lobikieki sairiau vs said seif 2023 tzhc 23448 20 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA LAND APPEAL NO. 80 OF 2022 (C/F Misc Application No. 35 of 2022 before the District Land and Housing Tribunal of Arusha at Arusha Originating from the decision of the Terrat Ward Tribunal in land dispute No.09 of 2022) LOBIKIEKI SAIRIAU................................................. APPELLANT VERSUS SAID SEIF............................................................ RESPONDENT JUDGMENT 30th October & 20th December, 2023 KAMUZORA, J. This appeal is intending to challenge the decision of the District Land and Housing Tribunal of Arusha in an application for execution No. 35 of 2022. Briefly, the respondent herein instituted land disputed before the ward tribunal of Terrat against the appellant herein. He was declared lawful owner of the disputed land and the appellant herein was ordered to give vacant possession of the land by demolishing the house he constructed in the disputed land. Following the decision of the ward tribunal, the respondent herein instituted Page 1 of 11 application No 35 of 2022 for purpose of executing the decision of the ward tribunal. The application was allowed by issuing order for vacant possession and court broker was appointed to execute the order. The appellant was not satisfied with the execution order hence brought the appeal on the following grounds: - 1. The chairperson of the district land and housing tribunal erred in law and in fact for determining the matter without availing the appellant an opportunity to be heard and as a result he pronounced a shoddy decision. 2. The chairperson of the district land and housing tribunal erred in law and in fact for determining the matter while the summons to the appellant was unduly served hence reached into a wrong decision. 3. The chairperson of the district land and housing tribunal erred in law and in fact for determining the matter without informing the parties the reasons for the re-assignment of the case from the trial chairperson. When the matter was called for hearing Mr. Richard Manyota appeared for the appellant while the respondent appeared in person parties opted to argue the appeal by way of written submissions and they both complied to the submissions schedule save for rejoinder submission. Submitting in support of the 1st ground of appeal that the chairperson of the district land and housing tribunal erred for determining the matter without availing the appellant an opportunity to be heard, the counsel for the appellant argued that Page 2 of 11 the breach of right to be heard is the violation against the cardinal principle of natural justice and abrogation of constitutional right. To him, the constitution guarantees basic right to be heard as enshrined under article 13 (6) (a) of the constitution of united republic of Tanzania. He insisted that failure to avail this right to any party to a case shall render the proceedings nullity. He referred famous case of Abbas Sherally & Another v. Abdul S. H. M. Fazalboy, Civil Application No. 33 of 2002 (unreported) where the Court said: "..... That right is so basic that a decision which is 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 is considered to be a breach of naturaljustice. " The appellant's counsel was of the considered view that, natural justice is not merely a principle of common law, but in this country, it has become a fundamental constitutional right. That, it was absurd for the trial tribunal when made a decision as prayed by the respondent without availing the appellant right to be heard. He insisted that failure to avail right to be heard for the appellant by the trial tribunal was purely a procedural error and that occasioned a miscarriage of justice which cannot be excused by the trial tribunal and determined the matter. The appellant's counsel further referred the case of M.B Business Limited Page 3 of 11 V Amos David Kasanda, Commissioner for Land and Attorney General, Civil Application No. 429/17 Of 2019, which cited the case of Independent Power Tanzania Limited V. Standard Chartered Bank (Hong Kong) Limited, Civil Revision No. 1 of 2009 [2009] TZCA 17, on the right to be heard as the court commented that no person shall be condemned unheard when it held; "... no decision must be made by any court of justice, body or authority, entrusted with the power to determine right and duties, so as to adversely affect the interested of any person without first giving him a hearing according to the principle of naturaljustice." [emphasis addedJ He therefore prayed that the trial tribunal proceedings and the decision thereon should not to be spared and both be declared nullity. In expounding the 2nd ground of appeal that the chairperson of the district land and