lucas daniel adminisrator of the estates of the late daniel mtongwe vs tito daniel mtongwe administrator of the estate of the late mariam jumbe 2023 tzhc 19953 4 augus

H I G H C O U RT O F T H E U N I T E D R EP UB L I C O F TA NZA N I A ( I N T H E S U B R E G I ST RY O F K I G O M A } AT K I GO M A M I S C . LA N D A PP E A L N O . 3 5 O F 2 0 22 (Arising from Land Appeal No. 62/2007 of the District Land and Housing Tribunal for Kigoma and originating from Land Dispute No. 22/2006 of Kagera Ward Tribunal) LUCAS DANIEL (Administrator of the Estate of the late DANIEL MTONGWE ) APPELLANT VERSUS TITO DANIEL MTONGWE (Administrator of the Estate of the late MARIAM JUMBE) RESPONDENT Date of last O rder: 13/07/2023 Date of Judgem ent: 04/08/2023 JUDGEMENT MAGOIGA, J. This is an appeal against the judgment of the District Land and Housing Tribunal in Land Appeal No. 62 of 2007 arising from Kagera Ward Tribunal in original Land Case No. 22 of 2006. Unfortunately, this appeal has twice suffered orders of re-trials of the appeal by this court in 2012 and 2016 respectively. I find it imperative to understand its genesis; at Kagera Ward Tribunal, the respondent Mariam Jumbe (now deceased) sued the appellant LUCAS DANIEL (Administrator of the Estate of the late DANIEL MTONGWE in Lan~ Page 1 of 11 A p p lic a tio n N o . 2 2 o f 2 0 0 6 cl a im in g fo r a p a rce l o f th e lan d w h ic h sh e a lle ge d w a s g iv e n to h e r by h e r la te h u sb a n d , o n e , la te D an ie l M to n g w e o n 2 6 .6 .2 0 03 . Aft e r fu ll tria l, the tria l T rib u n al d ism is sed h e r cl a im a n d de cide d in favo u r o f th e a p p e lla n t. Agg rie ve d , th e resp o n de n t u ns u c ce ssfu l a p p e ale d to the D istrict Lan d a n d H o u s in g T ribu na l in lan d A p p e al N o . 6 1 o f 2 0 0 9 w h e re a fte r the hea ring the a p p e a l, th e fi rst a p pe lla te T rib una l on 9 /1 0 /2 0 09 d ism isse d the a p pea l w ith n o o rde r a s co sts. T h e re a ft e r, M a ria m Ju m b e (the Late ) lo d ge d a n a p p e al in th e H ig h C o u rt of Ta n za n ia at T a b o ra v id e M isc. La nd A p p e a l N o . 11 o f 2 0 1 0 . In th e sa id a p pe a l, th e H igh Co u rt , M r. W a m b a li, J. (as he then was) quashed and set aside the District Land and Housing Tribunal decision with directions that Land Appeal No 61 of 2009 be heard afresh by another chairman and assessors. Quite surprisingly and confusingly, the original Land Appeal No 61 of 2009 was numbered 62 of 2007 and it has been so since then. The new Land Appeal No.62 of 2007 before the District Land Housing Tribunal was heard by Hon. Vincent Ling'wentu, Chairman, who decided in favour of the respondent on 05.08.2014. Aggrieved, the appellant successfully appealed to this court vide Misc. Land Appeal No. 16 of 2015, whereby again the matter was ordered for ~ Page 2 of 11 re tia l a fr e s h b y H o n . M go n ja , J. (a s sh e th e n w as) be fo re a no the r ch a irm a n a n d se t o f asse sso rs o n 2 8 /1 0 /2 0 16 . La nd A pp e a l N o . 6 2 o f 2 0 07 w a s, thu s, he a rd b y H on . M w in y i, C h a irm a n a n d d ec ided o n 14 .0 9 .2 0 2 1 in fa vou r o f th e re s p o n de n t w h o in te rv e n e d as a d m in istra to r o f esta te o f th e la te M a ria m Ju m be . S inc e then , a lo t o f w a te r w e n t u n d e r th e b ridg e le a d ing to this a p p e a l n o t rele va n t h e re a s o f n o w . Ag g rie ved w ith the sa id de ci sio n o f the D istrict La nd a n d H o us ing T ribuna l da te d 14 .0 9 .2 0 2 1, th e a p pe lla n t a p p e a led to th is cou rt a rm e d w ith fiv e g rou n d s o f a p p e a l cou ched in the fo llo w in g la n gu a g e , n a m e ly :- 1. That the District Land and Housing Tribunal for Kigoma grossly erred in law and fact when it determined the matter in favour of the respondent without evaluating the evidence that adduced by the appellant and his six (06) witnesses whose evidence supported the appellant's claims. 2. That the District Land and Housing Tribunal for Kigoma grossly erred in law and fact when it ordered the matter to be disposed the way of written submission without afforded chances to the assessors to ask questions for clarification from the parties. Page 3 of 11 3. Th a t the judgem en t of the District Land and Ho using Tribunal is nullity as th e same was rea ched in fa vour of the resp on den t while the opinion of a ssessors are m issing in th e Judgemen t con tra ry to th e order m a de by Madam Justice MGONYA J. IN MISC. LAND CASE APPEAL NO. 16/2015 for the same matter. 