LAND APPEAL NO

IN T H E H IG H C O URT O F T H E UN ITED R EPUB LIC O F TA N ZAN IA ( K I G O M A S U B - R E G I S T RY )

AT K IG O M A LA N D APPEA L NO . 4472 O F 2024 KO LO N ELI FA R U SI HIG O K O (Administrator of the estate of the late Pharus Hogoko Kinono) A PPELLA N T

VERSUS M ELAN IA B A LAND A JE 15T R ESPO N D EN T V E D A S T O V IY IL IK O 2ND R ESPO N D EN T

NYO N Y O M BA ZA B U LO N I JRD R ESPON D EN T (Appeal from the ruling and drawn order of the District Land and Housing Tribunal for Kigoma at Kigoma) (M. V. Mwinnyi, Chairperson) Dated 25th day of March 2022 In (Miscellaneous Land Application No. 237 of 2021)

JU D G M EN T Date: 23/05 & 09/07/2024 N K W A B I , J .: This is an appeal against the ex-parte ruling of the District Land and Housing Tribunal for Kigoma in Miscellaneous Land Application No. 237 of 2021. In that ruling the district land and housing tribunal extended time within which the respondent would appeal out of time to it. That happened on 25/03/2022 when the tribunal extended the time for 45 days to lodge the appeal. Subsequent to that, on 20/09/2022, this Court granted the appellant an extension of time for 14 days to file an appeal against that ruling, hence 1 th is a p p e a l. In this a p pe a l th e a p p e lla n t is ch a lle n g in g th e p roce ed in g s a n d ru ling o f th e trib un a l o n fo u r g roun d s o f a p p ea l w hich , h o w e ve r, cou ld con ve nie n tly b e re duce d in to tw o w hic h a re : l. That, having decided to proceed with the hearing of the respondent's application ex-parte against the appellant, the District Land and Housing Tribunal for Kigoma erred in law and in fact in subsequently not informing the appellant of the date of delivery of the ex-parte ruling.

2. That, the District Land and Housing Tribunal for Kigoma erred in law and in fact in unilaterally and without good cause, changing the date of hearing from 17th March, 2022 to 3rd March, 2022 with a short notice summons issued on 1st March 2022 without regard to the inconveniences likely to surface on the part of the appellant's counsel and the appellant himself, a resident of Nyakitonto village, Kasulu district. It is due to the above grounds of appeal it is prayed that the appeal be allowed and the ruling be quashed and set aside. A new trial and a new set of assessors before another chairman be ordered, costs and any other reliefs deemed just and fit be provided. The pt respondent resisted the appeal through a reply to the petition of appeal. In it she disputed the grounds of appeal and prayed the appeal be dismissed with costs. 2 W h e n th e a p pe a l w a s ca lle d o n fo r hea rin g . T h e a p p e llan t w a s rep re se n ted b y M r. K a g a she , le a rn ed cou n se l w h ile th e pt respondent appeared in person. The 2nd respondent received the summons but did not appear. The 3rd respondent was served but said he was a mere tenant so, the case does not concern him. In submission in chief, nevertheless, Mr. Kagashe elaborated that the appeal is against the decision of the District Land and Housing tribunal for Kigoma district in Misc. Land application No. 237 of

2021 which originated from the Ward Tribunal Kumsenga Land Case No. 6 of 2020. He further explained that in the application, the respondents were heard ex-parte. They were seeking extension of time to file an appeal against the decision of the ward tribunal. He said he faults the District Tribunal because it had ordered hearing be done on 17/03/2022 inter-parties and their advocates. But the District Tribunal rescheduled to be heard on 03/03/2022 and the summons was issued on 01/03/2022. The appellant who was in Kasulu and no summons was received by him. Mr. Kagashe further expounded that the appellant failed to appear owing to him not being served, the matter was heard ex-parte. Mr. Kagashe beefed up that then, the district tribunal ought to have informed the 3 a p p e llan t th e da te o f e x -pa rte ru lin g . H e re fe rred m e to Cosmas Construction Co. Ltd v. Arrow Garments Limited [1992] T.L.R.

127. He then prayed for the ruling be set aside and parties be heard in accordance with the law. Mr. Kagashe also pressed for costs. In reply submission, the 1st Respondent stated that this appeal is unmerited because she has won the case in six different courts. She insisted that they used to attend both sides. When called upon to make a rejoinder submission, Mr. Kagashe told the Court that he had nothing to submit in rejoinder. I have had an ample time to consider this appeal on merit. Without much ado, this appeal has to succeed based on the 1st ground of appeal. It is glaring clear that when the tribunal decided to proceed ex-parte, it failed to notify the appellant on the date w hen that ex-parte ruling w as to be delivered. That omission to notify the appellant about the date of ruling is violative of the decision of the Court of Appeal, cited by Mr. Kagashe, in Cosmas Construction Co. Ltd v. Arrow Garments Ltd. [1992] T.L.R. 129 where it was underscored that: 'J'.l party who fails to enter an appearance disables himself from participating when the proceedings are 4 co nsequen tly ex-pert; but tha t is th e fa rthest extent he suffers. A lth o ugh the m a tter is th erefore considered witho ut any inp ut by him/ h e is en titled to kn o w th e fina l o utcom e. He has to be told when th e judgm en t is delivered so tha t h e rney; if he wishes, attend to take it as

certain consequences may follow. F/ In fine, I allow the appeal for the reason as indicated herein above. The ruling and drawn order of the district land and housing tribunal are quashed and set aside. I order that Miscellaneous Land Application No. 237 of 2021 be expeditiously heard inter parties before another chairperson of competent jurisdiction. I see no need to determine the 2nd ground of appeal because the first ground of appeal disposes the appeal. In the circumstances of this appeal, I order that each party to bear their own costs. It is so ordered. ~~~( J. F. NKWABI

JUDGE 5