Jumanne Ally v Rukia Mohamed

IN THE HIGH COURT OT THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF MANYARA AT BABATI LAND APPEAL NO 14324 OF 2024 (Originating from Land Application No. 28 of 2018 before the District Land and Housing Tribunal for Babati at Babati) JUMANNE ALLY KWEJI (Administrator of the estate of the iate IBRAHIM HOTI)...... ....................... .APPELLANT VERSUS RUKIA MOHAMED KAIRA (Administrator of the estate of the late MOHAMED KAIRA) ...................... . . RESPONDENT JUDGMENT 10th October & 28th November, 2024 KAMUZORA, J The appellant brought this appeal after his application was dismissed by the District Land and Housing Tribunal for Babati at Babati (herein referred to as the trial tribunal) under Regulation 13 (2) of the Land Disputes Courts (District Land and Housing Tribunal) Regulations, 2003, GN No. 174 of 2003 (herein to be referred to as the Regulations). The following are the grounds of appeal; 1. That, the Hon. Chairman erred in law and in fact to dismiss the application under Regulation 13 (2) of the Land Disputes Courts Page 1 of 7 (District Land and Housing Tribunal) Regulations, 2003, GN No. 174 of2003 on the first day while the case was fixed for two days. 2. That, the Hon. Chairman erred in law and fact in dismissing the application despite the fact that the applicantprayed forpostponing the application further knowing that the case was fixed for two days When the matter was called for hearing, parties opted to argue the appeal by way of written submissions. Mr. John Lundu filed submission for the appellant while Mr. Filemon Lameck Maige acted for the respondent. Submitting in support of appeal, the counsel for the appellant Mr. John Lundu pointed out that the hearing of the application was scheduled for two consecutive days on 07/05/2024 and 08/05/2024. That, the appellant's advocate was unable to appear on the first day for he was appearing before another chairman before Mbulu DLHT at Dongobesh. He referred the records showing that the appellant was before the trial tribunal with his witnesses but he was not ready to proceed with hearing as his advocate was not in attendance but still, his case was dismissed for non-appearance of his advocate under Regulation 13 (2) of the Regulations. He argued that, although the law allows the tribunal to take necessary action where there is non-appearance of an advocate, it was not appropriate for the trial tribunal to dismiss the application on the first day while it was scheduled for two days. He therefore prayed for the Page 2 of 7 appeal to be allowed by quashing and setting aside the dismissal order and the application be restored and heard on merit. In reply, the respondent's counsel Mr. Filemon Maige submitted that the hearing of the application was scheduled for two consecutive days because of it had already stayed pending for almost one year and two months without being heard. He referred the case of Robert Walusekhe Wasikana Vs. John Dianga Obaso (suing as guardian Ad Litem of Samuel Awour Tongo), [2016] eKLR on the requirement of the land cases to be determined speedily. He argued that the appellant's advocate defaulted appearance without good reason. That, as there is no proof that the advocate was appearing before higher court, his appearance before another DLHT cannot justify his absence for the case filed 2018. He added that the appellant was given a chance to proceed on his own but he refused to proceed with hearing. He insisted that the trial tribunal rightly dismissed the application under Regulation 13 (2) of the Regulations. He therefore prayed for the appeal to be dismissed with costs. I have keenly gone through the records and considered the submission by the counsel for the parties. Before going to the merit of the application I will discuss the essence of the provision of Regulation 13 which reads; Page 3 of 7 13, ~ (1) The parties to the proceedings may, during the hearing of the proceedings be represented by an advocate or any other representative. (2) Where a party's advocate is absent for two consecutive dates without good cause and there is no proof that such advocate is in the High Court or Court of appeal, the triabunai may require the party to proceed himself and if he refuses without good cause to lead the evidence to establish his case, the tribunal may make an order that the application be dismissed or make such other orders as may be appropriate. (3) Where a party's advocate is absent for the reason of attending the proceedings in the high court or court of appeal, the tribunal shall not believe any other evidence as a proof for being in the superio courts other than by producing summons to the advocate and cause list fro such courts. (4) The tribunal shall not have powers to set aside its own order made under sub-reagulation (2) and any aggrieved party may appeal to the High court (Land Division) The above provision was enacted to regulate advocates7 excuses not to appear and proceed with hearing before the DLHT. While the provision acknowledged parties7 right to legal representation, it is couched in a way that an advocate should not default appearance without good reason. The acceptable reasons for non-appearance of an advocate are well set under sub-regulation (2) that there must be proof that an advocate had good cause or is appearing before the High Court or Court of Appeal. The law Page 4 of 7 also directs the DLHT to require a party to proceed on his own where the advocate has defaulted and in case he refuses without good reason, the case can be dismissed. Sub-regulation (3) insists that, summons must be produced as proof where the advocate claims appearance before the High Court or Court of Appeal. Under sub-regulation .(4), a party who is aggrieved with the decision of the tribunal made under sub-regulation (2) can appeal to this court. Now turning to the matter at hand, the proceedings before the trial tribunal show that the matter was scheduled for hearing consecutively on 7th to 8th May, 2024. On the 7th May 2024, all parties were present save for the appellant's advocate one Mr. Lundu. The appellant informed the chairman that he had witnesses but he was not aware of why his advocate was not in attendance. He prayed for the adjournment of the case but such a prayed was objected by the defence side on account that it was a longtime case. The trial tribunal invoked the provision of sub-regulation (2) of the Regulations and required the appellant to proceed himself with the hearing. The appellant refused to proceed with hearing on account that he could not proceed on his own and the application was dismissed for non-appearance under sub-regulation (2) of Regulation 13. Now the question is whether there was sound reason for the trial tribunal not to dismiss the application as it did. On the reason advanced Page 5 of 7 by the appellant that his advocate Mr. Lundu was appearing before Mbulu DLHT at Dongobesh thus, he was unable to enter appearance, I agree with the learned advocate for the respondent that such reason is weak. The provision of regulation 13 (2) is clear that the acceptable reason is where the advocate is appearing before the High Cour or Court of Appeal and not before any other subordinate court or tribunal. The DLHT of Mbulu was not the superior court to the trial tribunal thus, such reason could not be considered to adjourn the case. On the argument that the case was schedule for two consecutive days thus could be adjourned to another date, I find such argument with merit. I say so because, the provision of sub-regulation (2) of regulation 13 allows the case to be dismissed where an advocate has not entered appearance for two consecutive days. There is no evidence that the appellant's advocate absconded for two consecutive days because, on 29/02/2024, Mr. Tadei Lister was holding his brief and on that date meaning that there was good reason of his absence. The case was then scheduled for hearing consecutively on 7th to 8tn May 2024. By, dismissing the case on 7th, May, 2024, the trial tribunal acted in a rush before verifying if the appellant's advocate absconded for two consecutive days without good cause. Page 6 of 7 Based on the above discussion, I find merit in this appeal and proceed to quash and set aside the order of the trial tribunal which dismissed the application under Regulation 13 (2) of the Regulations. The Application is hereby restored to be heard speedily by another chairperson with competent jurisdiction. The appeal is therefore allowed but in considering the circumstance in this case, I make no order as to costs. DATED at BABATI this 28th day of November, 2024. Page 7 of 7