4. That the District Land and Housing Tribunal for Kigoma grossly erred in law and fact when it gave the weight of documentary evidence on the side of the respondent without warning itself over the previous one which torn by one TITO DANIEL which proved that the suit shamba was mutually agreed between the parties that the same be a property of the deceased estate one DANIEL MTONGWE 5. That, since the respondent in his appeal at the trial District Land and Housing Tribunal for Kigoma has raised three grounds of appeal the trial District Land and Housing Tribunal for Kigoma misdirected itself when it raised an issue of suo moto which is not a point of law and is out of the grounds of appeal of the respondent at the said Tribunal and decided the matter in favour of the respondent without affording chance to the Appellant over the said issue and the same was not form party of the grounds of appeal. Hence, Judgement is nullity. Page 4 of 11 O n th e stre n g th o f a b o v e g roun d s , th e a p p e llan t p ra y ed th is c ou rt to a ll o w th e a p p e a l w ith cos ts b y e v a lu a ting th e w e ig h t o f th e a p p e ll a n t's e v id e n c e o n re c o rd a nd de cl a re th e s u it p ro p e rty is th e p ro p e rty o f th e la te DA N IE L M TON G W E , and in the alternative, the court to order trial denovo for the irregularity apparent on the face of the records on the judgement of Kigoma District Land and Housing Tribunal. When this appeal was called on for hearing, the appellant enjoyed the legal sevices of Mr. Sylivester Damas Sogomba, learned advocate, while the respondent was present unrepresented. Mr. Sogomba started by praying the court to allow him to consolidate the 1st and 4th grounds then 2nd and 3rd grounds and the rest to be argued seriatim which prayer was granted. Submitting on the 1st and 4th grounds of appeal the counsel for the appellant argued that the appellate tribunal failed to evaluate the evidence on record because of what he said that in the entire judgement no where it referred to what was said in the trial Tribunal. The learned counsel went on faulting the first appellate Tribunal's judgement that it did not base on evidence but on one documentary evidence which was not admitted but used to make a decision in favour of the respondent. ~ P a g e 5 o f 11 A cco rd ing to M r. S o go m ba , th e refo re, th e fi rst a p pe lla te T rib u na l's d e ci sio n lac ks m e rits fo r w a n t o f th e ba s is o f its d ec ision . H e w e n t o n p ra yin g th is cou rt to a llo w the a p p eal b a s in g o n the co n so lid a te d g ro u n d s 1 and 4. O n the 2 nd and 3rd grounds of appeal argued jointly, the learned counsel complained that the appeal was heard by written submission but that no where the assessors gave their opinion nor afforded an opporpotunity to ask questions for clarification. On issue of opinion of the assessors, the records is clear that no opinion of the assessors was given. That, even the judgement do not show that there were opinions nor were read before the parties. To support his argument, he cited the case of Adam A. Lema vs Kenedy Mwakateka, Land Appeal No. 04 of 2019 HC Mbeya where it was held that, the opinion of assessors to be read to parties before composing the judgement. The learned counsel for the appellant pointed out that, the said requirement was not done in this appeal, hence, fatal. Guided by the above holding, the learned counsel prayed this court to allow this appeal on these two consolidated grounds. On the 5th ground, Mr. Sogomba argued strongly that the chairman erred to raise an issue suo motto out of the grounds of appeal and determined the appeal. The counsel pointed out that, at first, there were 3 grounds but later he raised a new issue which parties were not afforded right to ~ P ag e 6 o f 1 1 be hea rd . M r. Sog o m b a argued that, this vitiated the w ho le jud ge m e nt fo r co nd e rm n ing pa rt ie s un he ard . To butress his stan ce, the lea rne d co u nse l cited the case Anzamen Maliki vs Rashid Hussein, Civil Appeal No. 16 of 2018 where the court was clear that any decision reached without hearing parties is a nullity and cannot stand. On the above reasons, it was the the learned counsel for the appellant's prayer that the appeal be allowed with costs or in the alternative this court be pleased to order re-trial and remit the file to the 1st appellate Tribunal for the appeal to be heard afresh. On the other hand, the respondent opposed the appeal by stating that the 1st appellate court did its job by evaluating the evidence on record. nd On the 2 and 3rd grounds, the respondent submitted that the opinions were read but the appellant was not a regular attendant of the proceedings. On the sth ground, the respondent submitted that, the ground is baseless because he had exhibit of how he got the disputed plot. He supported the st 1 appellate Tribunal's decision of asking question and answer as it did because they had addressed the same in writings. Ultimately, the respondent prayed this court to dismiss the appeal with costs. ~ Page 7 of 11 In rejo in de r, M r. S o go m b a re ite ra ted h is ea rlie r su b m issio n s in ch ie f th a t n o w h e re in the p ro ce e d ing s sho w ed th e a p pe llan t w a s n o t p re se n t. T he le a rne d coun se l in siste d o n e ffe ct o f th