kasim selemani lukwele vs zaidan halifa mwinyishehe 2022 tzhc 15698 30 november 2022

f « IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB-REGISTRY) AT MOROGORO LAND APPEAL NO. 41 OF 2021 (Originating from Land Appeal No.8 of 2020, in the District Land and Housing Tribunal for Morogoro, at Morogoro) KASIM SELEMANI LUKWELE APPELLANT VERSUS ZAIDAN HALIFA MWINYISHEHE RESPONDENT JUDGMENT 30^ November, 2022 CHABA, J. This is a second appeal from the District Land and Housing Tribunal for Morogoro, at Morogoro (the DLHT). Briefly, the facts of the case are to the effect that: In Tawa Ward Tribunal, vide Land Case No. 8 of 2020, the appellant claimed that, the respondent, Zainab Ramadhan who was the defendant/respondent at the trial Ward Tribunal and her fellow Zaidan Arifa trespassed into his land. After full trial, the trial Ward Tribunal decided in favour of the appellant by declaring him as the lawful owner of the disputed suit land. Aggrieved by the findings, decision and orders of the trial Ward Tribunal, the respondent, Zaidan Page 1 of 15 Halifa Mwinyishehe successfully appealed to the District Land and Housing Tribunal for Morogoro, at Morogoro, in Land Appeal No. 8 of 2020. Aggrieved by the finding and decision of the DLHT, the appellant preferred this appeal in this Court armed with the following grounds of appeal: - 1. That, the trial Chairperson erred in law and fact by raising new issue without giving parties the right to be heard on that new issue, 2. That, the trial Chairperson erred in law and fact by entertaining a matter which brought by a person who had no capacity to sue or locus stand, 3. That, the trial Chairperson erred in law and fact in his assessment of the evidence tendered and as a consequence thereof, its judgment and orders are contrary to law and against the weight of evidence. When the matter was called on for hearing on 29^^ March, 2022, the appellant enlisted the legal services of Mr. Hassan Nchimbi, the learned advocate, whereas the respondent enjoyed the services of Ms. Kay Zumo, also learned advocate. Mr. Hassan Nchimbi prayed this Court to allow the parties to argue the appeal by way of written submissions. I allowed and granted his prayer, and the parties proceeded to dispose of the instant appeal by the way of written submissions. Page 2 of 15 It was the counsel for the appellant who started to kick the ball rolling, by firstly praying the Court to allow him to adopt the Memorandum of Appeal and the same be read as part and parcel of his written submission. Submitting in support of the first ground, Mr. Nchimbi highlighted that, the trial Chairperson while he was in the process of composing the judgment pertaining to Land Appeal No. 8 of 2020, he raised a new Issue of adverse possession in connection to the land in dispute. He submitted further that, the issue of adverse possession was never raised neither in the trial Ward Tribunal nor in the District Land and Housing Tribunal by either of the parties, but the Chairperson suo raised it while composing his judgment. To add more weight to his complaint, the learned counsel referred this Court to the case of CHRISTIAN MAKONDORO V. INSPECTOR OF GENERAL POLICE & ANOTHER, (CIVIL APPEAL 40 OF 2019) [2021] TZCA 30 (22 FEBRUARY 2021); tanzlii.org.tz. (unreported), wherein the Court at p.5 stated the following: - "/r is cardinal principle of naturaljustice that a person should not be condemned without being heard. As such, the Court in a number of decisions has emphasized that the courts should not decide on a Page 3 of 15 matter affecting the rights of the parties without giving them an opportunity to express their views before a decision is made by the court." He added that, similar position was discussed in the case of SHERALLY AND ANOTHER V. ABDUL FAZA BOY, CIVIL APPLICATION NO. 33 OF 2002, CAT (Unreported), where the Court observed: - "The right ofa party to be heard before adverse action or decision is taken against such party has been stated and emphasized by the courts in numerous decisions. That the right is no basic that decision arrived at in violation of it will be nullified even if the same decision would have been reached had the party been heard, because the violation in considered to be a breach ofnaturaljustice". The learned counsel concluded that, this ground of appeal involves a serious violation of Article 13 (6 )(a) of the Constitution of the United Republic of Tanzania 1977 (As