jordan majiyamoto mlokota vs christom a ekonga 2022 tzhclandd 100 27 january 2022

IN THE HIGH COURT OF THE UNITED REPUBUC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL 150 OF 2019 JORDAN MAJIYAMOTO MLOKOTA APPELLANT VERSUS CHRISTOM A. EKONGA RESPONDENT (Appeal form the Judgment and Decree of the District ing and Land Tribunal for Kilombero/Ulanga district at Ifakl fHon. H.E. Mwihava. CM.J^ dated the 19*** day of Ji 201 im Misc. Land AppIu ^ JUDGMENT Date of Last Order: 24/l|SBK21 & Date of Judgment: 27/01 20 S.M. KALU Tenging the decision of the District Housing ancmana i rit^ai lor Kilombero/Ulanga district at Ifakara (herein referr^tebj^^^e DLHT") in Misc. Land Application No. 234 of 2019 dated 19^ day of June, 2019. The brief facts of the case as reflected from the record are that Application No. 86 of 2019 t)efore the Ward Tribunal C'the ward tribunal") terminated in favour of the respondent, CHRISTOM A. EKONGA. The appellant was not hapo with the decision of the ward tribunal, as a result he preferred an appeal with the DLHT. The appeal before the DLHT was registered as Land Appeal No. 403 of 2018. By an order dated 21^ May, 2019 Land Appeal No. 403 of 2018 was dismissed for non- appearance. In dismissing the appeal, the DLHT relied on regulation ll(l)(b) of the Land Disputes Courts (The Di^^t Land and Housing Tribunal) Regulations, 2002, G.l^jn^^^l^pTf'the Regulations"). Subsequent to the dis sa La peal No. 403 of 2018, two applications were fi The po t filed, before the DLHT, an application IS Miscellaneous Land Applicatioi%d^ii03 0 8. On the other hand, the appellant lodged Jflisc: tion No. 234 of 2019. The later was an ®DDiicatia^ W8|^ preferred under regulation 11(2) of the ReguIHiDS wMthe intention of set aside the dismissal order dated 19^ day of June, 2019. Having heard the parties, the tribunal delivered its ruling dismissing the application. In its decision the DLHT made the following remarks>(y ^ BEFORE:- H.E. Mwihava:-Charman: Indeed there is no any reason or tangible evidence adduced by the appellant to justify his failure to attend the tribunal. The application is dismissed. The respondent to be bandied over the suitiand by 28/6/2019 or else the tribunal broker to evict the applicant accordingly. Sgd. H.E. Mwihava, Chairmak 19/6/2oh That was the entire rulin ssing Misc. Land Application No. 234 of It gai this ruling that the appellant had prefe ap durt citing two complaints which were finally Ida one, that is, the trial DLHT erred in law an n or execution of the suit land to the app asi e a dismissal order. of ie Court was granted for the appeal to be argued by way of written submissions. Orders for filing respective submissions were ccomplied with save that the appellant, for some reasons and apparently within his choice, could not file his rejoinder submissions. Submissions of the appellant were drawn and filed by learn counsel Mr. Augustine Mathern Kusalika whilst those of the respondent were filed by Josberth Kitale, learned advocate. In support of the application Mr. Kusalika argued that it was wrong for the DLHT to issue orders that respondent to be handled over the suitland or else be evicted by a tribal broker. His argument was founded on premise that 234 of 2019 was not an application Kusalika implored that the orders given wer^ffipi|j|ecf%.issued after the DLHT had herd the parties injy^^band^tolication No. 403 of 2019. In view of that the coun ins appeal was meritorious, He thus prayed allowed and the proceedings before the nd Application No. 234 of 2019 be nullifi red. e counal for the respondent argued that the DLHT, having heard th ies, was satisfied that the appellant had failed to demonstrate ground for the grant of the application and hence restoration of Land Appeal No. 403 of 2018. The counsel added that there was no order eviction of the applicant or appointment of a court broker for that purpose. On the other hand, the counsel admitted that the application for execution, Misc. Land Application No. 403 of 2019, was still pending with the DLHT. In the end he insisted that the appeal lacked merit and ought to be dismissed. On my part, having considered the rival arguments, I think the pressing question for my determination is whett^^the appeal is merited. From the records there is no di^^ tha'^Misc.