housing tribunal erred in law and in fact for determined the matter while the summons to the appellant was unduly serve, the counsel for the appellant submitted that the appellant was not dully served with summons to appear to the trial tribunal and there was no proof of service. He referred Regulation 6 (3), (4) of the Land Dispute Court (The District Land and Housing Tribunal) GN. No. 174 which directs on service and argued that the respondent neglect to follow the procedures prescribed by the law in regarding to the service of the summons. That the Page 4 of 11 respondent has full knowledge of the appellant physical address and even address of the appellant's advocate. That the respondent also knew that the sale of the suit land was conducted at the village chairperson office but neglected to even serve the same to the said chairperson thus, it led to the non-appearance of the appellant to the trial tribunal and the shoddy decision was pronounced against the appellant. He therefore prayed for this honorable court to quash and set aside the decision of the trial tribunal with cost. On the last ground of appeal that, the chairperson of the district land and housing tribunal erred in determining the matter without informing parties the reason for the reassignment of the case, the appellant's counsel submitted that the 1st tribunal chairperson was Hon. G. Kagaruki but the case was reassigned to a new successor chairperson Hon. M. R. Makombe without giving out any reason for that re-assignment. He referred the case of Priscus Kimario Vs. Republic, Criminal Appeal No. 301 of 2013 (unreported) and insisted that failure to assign reason for the reassignment for taking over the dispute amongst the said chairpersons amounted to procedural irregularities. He also referred the case of Mariam Samburo Vs. Masoud Mohamed Josh & Others, civil appeal No. 109 of 2016 [2019] TZCA 541 to support that argument. In concluding, the counsel for the appellant prays that the decision of the DLHT be quashed set aside and the Page 5 of 11 appeal be allowed with costs. In reply, the respondent in the outset drew the attention of this court to competence of this appeal. He submitted that this Appeal intend to challenge the order in Misc. Application No. 35/2022 which is the Application for Execution filed in the District Land and Housing Tribunal for Arusha at Arusha seeking to execute orders arising from Shauri la Ardhi No. 9/2020 from Baraza la Ardhi la kata ya Terrat. He was of the view that, as per established principle of law and practice in our jurisdiction, no appeal can be preferred against an order for execution. That, the sole remedy for execution order is making an application for revision. He referred the case of Chacha Nyikongoro Vs. Ndege Kiseke Misc. Land Appeal No. 145 of 2020, High Court of Tanzania District Registry of Musoma (Unreported), where the court on its own motion raised the issue of competence of the Appeal as the same did emanated from the orders of execution and proceeded to struck out the same for being incompetent before the court. He also referred the case of Kelvin Rodney Zambo Vs. UAP Insurance Tanzania Limited (formally known as Century Insurance Company) quoted with approval in the case of Marwa Munge Vs John Rhoba Itembe, Land Revision No. 2/2021, High Court of Tanzania at Musoma (unreported) whereas the court was of the stand that no appeal can be preferred against an execution order. Page 6 of 11 The respondent further submitted that Section 38(1) of the Land Dispute Courts Act, cap 216 R.E 2019 provides for matters which appeals can be preferred from and execution is not among what one can Appeal from. He was of the view that, since this Appeal emanated from the orders for execution, its competence is questionable as the law is very clear that no appeal against orders for execution rather one can seek to revise the same. He thus implored this honorable court to make findings and hold that this appeal is incompetent before this court and the same be dismissed with cost. Responding to the grounds of appeal, the respondent submitted jointly for grounds No. 1 and No. 2 that the Appellant is seeking an order to nullifying the proceedings and the decision of the District Land and Housing Tribunal for Arusha at Arusha simply because the matter was determined without availing the Appellant the right to be heard and that the summons to the appellant was unduly served. The respondent argued that when Misc. Application No. 35/2022 was filed in the District Land and Housing Tribunal for Arusha at Arusha, summons was duly served to the Appellant (the judgment debtor by then). That, the appellant received the summons which was served to him personally via his ward Executive Officer on 15th March 2022 and he signed accordingly