amended from time to time), hence prayed for this Honourable Court to nullify the decision of the trial DLHT and allow this ground of appeal with costs. As regards to the 2"'^ ground, the learned counsel argued that the respondent herein filed a case in the trial Ward Tribunal while she had no locus to institute the matter. He submitted that, since the respondent was not an administratrix of the estates of her late father who passed Page 4 of 15 away in the year 2003, at the material time had no locus stand to sue the appellant. He stated further that, since the respondent in the trial Ward Tribunal and the DLHT claimed that, the land in dispute belongs to her late father, and yet no any initiatives were taken concerning administration of the estates of the late her father, he was of the view that, this point alone suffices to nullify the entire proceedings of the lower tribunals since the law as it now stand is that, a claim for and on behalf of the deceased may only be instituted by the administrator or administratrix of the deceased's estates. To fortify on this point, he referred this Court to the case of KARIMU SHAIBU V. MUSSA HALFANI AHATISHA, MISC. LAND CASE APPEAL NO. 17 OF 2015 HCT AT MTWARA (unreported), wherein Twaib, J.,(As he then was) had the following to state: - "Given my finding on the issue ofjurisdiction and locus standf the proceedings, decisions and of both lower tribunals cannot be left to stand. They are accordingly nullified". In relation to the third ground, the learned counsel pointed out that, there is serious violations of section 23 (2) of the Land Disputes Courts Act [Cap. 216 R. E, 2019], which requires the assessors to give out their opinion before judgment, that when the matter came for assessors Page 5 of 15 opinion, the assessors who were supposed to read out their opinions were not present. Instead, the opinions were read by the Chairperson himself which is contrary to the principles of law as it was underscored in the case of DORA TWISA MWAKIKOSA V. ANAMARY TWISA MWAKIKOSA, CIVIL APPEAL NO. 129 OF 2019 AT MBEYA (unreported), at p.lO. He further contended that, the judgment is contrary to the law because the trial Chairperson failed to assign a reason for differing with the opinions of the assessors contrary to the provisions of section 24 of the Land Disputes Courts Act (supra). Based on these anomalies, he prayed the Court to nullify the judgment, as it was decided in the case of ZUBEDA HUSSEIN KAYAGALI V. OLIVA GASTON LUVAKULE & ANOTHER, CIVIL APPEAL NO. 312 OF 2017, CAT - TABORA at p. 10. The learned counsel continued to elaborate further that, the Hon. Chairperson failed to evaluate the prayers of the respondent as for the matter to be tried de-novo. On the contrary, he declared the respondent as a lawful owner of the land in dispute. According to Mr. Nchimbi, the Hon. Chairperson acted on matters in which he could not have acted upon, and failed to take into consideration matters which he should have made and acted upon as it was held in the case of MBOGO AND ANOTHER V. SHAH [1968]1EA 9. ^ Page 6 of 15 He concluded by praying intervention of this Court to cure the miscarriage of justice done by the Hon. Chairperson in relation to the judgment delivered by him. He therefore, prayed the Court to allow this appeal with costs and the appellant be granted any order or further relief(s) which this Court may deem fit and just to grant. Responding to the above submission, Ms. Kay Zumo, learned counsel for the respondent, began with the first ground where she submitted that, there was no new issue to be determined by the parties. The DLHT did not find it to be new, since it was in the record of the proceedings of the trial Ward Tribunal, hence the Hon. Chairman could not pretend that, the question of adverse possession was not before him just because no issue was framed. To back up the propositions, Ms. Kay Zumo cited the case of STELA TEMU V. TANZANIA REVENUE AUTHORITY, CIVIL APPEAL NO. 72 of 2002 CAT AT ARUSHA (unreported). In this case, the Court was faced with a similar situation and in the course of determining the matter, it observed inter-alia \hat\ - "An issue of defamation was contained in ttie pieadings and the evidence on it, the triai court was right to make finding. ". She also cited the case of ELISA MOSSES MSAKI V. NGATEU MATEE [1990]TLR,90 to reinforce her argument. In this case, the Court held: Page 7 of 15 "The law is very dear that the