^fend Application No. 234 of 2019 was prefe chamber summons made under regulati regulations and supported by an affidavit by appellant. No counter affidavit was filed in op ition it. The prayers sought in the application w t this f^jurabie Court be pleased to set hmissai order in respect of Land iication No. 403 of 2018 and order re^ration ofthe same. 2.SCosts of this application to follow the result of the suit 3. Any order the Tribunal may deem fit. Relying on the above extract, and upon a careful examination of the available records and the submissions made by the parties, I am satisfied that, indeed, Misc. Land Application No. 234 of 201 was an application intended to set aside the dismissal order in Land Appeal No. 403 of 2018. From the records, it is also common knowledge that Misc. Land Application No. 234 of 2019 was heard in the presence of both parties. This is witnessed by the records dated 19*^^ne, 2019. The records show that at the hearing the appella ed the court to consider the reasons pro in t filed in support of the application. On s nt contended that the appellant had failed iveral days without any reason. Upon hearing a two-paragraph decision, part of the ruliritj'eadB'.. th^Ws no any reason or tangible evidence add iiant to justify his failure to attend the tribunal." The wen n to dismiss the application. The tribunal went on to order e "respondent to be handled over the sultland by 28/6/2019 or else the tribunal broker to evict the applicant accordingly.''k "Drawn Order" and an "Eviction Order and Hand Over" notice was issued to Property Intern & Court Brokers to evict the appellant. Apparently, these orders were issued in a application that sought so set aside a dismissal order and not an application for execution. Given the above set of facts, I am persuaded to agree with the counsel for the appellant that it was improper for the DLHT to make orders for vacant possession and eviction of appellant in proceedings that sought to set aside a dismis appeal. I gather that he might have swa ct that before the DLHT(Hon. H.E. Mw o applications. that is Misc. Land Applica 23 2019 and Misc. Land Application No. 403 of Th rm ing an application to set aside a dismissayUer the iter being an application for execution, ho er say that the consequence of the irreaulacitv is lecision the tribunal a nullity. evertingso the merits of the appeal, in the first ground of appeal ellant complained that he was not heard on merit. I took it that the appellant was complaining in the manner in which the decision of the tribunal was made. That takes me to the ruling of the DLHT, the substance of which has been quoted in full at the beginning of this judgement. I must say that, upon examination the records available before me, I am clearly satisfied that the learned Chairman of the DLHT abdicated his responsibility of considering the facts and comparing and analyzing the submissions made before him and come to a well-reasoned conclusion. It defies logic how the DLHT would compos%^uch a fleeting ruling. Whereas I agree that there is no esta fo e number of pages required to constitu common knowledge that, in composing i ought to have considered the facts of the va arguments from both parties; appiy the law Igthe f me up to its conclusion whilst giving reasq^^or^^ecisiow None of that was done in the circumstanc^pOrthhe oraent case. The appellants grounds in the affidavi hi overted, were not considered at all and cient as given. I think the appellant was justified to be ved d launch the present appeal, regardless of what would have been the outcome of the appeal. In the circumstances I think there is merit in the first ground of appeal. Next for consideration is the way forward. The appellant prayed that orders for retrial be issued. Having ruled that the DLI abdicated its responsibility and in terms of section 42 of the Land Disputes Court Act, Cap, 216 R.E. 2019 C'the Act^ read together with regulation 11(2) of the Regulations this Court must consider the records and submissions by the parties and come to its own conclusions and thereby make the necessary orders. After all, I am ceased with the records sufficient for me to admi^^r justice. Available records show that Land of 2019 was dismissed under regulation gulations. The respective regulation provide th the application Is fixed for hearing the tribunal tfj^^ppUc^t is absent without od^^^^^^r^had received notice of ^^^^resent when the hearing date IV, fixed,^^niss the application for non- ofthe applicant ^ In his avi iled in support of the application the appellant cont the day fixed for hearing of the appeal, that is on 21^ May, 2019, he was attending the burial of his young brother he thus sent his sister Fatma Athman Madonda to inform the DLHT. The said representative attended before the DLHT and provided the information. However, her plea was rejected, and the DLHT