20170929 TZHC Mwanza2

G ~-- IN THE HIGH COURT OF TANZANIA (MWANZA REGISTRY) AT MWANZA MISCELLANEOUS LAND CASE APPEAL N0.58 OF 2015 (Arising from the decision of the District Land and Housing Tribunal of Mwanza in Land Appeal No. 112 of 201~ Original Ward Tribunal of Igogwa Ward in Application No. 26 of 2014) MAGUDI MACHIBULA @· KUMALIJA .............................. APPELLANT VERSUSl PASCHAL NTUNGWA (Administrator of the Estate of the late Daniel N. Inongu) •••••••••••••••••••••••••••• ••••••••••••••••• RESPONDENT Last Order: 19/07/2017 Judgment: 29/09/2017 JUDGMENT MAKARAMBA, J.: The Appellant, MAGUDI MACHIBULA@ KUMALIJA, has brought the instant appeal the subject of this Judgment to contest the decision of the District Land and Housing ~ribunal of Mwanza in Land Appeal No. 112 of 2014 dated 22/01/2015 before Hon. Sillas, J., Esq Chairman on three grounds. I propose to traverse the grounds of appeal in the course of this Judgment. The Appellant has prayed that, the appeal be allowed with costs and the proceedings, judgment and order of the District Land and Housing Tribunal be quashed. The background to this appeal briefly is that, in 2014 the. Respondent, DALAHILE N. INONGU, brought a suit against the Appellant MAGUDI MACHIBULA @ KUMALIJA before the Igongwa Ward PageloflO ~ Tribunal within Ngudu-Kwimba District in Land Case No. 26 of 2014, claiming for recovery of clan land, which ended in favour of the Respondent. The Appellant was dissatisfied with the decision and appealed it before the District Land and Housing Tribunal for Mwanza at Mwanza in Appeal No. 112 of 2014. On 05/11/2014, the matter was s·cheduled for mention and the Appellant prayed for leave to file the amended the grounds of appeal; which prayer the Tribunal duly granted. On the same date, that is, 05/11/2014, the Appellate Tribunal ordered a call of the original records be issued and that the matter to come for mention on 22/01/2015. On that date, that is, 22/01/2015,. the matter came for mention in the presence of both parties. The Appellant told the Tribunal that, lie was not ready to pursue the appeal on that day. On the other hand, the .Respondent prayed that, the appeal be dismissed for want of prosecution because the Appellant did not want to pursue it, which prayer the Tribunal granted by dismissing the appeal for want of prosecution. The Appellant is aggrieved by the dismissal Order and has come before this Court on appeal and hence this Judgment. In prosecuting the appeal, Mr. Mutongore, learned Advocate appeared for the Appellant. The Respondent, Paschal Ntungwa, the Administrator of the estate of the late Dalahile N. Inongu, appeared in person and fended for himself unrepresented. In the first ground of appeal, the Appellant avers that, the learned Chairman of the Tribunal grossly erred in law and fact when he dismissed the appeal for want of prosecution in the presence of the Appellant. Page 2 of 10 ~ . . :=:& ........._ h :c:r-;--:~·· • et· ,-~· 5 • i"t.i..-w-:,-&1 I I l ...' I I ·i 0 •-l l Submitting in chief on the first ground of appeal, Mr. Mutongore <i learned Counsel for the Appellant stated that, the learned· Chairman grossly erred in law and fact when he dismissed the Appellant's appeal for Vyant of prosecution while the App.ellant was before the Tribunal as the Proceedings ., dated 22/01/2015 reveal. According to Mr. Mutongore, it was contrary to i 1 the law, practice and procedure to dismiss the Appellant's appeal for want j of prosecution while both parties had appeared before the Court for mention. In reply, the Respondent stated that, it was correct for the Chairman to dismiss the appeal since the Appellant, though present, refused to prosecute the appeal for reasons best. known to himself. The Respondent stated further that, the Appellant has not attended Court on several occasions even before the 22/01/2015. Since there were no sufficient reasons given by the Appellant, there was no reason for the Chairman to adjourn the hearing to another day. In rejoinder, Mr. Mutongore stated that, the allegation that the Appellant had not attended Court on several occasions is not true and it was not the basis. of the learned Chairman to d1smiss the appeal for want of prosecution. Mr. Mutongore stated further that, the Respondent as Administrator of the estate of the deceased cannot argue about the presence or absence of the Appellant and whether or not the Appellant had given reasons for adjournment on 22/01/2015, which incidentally were not recorded because the deceased is the one who was ~ party. The Respondent (administrator) ~ Page 3 of 10 0 cannot argue about what transpired at the Tribunal on 22/01/2015 .J because he had not yet been made a party to the proceedings. In the second ground of appeal, the Appellant avers that, the learned Chairman of the Tribunal erred in law and fact when he decided to proceed with the hearing of the appeal on a date