Appellate Court will only look into the matter which came up into and were considered and decided by the trial Tribunals but not on the matters or issues which were neither raised nor decided or tested or considered by the Tribunals beiow." She concluded that, the DLHT did not come out with a new issue suo motu which needed to be addressed by both parties, rat2her the respondent gave evidence in connection with the matter at trial, and the records exposes to that effect (shows the same). In her view, the DLHT was right to make a finding on it even though it was not among the framed grounds of appeal. On the 2"^ ground, which revolves on the issue of locus stand, the learned counsel contended that, the issue was not raised at the first appellate DLHT. Thus, this Court being the second appellate Court, cannot entertain new ground of appeal which was not raised by appellant at the first appellate tribunal. To buttress her contention, the learned counsel referred this Court to the case of HALFANI CHARLES V. HALIMA B. MAKAPU & JUMA S. MAKAPU, MISC. LAND APPEAL NO. 85 OF 2021 which emphasised on the issue. She further contended that, there is no point of law to be adjudicated by this Court since the records clearly shows that the Page 8 of 15 appellant is the one who sued the respondent and her mother one Zainab Ramadhan at the Tawa Ward Tribunal and not otherwise. As regards to the third ground, Ms. Kay Zumo submitted that, the appellant has come up with a new ground of appeal concerning the violation of sections 23(2) and 24 of the Land Disputes Courts Act [Cap. 216 R. E, 2019] which was not raised in his petition of appeal. According to her, that was improper as the appellant's counsel had an opportunity to seek leave before this Court to amend the petition of appeal and add a new issue. She, therefore prayed for this ground to be disregarded by the Court. To bolster her argument, she cited the case of SALUM ABDALLAH CHANDE t/a RAHMA TAILORS V. THE LOANS AND ADVANCES REAKIZATION TRUST (LART) AND 2 OTHERS, CML APPEAL NO. 49 OF 1997 (unreported), wherein it was heid: - 'We think it is dear that once pieading has been fiied, they can oniy toe altered or amended with the ieave of the court. The court will set the parameters within which the alteration or the amendments wiii be made, hence the manner and terms which ensure Justice to the parties". In rejoinder the learned counsel for the appellant mainly reiterated what he submitted in chief and insisted that, a decision of the DLHT Page 9 of 15 should be based on the issues framed in consultation with the parties and that, failure to do so, it results in miscarriage of justice. On the issue of locus stand, the learned counsel stressed that, it is more questionable since in the trial Ward Tribunal the respondent asserted that, she inherited the land in dispute from her deceased's father, but he failed to present the letters of administration so as to establish her locus standi before the trial Ward Tribunal. Mr. Nchimbi ended to submit by praying the Court to intervene and cure the miscarriage of justice done by the Hon. Chairperson in relation to the judgment delivered by him by allowing this appeal with costs and grant the appellant any other relief(s) that this Court deems just and fit to grant. Having summarised the rival submissions from both sides, and upon carefully scrutinized the records from the lower tribunals, I am now in a position to determine this appeal. The main issue calling for determination is whether or not this appeal is meritorious. In the course of determination, I will attempt to answer the grounds of appeal in seriatim. Starting with the first ground, the appellant's counsel complained that the Hon. Chairperson determined the new issue regarding adverse Page 10 of 15 possession without affording the parties with the rights to be heard on the new issue. It is indisputable fact that, before the DLHT's, specifically at page 2 of the typed judgment, three issues were framed for determination, to wit: - 1. That, the Ward Tribunal erred in law and fact In reaching Its decision in favour of the respondent without evaluating the evidence on record. 2. That, the Ward Tribunal erred in law and in fact by failure to include the evidence that were presented by the witnesses which was very substantial in renderingjustice. 