jamuhuri libawa administrator of estate of the late otilia lyapembile vs anold lawrence matemba and another 2020 tzhclandd 2197 20 april 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 35 OF 2018 (Originating from the from the decision of District Land and Housing Tribunal of Morogoro at Morogoro in Land Case No. 133 of2009) JAMUHURI LIBAWA (Administrator of estate The /ate OTILIA LYAPEMBILEJ........................................ APPELLANT VERSUS 1 ANOLD LAWRANCE MATEMBA............... ............. st RESPONDENT JOACHIM HUGO MWAKITIGA (Administrator of estate 2 of the late ANDREA TITUS LIBAWA).......................... nd RESPONDENT JUDGMENT ON APPEAL. S.M MAG HIM BI, J: At the District Land and Housing Tribunal for Morogoro ("the tribunal''), the Appellant sued the respondents for the rent arrears to the tune of Tshs. 1,800,000 from 31/08/2007 to 31/09/2009, a declaratory order that the suit property belongs to the applicant and an order for vacant possession of the suit property. Having heard all the parties in trial at the time of constructing his judgment, the honorable Chairman of the Tribunal raised suo moto an issue of jurisdiction and proceeded to dismiss the suit for want of Jurisdiction. Being aggrieved by the Trial tribunal decision, the appellant preferred this appeal on the following grounds: i 1. That, the trial Chairperson erred in law and fact to direct the applicant to lodge a application for the objection proceeding at Morogoro Resident Magistrate Court while the same was lodged at determined in Misc. application No. 10 of 2014. 2. That, the trial Chairperson grossly erred in law and fact by failing to consider the gravity and weight of evidence adduced by applicant side through Misc. Application No. 58 of 2009 which was contract in nature and not land dispute 3. That, the trial tribunal chairman erred in law and facts by dismissing the application since none of the ruling was tendered by the first respondent to confirm that the same matter was duly determined at Morogoro Resident Magistrate. 4. That, the trial tribunal chairman erred in law and facts by for assuming that location of the dispute premises in trial tribunal which was located at Ruaha Village in Mikumi province in Kilosa District is the same to the sales contract between 1st and 2nd Respondents In this court, the Appellant and 2nd Respondent appeared in person while the 1st respondent was represented by Learned Counsel Benjamin Jonas. The appeal was disposed by way of written submissions. In his submissions, the appellant consolidated grounds 1, 3 and 5 while ground 2 and 4 were argued differently. Submitting to the 1st' 2nd, and 5th grounds, he argued that the subject matter and the parties to suit in Civil Case No. 01 of 2009 in the Resident Magistrates' of Morogoro and its subsequent Civil Revision No. 58 of 2009 at the High Court before Hon. Abood J, is not the same as Land Application No. 133 of 2009 before the tribunal. That the suit property at the tribunal is located at Ruaha Village, 2 Mikumi, Kilosa District contrary to subject matter in RM's Court. Further that the rent due from respondents is on behalf of the deceased Otilia lyapembile (the Appellant), who was not party to the suit in RM'S court, he concluded that it was wrong for the Chairman to rule out that the suit is res judicata. On the 2nd ground of appeal, the appellant submitted that even if the 1st respondent's Claim to purchase the suit land were true, the sale agreement is invalid since the sale was never consented by the wife of 2nd respondent contrary to Section 59 of the Law of Marriage Act (Cap 29 R.E 2002). He went on contesting that, failure of the Chairman to decide on framed issue rendered injustice to the Appellant and that the chairman erred by not allowing parties to address him on the new issue framed suo moto upon which the judgment was made. On 4th ground of appeal, he submitted that the chairman's judgment relied upon unadmitted evidence like eviction order, ruling of Civil Case No. 01/2009 and its Revision which were not tendered as exhibit. He referred his argument to the Decision in Abdalla Abass Najim Vs. Amini Ahmed All, TLR (2006) 55 and Kihaka Lucas Kihaka Vs. Edwin Asangalwyisi Kasekwa & Pitson Twinzi, Land Appeal No.50 of 2016, HCT at Mbeya (unreported). On his part, the 2nd respondent conceded the applicant's grounds of appeal and denied to have sold the suit land to the 1st respondent. For the 1st respondent, Mr. Jonas submitted that first, the appellant has no capacity to institute the suit for the estate of deceased since he is not administrator of estate. Secondly, the appellant was not a party to the 3 suit before the trial tribunal, since the suit was intuited by JAMHURI LIBAWA in his Personal capacity, he cannot appeal to this Court at different Capacity. On the 1st and 2nd grounds of appeal, he submitted that the trial chairman reached a just decision since the 1st respondent was declared a lawful owner by the High Court hence the tribunal cannot make decision over the same subject matter. That since the same subject matter was subject to decision by another Court and since no suit was brought to Court to challenge the sale on ground of spouse consent, the sale Agreement remains valid. For 4th and 5th grounds, Mr. Jonas submitted that, the Appellant did not prove that the subject matter which is "the Suit Property" at the tribunal, is different from the sale agreement which himself annexed in filing the application at the tribunal. In rejoinder the Appellant reiterated his submission in chief. Having gone through the records of this appeal and the parties submissions, there is only one issue for me to determine at this point before going into the merits of the appeal if need be. The main contention here is whether it was right for the Chairman of the Tribunal to dismiss the Application on the ground that it was Res Judicata without affording the parties an opportunity to address the court on the issue. This is by taking into consideration that the issue of jurisdiction of the court was not one of the three issues framed for determination. 4 It is trite law that a trial court is bound to make decisions on matters that are framed as issues for determination according to the evidence adduced. The object of framing of issues is to focus upon the questions on which evidence has to be led to prove tham and also to indicate on which party the burden of proof lies. This also gives parties an opportunity to prepare and lead their evidence towards a focused direction in pursuit to prove their cases. Issues may be of fact or of law but in any case, the determination of the case shall be based on those issues framed. Therefore should the trial court wish to depart from the issues framed for any reason, then it can do so AFTER affording the parties right to be heard on the new issue . As correctly submitted by the appellant, the trial chairman determined the matter of res judicata which was not an issue that was framed for determination. As a result, the tribunal condemned the parties unheard on the issue that finally determined their rights. The law is clear and as it has been said many a times that any decision that is made without affording the parties a right to be heard is a nullity. It is a nullity even if the same decision would have been reached had the parties been given an opportunity to be heard. This is because the right to be heard is a core foundation of a proper administration of justice and it is not something that can be overlooked. In the case of Fabian Munraha Vs. Rukaya Munraha (1996) TLR 150 it was held interalia that: "The Appellant was effectively and wrongfully denied the right to be heard and clearly condemned unheard. Such violation of the Appellant's right to be heard constituted a contravention of one of the basic principles of naturaljustice" 5 Hence if the tribunal found that the matter before it was res judicata, then it should have given the parties an opportunity to be heard on that, something which he did not do as the issue arose when he was constructing the judgment. The decision of the tribunal is therefore a complete nullity as parties were not accorded an opportunity to be heard. On those findings, the judgment of the tribunal is hereby nullified and the subsequent decree set aside. The matter is remitted back to the trial tribunal with an order that the application is determined on its merits and if, and only if, the tribunal will still intend to determine the jurisdiction of the case on the issue of res judicata, then it shall ensure that parties are afforded opportunity to address the court on whether or not the matter is res judicata as per the available records and the tendered evidence. Right of Appeal shall accrue and be computed after the new decision is made. The appellant shall have his costs for this appeal. Appeal Allowed Dated at Dar es Salaam this 20th day of April, 2020 6