fixed for mention while awaiting the Ward's original record. Submitting on the second ground of appeal, Mr. Mutongore for the Appellant stated that, the learned Chairman erred in law and fact when he decided to proceed with the hearing of appeal on 22/01/2015, a date which was fixed for mention ordered by .the same Chairman on 05/11/2014. Mr. Mutongore submitted further that, a reply by the Appellant that, "I am not ready to pursue the appeal today', did not have the connotation of abandoning or failing to prosecute the appeal. Since the reason of not being ready to pursue the appeal on that particular day is not recorded neither did the learned Chairman ask the Appellant why w·as he not ready to pursue the appeal on that day, the act of banking on the reply of the Appellant without asking why he so replied, left a lot to be desired, which consequently occasioned injustice to the Appellant by denying him the fundamental right to be heard. In reply, the Respondent stated that, since there is no specific rule which states that when a case is fixed for mention it cannot be heard on that particular date, the Hon. Chairman was correct in dismissing the same. The Respondent stated further that, the Proceedings· do not disclose that the Appellant was not feeling well or sick as submitted by the Appellant. Page 4 of 10 ~ ,. t:··1 'l:.::,J \..J According to the Respondent, there were no sufficient reasons for adjournment. In rejoinder, Mr. Mutongore stated that, after amending the Petition of Appeal a copy of the same had not yet been served upon the Respondent ( deceased) for which reason the matter was fixed for mention awaiting for other administrative matters such as waiting for the original file from the Ward Tribunal and service of the amended Petition of Appeal to the Respondent before hearing date could be fixed. In the third ground of appeal, the Appellant avers that, the learned Chairman erred in law and fact when he refused to adjourn the hearing on the application made by the Appellant that he was not feeling well which turned out to be a refusal to prosecute the appeal. Submitting on the third ground of appeal, Mr. Mutongore for the Appellant stated that, the learned Chairman erred in law and fact when he refused to adjourn the hearing after the application made by the Appellant to adjourn the appeal on that day as he was not feeling well, which turned out to be refusal to prosecute the appeal. The Hon. Chairman misdirected himself in holding that the Appellant's statement of not being ready· to pursue the appeal on that day meant that he did not want to pursue it. In support of his argument, Mr. Mutongore referred this Court to the provisions of Regulation 15 of the Land Disputes Courts {the District Land and Housing Tribunal} Regulations/ 2003 that; "The Tribunal ma½ where an application is left unattended by an applicant for a period of three months/ (a) Dismiss the application for want of prosecution. // Page 5 of 10 Mr. Mutongore surmised that, it was wrong for the learned Chairman to force the Appellant to be heard on a date fixed for m~ntion. Mr . . Mutongore prayed that the appeal be allowed with costs and the Proceedings of the District Land and Housing Tribunal which denied the Appellant an opportunity of being heard on an appeal from the Ward Tribunal be quashed. That, this Court be pleased to order a rehearing of the appeal by the District Land and Housing Tribunal. In reply, the Respondent stated that, the Land Disputes Courts {The District Land and Housing Tribunal) Regulations/ 2003 cannot apply in this particular case becawse the same applies to applications originally filed before the District Land and Housing Tribunal not appeals originated from the Ward Tribunal. The Respondent surmised that, the Appellant ought to have applied to set aside the ei_n~\ dismissal order:"-not to appeal to the High Court. The Respondent prayed that the appeal be dismissed as there are no sufficient reasons. In rejoinder, Mr. Mutongore referred this Court to the decision in the case of Jeremia Gunda and Mhongolo Progressive Secondary School v. Sangijo Rice Millers Company Limited {unreported} at page 3 where Hon. Mziray, J., stated inter alia that; "Whether it was an irregularity to proceed with the suit on a mention date.... Normally mention date is fixed by the Court for orders hence it is purely an administrative exercise which will not enable the Court to proceed with the hearing of the case. If for Page 6 of 10 instance the Court opts to proceed with the hearing of a case on a date set for mention then that hearing will not be fair and definitely will prejudice the other party. .. // Mr. Mutongore submitted further that, when the learned Chairman decided to proceed with the hearing on a date set for mention that was an error on the face of the record. Mr. Mutongore went on stating that, since the learned Chairman made an order dismissing