and a sworn affidavit was submitted to the Tribunal. That, on the 21st June 2022 when the matter was called Page 7 of 11 for hearing before honorable M.R Makombe, the Appellant for the good reasons known by himself did not bother to enter appearance hence the matter proceeded ex-parte against him. The respondent took note of Article 13(6)(a) of the Constitution, Regulation 6(3), (4) of the Land Disputes Court (The District Land and Housing Tribunal) G.N No. 174 of 2003, as well as the cited cases of M.B Business Limited and Abbas Sher ally and conceded to the position of law stated in those cases and provisions of law. He however argued that the same does not fit in the case at hand because, the court will avail a party a right to be heard if that said party would appear before the court after being summoned to appear. That, the Appellant ought to be present before the court when the matter was coming for hearing as he was duly served, received the summons and personally signed acknowledging receipt of the same. That, the process server who was the Ward Executive officer did swear an affidavit and the same was filed in the Tribunal. He maintained that the ex-parte order was entered following his refusal to enter appearance before the Tribunal. The respondent added that, it is a trite law that Courts orders have to be respected and adhered to referring the case of Tanzania Breweries Ltd vs Edson Dhobe & 19 Others, Misc. Civil Application No. 96/2000, High Court of Tanzania Page 8 of 11 at Dar Es Salaam (Unreported). On the last ground of appeal, the respondent argued that had the Appellant appeared before the Tribunal, he could have seen a public notice displayed in every corner of the Tribunal walls informing parties over a special session aiming at clearing the cases backlog whereas all fresh hearings including Misc. Application No. 35/2022 were placed before Honorable Chairperson M.R Makombe who was the chairperson brought for the said clearing session. That, since the Appellant was never present before the Tribunal, he could not have seen the public notice nor could he get the information about the said special session. In concluding, he prays for this Appeal to be dismissed with cost for lacking merit as it is only a delay tactic engineered by the Appellant barring the Respondent from recovering his land through Execution Process. Since issue of competence of the appeal which touches the jurisdiction of this court in determining this appeal was raised by the respondent, I called the appellant's counsel to address the court on the competence of the appeal, addressing the court, Mr. Richard Manyota, counsel for the appellant conceded to the respondent argument that under Section 38(1) of the Land Dispute Courts Act, cap 216 R.E 2019 the remedy available for a party who is aggrieved with execution order is revision and not appeal. He therefore prayed for this court to Page 9 of 11 struck out the appeal without costs since they conceded to the respondent's concern immediately. Section 38 (1) of the Land Disputes court Act, Cap 216 read: - "Any party who is aggrieved by a decision or order of the District Land and Housing Tribunal in the exercise of its appellate or revisional jurisdiction, may within sixty days after the date of the decision or order, appeal to the High Court:" As well submitted by the respondent and conceded by the counsel for the appellant, the above provision allows appeal to the High Court from the decision which the DLHT is excising revisional or appellate jurisdiction. In the matter at hand, the decision challenged as captured above emanates from execution order hence, not covered by the above provision. However, it is well covered under section 41 (1) of the same Act which read: - "Subject to the provisions of any law for the time being in force, all appeals, revisions and similar proceeding from or in respect of any proceeding in a District Land and Housing Tribunal in the exercise of its original jurisdiction shall be heard by the High Court." From the above provisions and authorities cited by the respondent; Chacha Nyikongoro Vs. Ndege Kiseke (supra), Kelvin Rodney Zambo Vs. UAP Insurance Tanzania Limited (formally known as Century Page 10 of 11 Insurance Company) (supra) and Marwa Munge Vs. John Rhoba Itembe, (supra) which I subscribe therefrom, this court finds this appeal incompetent and the consequence is to strike it out. I however do not agree with suggestion by the appellant's counsel to waive costs because, the issue of competency of the appeal was raised by respondent who also had already incurred costs in filing submission and appearing when the matter was called in court. I therefore strike out the appeal with costs. DATED at ARUSHA this 20th December, 2023 JUDGE Page 11 of 11