e g ro und ra ise d su o m o tto w ith o u t h ea ring o f the p a rt ies a n d u rg e d th is cou rt to a llo w th is a p p e a l. H a vin g ca re fu lly g o n e th ro ugh th e g round s a nd the su b m issio n fo r a nd aga in st th e a p pe a l, a n d afte r g o ing th rough th e evid e n c e o n reco rd b y the first a p pe lla te co u rts ' p ro ce ed in g s, I fi n d the cen tra l issue fo r d ete rm in a tio n of th is m a tte r is w h e th e r th is a p p ea l h a s m e rit o r n o t. In d ete rm in in g th is a p pe a l, I fi n d p e rt ine n t to d e al w ith tw o le g a l g ro u nd s st o n the lega lity o f th e im p u g ne d jud g e m e n t a nd th e 1 appellate Tribunal raising an issue suo moto without hearing parties, which if found merited suffices to dispose off this appeal without engaging to the other factual grounds. I have seriously considered the arguments and the record of appeal. I would wish to start with ground number five which I think suffices to dispose this appeal. In this ground, the appellant is challenging the first appellate Tribunal for formulating a ground suo motto and continue to write a judgement on it without affording an opportunity the parties to argue on it. On the part of the respondent, he replied that, the ground is baseless because he had exhibit of how he got the disputed plot. Without much ado, I agree with Mr. Sogomba that it is fatal for the court or any ~ Page 8 of 11 T rib u n a l to ra ise a n y issu e a n d co n tin u ing to d ec id e o n it w ith o u t h ea ring pa rt ies . It s e ffe c ts a re fa r rea ch in g a nd vitia ted th e w h o le ju d g e m e n t fo r it a m o u n ts to con d e rm n in g p a rt ie s u n h e a rd a g a in st the p rin cip le s o f na tu ra l juc tice . T h is is ve ry cl ea r a t pa g e 2 o f th e ty ped ju d g e m e n t (th o u g h the ju d g e m e n t h as n o p a g e n u m b e r) w h e reb y th e C h a irm an sta ted a s fo llo w s; "Baraza kwa kujielekeza lenyewe (suo motu) limeona kuw a kuna hoja ya muhim u ya kujadili ambayo wadaw a haw akuionqelea na pia inaweza kumaliza mqogoro huu na hakutakuw a na haja ya kujadili sababu nyinqine za rufaa kwa sababu ni dhaifu kumaliza mqororo huu ... " (Em phasis mine). 1. le ni nani mwenye uhalali wa umiliki wa eneo la mgogoro?" It is overt that the above quoted extract was done without affording the parties the rights to be heard. In my strong considered opinion, this was fatally wrong and vitiated the whole judgement. The right to be heard in our jurisdiction is fundamental that this court and the Court of Appeal of Tanzania have repeatedly even without citing case law that 'right to be heard is not only cardinal principal of natural justice but also a fundamental right constitutionally guaranteed under article 13(6) (a) of the Constitution of the United Republic of Tanzania as amended. For that reason, any decision arrived in contravention of it ~ Page 9 of 11 w ill n ot b e le ft to sta n d e v e n if the s a m e d e cisio n w o u ld h a v e b e e n reac he d h a d th e p a rty be e n h e a rd . S ee th e c a ses of Shule ya Sekondari Mwilamvya Vs. Kaemba Katumbu, Civil Appeal No.323 of 2021, CAT (Kigoma) (unreported), Abbas Sherally and another Vs. Abdul Sultan Haji Mohamed Fazalboy, Civil Appeal No.33 of 2002, CAT (Unreported). Now, with this legal ground found merited in this appeal, I find no need to consider other grounds raised for will be for academic and futile exercise as of now. In the event, I find merits in the fifth grounds of appeal. I allow this appeal and consequently, I find the proceedings and judgement of the pt appellate Tribunal a nullity for violation of right to be heard. Thus, I consequently exercise my powers under section 43(1) (a) and (b) of the Land Disputes Courts Act, [Cap 216 R.E. 2019] by revising and set aside the proceedings, judgement and decree of the District Land and Housing Tribunal of Kigoma and order that for the interest of justice, this case file be reverted back to DLHT of Kigoma to be heard before another competent chairman to try this suit. Given the age of this matter, I further direct that the appeal be given first track and be determined within a very short period possible. Page 10 of 11 T h e ch a irm an sh o u ld in de te rm in in g th is a p p e a l a ls o be a r in m ind th e d irec tio n s g iv e n b y th is c o u rt o n 08 / 0 3 / 2 0 1 2 b y H o n . W a mb a li, J (as then was) and by Hon. Mgonja, J (as she then was) on 28/10/2016 respectively. More so, I further direct that, the appellate Chairman should confine himself or herself to the amended grounds of appeal versus the evidence on record by the trial Tribunal. In the circumstances, and bearing in mind it is the appellate Tribunal which mishandled the proceedings by suo motto invoking matters which vitiated the proceedings, I order each party to bear his own costs in this appeal. Dated at Kigoma this 04th day of A .,-- JUDGE 04/08/2023 Page 11 of 11