3. That, the Ward Tribunal erred in law and fact by Including evidence that were not adduced in the tribunal. I had ample time to read, examine and travel through the first appellate judgment of the DLHT particularly at page 3 and the trial Ward Tribunal as well. What I observed is that, the Hon. Chairperson determined an issue that was not among the issues framed by the DLHT in consultation with the parties themselves. In this regard, he was required, and so duty bound to determine the issues framed by the parties. If at all he was satisfied, that, the issue of adverse possession was one of the important issues to be addressed by the court, then as the law requires, he was supposed to involve the parties and take them Page 11 of 15 through such a new issue and Include the same to form part and parcel of the issues framed for determination. On scrutiny of the parties' rival submissions in line with the evidence on records, I fully subscribe to the submissions made by the appellant's learned counsel that, the DLHT entered into an error and skipped the vital procedural requirement which renders its decision a nullity. On this facet, I have borrowed the wisdom in the case of SCAN- TAN TOURS LIMITED V. THE REGISTERED TRUSTEES OF THE CATHOLIC DIOCESE OF MBULU, CIVIL APPEAL NO. 78 OF 2012, (unreported) wherein the CAT held: - "... when an issue being introduced is so pivotal to the whole case and would form a basis for the decision of the trial court, it is pertinent that the parties should be given a chance to address the Court on the new issue" Based on the above authority, it is clear that a decision likely to adversely affect the rights of parties shall not be made without including an issue for determination at the beginning of hearing the case. On reviewing the typed judgment of the DLHT, I have noted that, the first appellate tribunal proceeded to determine the appeal based on the new raised Issue premised on a point or ground of adverse Page 12 of 15 possession. It Is my considered view that, the DLHT's act in determining the suit basing on the said issue without affording the parties with the rights to be heard is the serious irregularity. In PATROBERT D. ISHENGOMA V. KAHAMA MINING CORPORATION & 2 OTHERS, CIVIL APPLICATION NO. 172 OF 2016, CAT - MWANZA, (unreported), the Court heid among other things that: - ''It is settled that, the law that no person shall be condemned without being heard is now legendary. Moreover, it is trite law that any decision affecting the rights or interests ofany person arrived at without hearing the affected party is a nullity, even if the same decision would have been arrived at had the affected party been heard [See - JOHNMORRIS MPAKI VS. THE NBC LTD. AND NGALAGILA NGONYANI, Civil Appeal No. 95 of2013(unreported)]''. From the above excerpt, it follows therefore that, a decision or order made in contravention of the above principle leads to nullification of the whole proceedings as it was expounded In the case of EX-B,8356 S/SGT SYLVESTER S NYANDA V. THE INSPECTOR GENERAL OF POLICE & THE ATTORNEY GENERAL, CIVIL APPEAL NO. 64 OF 2014 (unreported) wherein the Court held lnter-lla\hdlt\ - 'The way the first appellate court raised twojurisdictionai matter Suo motto and determine them without affording the parties opportunity Page 13 of 15 to be heard has made the entire proceedings and judgment of the high court a nuiiity and we hereby declare so". In the present appeal, as stated earlier on, there Is no dispute that the appeal was decided relying on the new issue of adverse possession by the DLHT and the record reveals clearly that, the parties were not accorded with the rights to be heard, which renders the decision of the DHLT a nullity. Consequently, much as It requires, I nullify the judgment and decree In Land Appeal No. 8 of 2020, and the same are expunged from the records. I shall however, not labour on the remaining two grounds of appeal for obvious reason that, by so doing, that will be an academic exercise. As to the way forward, I order and direct that, the record or case file be remitted to the DLHT for Morogoro, at Morogoro before the same Chairperson for composition of a fresh judgment based on the framed and agreed issues, and after hearing the parties on the Issue raised suo motu. In the final event, this appeal Is meritorious and it Is hereby allowed to the extent of my findings with no order as to costs. I so order. DATED at MOROGORO this SO"' day of November, 2022. Page 14 of 15 6URT 0;c c 7: -f <J) M. J. CHABA LU JUDGE 30/11/2022 Page 15 of 15