed the court fee was not paid, the application was dismissed and the dismissal affected the appellant herein. He lamented that it was wrong for the tribunal to accept the pleading with the name of the appellant while Mr. Mligo was not representing him. Page 3 of 9 On the 3rd ground he submitted that the main suit was dismissed without considering of the position of the 1st applicant now appellant. To him, that means the previous application which was filed when under representation of Mligo was in place and Hon Chairman errored on withdraw 1st applicant claim and proceed to entertain counter claim against the 1st applicant as there was no base for counter claim. He prayed this court to rectify there was an error and order the application by applicant to proceed so that the counter claim can be heard. Resisting the appeal Mr. Makowe raised two issue to assist the decision on the favour of respondent; one when the counsel stops to represent appellant and two; counter claim is an independent matter or a reply to the matter in court. Counsel did not dispute that on 05/12/2022 Mr. Mligo withdraw his representation to appellant but it was his submission that 1st applicant signed document which was drawn by Mr. Mligo after his withdrawal and therefore he submitted that it is not possible for appellant to deny that he was not represented by Mr. Mligo for the action of appellant to sign the document, he said, it means Mr. Mligo was engaged again. He was of the position that the appellant is finding a path to exonerate himself from the conduct of Mr. Mligo for non-payment of court Page 4 of 9 fee. Referring Order VI of the Civil Procedure Code, Cap 33 (the CPC) he said parties must sign document prepared by advocate. He insisted by signing the amended application means he is responsible to it. He prayed this court to find the combined grounds have no merit. About counter claim Mr. Makowe was of the submission that counter claim is independent it does not depend on existence of main case after it being dismissed that's why both need evidence and each has to prove. To him the Tribunal was correct to set date of the hearing of the counter claim. He disagrees with the issue that counter claim was supposed to be to the second applicant alone because the appellant replied the counter claim he was party of that suit. He prayed the appeal be dismissed with costs. While rejoining his points Mr. Magwayega submitted that there was no proof that appellant engaged an advocate for the second time rather from page 19 up to 22 Mr. Mligo insisted, he was represented the 2nd applicant. That proves he was not representing the appellant herein. Further, he clarified that the problem complained off was amendment applied on 07/02/2024 which is the second amendment and was complained by counsel Makowe at page 14 of the proceedings and the tribunal dismissed the matter. He narrated that by 30/08/2023 Mr. Mligo was not representing Page 5 of 9 the appellant and faulted him for including the name of the appellant in pleading whom he was not representing. He then insisted that counter claim will not have base as main suit is dismissed and urge me to allow this appeal and order what this court will deem fit to grant. My duty is to determine the appeal before me as argued by counsel for both sides. It is undisputed that on 05/12/2022 advocate who was representing the appellant during trial tribunal withdraw from representation as featured at page 05/12/2022 of the proceedings. In my perusal on the amendment which was discussed basing on order of the DLHT of 07/02/2023 and submission was made on 22/01/2024 followed by the ruling on the same date 22/01/2024, 1 find the amendment was filed on 14/02/2023 and previous there was amendment to application which was filed on 15/03/2021. That means there were two amendments. The second amendment was filed after the withdrawal of the Counsel for the appellant from representation. Upon further perusal I find the amendment filed on 14/02/2023 was signed by two applicants; Jackson and Marwa. At this juncture join the submission by Mr. Makowe that the action of the appellant to sign the amended application form means he is aware of it and responsible to it. Having Page 6 of 9 make the position of this court on the second amendment, the issue now is weather non-payment of court fee makes the matter unprosecuted as seen at page 2 of the ruling which dismissed the application. It is from record that when there was in existence of the 1st amended application, on 07/02/2023 Mr. Mligo applied to amend the application form to include in it, the size of the disputed land and boundaries. The copy of amended application was filed in tribunal but it has no receipt and after argument Mr. Mligo prayed to withdraw the second amendment as it was not paid as per law. The prayer was objected by Mr. Makowe on the ground that there was nothing in the tribunal to be withdrawn, as applicants failed to obeys court order, it is true that when party prays and the court grant the prayer, it becomes court order. However, Mr. Mligo on 07/02/2023 did not prayed to withdraw the existing application rather he prayed to indicate boundaries and the size. After his failure, still there was application in the Tribunal which was filed on 02/02/2021 and which was amended on 15/03/2021. Without going further in these two combined grounds, I find appellant was represented by Mr. Mligo till when the second amendment was filed, I find further that upon failure to pay court fee for the second amendment of the Page 7 of 9 application, the first amendment and the application was intact and therefore it was not right to dismiss application on the ground of non­ prosecution as parties were in court all the days. The combined grounds are decided to that extent. Existence of the counter claim depends totally on the main suit/application that why they are called "counter" and are not registered separately from the main suit. In the matter at hand, the counter claim can only proceed depending on the determination of the main application. In the cause of writing this judgment I came across with the legal issue which necessitated the parties to address this court. However, as the appeal was preferred by only one applicant, analysis of such issue will prejudice the other party who will not have audience to this court to submit on the issue before determination. In general, the appeal found with merit to the extent analyzed. I order the matter to proceed at the District Land and Housing Tribunal for Mara at Musoma as there is application which was not withdrawn and the parties did not fail to prosecute the mater. However, Chairperson has to read Page 8 of 9 closer the application form and satisfy itself it the application was properly before the Tribunal. DATED at MUSOMA this 24th Day of July, 2024. M. L. KO MBA JUDGE Page 9 of 9