the appeal for want of prosecution unsupported by any legal provision, the Appellant had a right to appeal to the High Court as he could not apply to set aside a dismissal Order for want of prosecution before the same Tribunal as -he had not failed to appear or prosecute his appeal. On the respective arguments by both parties on the three grounds of appeal, this Court finds that, ·since both parties were present before the Tribunal on the date the matter was set for mention, the Hon. Chairman erred in dismissing the appeal for want of prosecution without assigning or recording any reasons to do so. In such a situation, it was pertinent for the Hon. Chairman to record the reasons for dismissing the appeal for want of prosecution for purposes of keeping proper records in case of any intended appeal or any other subsequent steps to be taken by an aggrieved party. In so far. as the Court record reveals, there are no reasons assigned to the decision by. the Chairman to dismiss the appeal for want of prosecution while both parties were present. It is on the Court record that, on 22/01/2015 the matter was scheduled for mention for purposes of ascertaining whether the amended Page 7 of 10 ~ IV 1 I grounds of appeal by the Appellant had been filed and served to the II ! Respondent, and also whether the original record from the Ward Tribunal ·1 had been brought to the appellate Tribunal for an appeal. Upon closely looking at the typed Appellate Tribunal proceedings dated 22/01/2015 at page 4, it was not recorded if the amended grounds of appeal were filed before the Tribunal and a Copy of the same was served to the Respondent and a reply to the same has been made and accordingly filed. It was also not recorded if the original records were already brought to the Tribunal 1 for the purposes of scheduling the appeal for hearing. It is even not recorded if the Appellant refused to prosecute his appeal. In the circumstances, it was unfair for the appellate Tribunal to proceed with the hearing of the appeal, unless it had been moved by consent from both parties, which was not the case instantly. As Mr. Mutongore, rightly mentioned, a mention date is purely an administrative scheduling date and hence the Tribunal was enjoined to take administrative steps including fixing a date for the hearing of the appeal. Unfortunately, the Tribunal failed to exercise such duties, and found making the impugned orders. In my considered opinion, it could not by- any stretch of imagination, be taken that the mere fact that the Appellant had not been attending the Tribunal on several occasions would suffice as the reason for the Appellate Chairman to dismiss the appeal for want of prosecution while both parties were present. Furthermore, the_ mere fact the Appellant is recorded to have stated that "I am not ready to pursue the appeal today', this, could not with due respect be interpreted to mean that the Appellant was not interested to prosecute the appeal. The prayer by the Appellant only meant .lk1 Page 8 of 10 that he was no prepared to proceed with the appeal on that day, and given • what previously had transpired before the Tribunal and that the matter was set for mention and not hearing, it was not open for the Chairman to dismiss the appeal. · Much as Regulation 15 of the Land Disputes Courts (the District Land and Housing Tribunal) · Regulations, 2003 is not inapplicable for appeals as rightly stated by the Respondent, but in a whole the scales of justice tilted more in favour of the Appellant. The argument by the Respondent that the Appellant should have applied before the Tribunal to set aside its dismissal order and not to prefer an appeal, is seriously wanting for the simple reason that, the Chairman having wrongly . dismissed the appeal for want of prosecution in the presence of both parties, this threw the Appellant off the scales of justice for he could not have any reasons to adduce in support of his application for restoration of the dismissed appeal. The only avenue left for the Appellant was to pursue the dismissal order by way of appeal, as the Appellant has rightly done. It is for the above reasons this Court finds that, the appeal has merits. It is. hereby allowed. The Proceedings and Orders by the District Land and Housing _ Tribunal of Mwanza in -Land Appeal No. 112 of 2014, dated 22/01/2015 are nullity and accordingly are hereby quashed. The Court record shall immediately be remitted to the District land and Housing Tribunal of Mwanza for the Tribunal to hear the appeal between the parties and make a decision_ thereof. Page 9 of 10 -f l !i j ·considering the circumstances of this appeal, particularly given that, the errors pointed out in this Judgment were of the District Land and ' Housing Tribunal of Mwanza, I shall not make any order as to costs. Each party shall therefore bear its own costs in this appeal. It is so ordered. ......... . Page 10 of 10