went o to dismiss the appeal for non-appearance. The order Issued by the DLHT partly read: ''The tribunal is not satisfied with the information of the reporter sent by the appellant and so I proceed to dismiss this appeal for non appearance of the appellant as per Regulation 11 (1) (b) of Go\^nment Notice No. 174 of2003." There is, thus, no dispute that the DLI whereabouts of the appellant. I am so th under regulation 11(2) of the Regulations the rma on to restore or refuse to restore the ap owe rul f justice requires that the discretion be exarcl ju d lithely, not In caprice. I should also add that must be exerdsed according to the rules mjea» and S^ce, and not according to secluded L That said, I think it worth noting that, where a pa ucces jy demonstrates that he/she was precluded from attendin re the court or tribunal for hearing or In compliance with certain orders by some reasons beyond their control and without transgression on their part, he/she is entitled to consideration by the said court or tribunal. However, that is far from saying that the court or tribunal must grant him/her the order; 10 sought, but if the court or tribunal erects to refuse to grant the orders so applied it must state explicitly, and specifically the reasons why the application or the reasons thereof is being rejected. In the instant case, there is no dispute that the appellant was not present on the date fixed for hearing. Howev^ij^as pointed out above, there is evidence from the rprnm^gjhat.-^^ stft a representative to inform the DLHT that hliiras flheoflKFllfuneral of his younger brother. Was this ad icient cause in terms of regulation 11(1) b eg ons. The answer to that lies in a persuasive dec! of preme Court in the case of Parimal v. V rb 1 see 545; Supreme Court of India At h9 Icient Cause" is an expression which has ^^^used in iarge number of Statutes. The eaning of the word "sufficient" is 'adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point ofa reasonable standard ofa cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there^^^ 11 was a want of bona fide on its part in view of the facts and circumstances ofa case or the party cannot be aiieged to have been "not acting diiigently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercisedjudiciously' [Emphasis is mine] Reverting to the context of the presen isfied that, standing from a viewpoint of rea b ndard cautious person, where party to proceeaili3s <e representative before a court or tribunal^fnrorm CO r tribunal that he/she could not attend da hearing because he is attending a fungal df^ig yiHig^other, unless there are reasons to the confBV/ tfljt is a'^^onstration of diligence on his or her part is context, it must be said that the applicant this was negli t and in fact he acted diligently. It would have different stayed quiet and never informed the DLHT, only to appear later and claim that he was at a funeral without any further proof. After all a passing or funeral of a member of family attracts different feelings and emotions to each and everyone. I am also aware that, both Land Appeal No. 403 of 2019 and Misc. Lan 12 Application No. 234 of 2019 were before Hon. C.T. Mnzava (Chairman). That should not have affected the Chairman's findings. In my view, this was an opportunity for the learned Chairman to exercise the highest standards of impartiality in exercise of his discretion. I am saying so because, having dismissed the appeal, failure to provide reasons for his decision to dismi^^ application seeking to readmit the appeal would, under^m^^rCiBBtance, attract lack confidence and mistrust tt^any r^5on®e person. All said and done that, considering the circumstances present by before me, what the appellant did wa or ough", in as much as it was necessary th on why he could not attend at the date fixed fg y view, asking for more would be asking a litK bit too F^^^^oregoing reasons, I would allow the appeal. The decision of the tribunal in Misc. Land Application No. 234 of 2019 is consequently set aside. In the result the dismissal order in Land Appeal No. 403 of 2018 is set aside and the appeal is thereby restored 13 In terms of section 42 of the Act, I order the appeal be heard with a new Chairperson, sitting with a new set of assessors. Given the duration of the appeal, I order that the same be determined within three(3) months from the date of remission of the records to, and receipt of this decision by, the tribunal whichever the earliest. Having resolved the appeal on my own as to costs. It is so ordered. DATED at M0R0GCiR6%is 2 JANUARY, 2022. 'S.M. KALUNDE JUDGE 14