20181218 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA MWANZA DISTRICT REGISTRY. AT MWANZA. MISC. LAND APPEAL NO. 66 OF 2017. (ARISING FROM LAND APPEAL NO. 87 OF 2016 AND ORIGINATING FROM LAND APPLICATION . NO. 14 OF 2016) MARWA GEORGE ........................................................ APPELLANT. VERSUS PARAZIA MWITA MAGORI ...................................... RESPONDENT. Date of last order: 11/12/2018. Date of Judgement: 18/12/2018. JUDGEMENT. MAGOIGA, J. - The appellant, MARWA GEORGE aggrieved by the. decision of the District Land and Housing Tribunal has come to this cou,rt by way of appeal armed with four grounds of appeal faulting the appellate tribunal couched in the following language: 1. That the first DLHTerred both in law and fact by failing to make proper analysis and_ appreciate the fact that the Ward Tribunal of Komuge had no mandate and excuse to conduct a case of the appellant ex-parte on .i the absence of the appellant who is also an appellant. 2. That the first DLHT erred in both law and facts by misdirecting itself that the Ward Tribunal of Komuge had no legal responsibility of 1 summoning the appellant herein who was an applicant before it so as to adduce his evidence. 3. That the first DLHT erred in both law and fact by failing to appreciate the reality that Komuge Ward Tribunal had purposely denied the _ appellant his right to be heard and defend the same and the said Ward Tribunal decided to inform the appellant only the day of judgement was to deliver so as to know its fate. 4. That the first DLHT erred both in law and fact by basing its findings and judgement on the false information that the appellant had refused to appear before the Ward Tribunal so as to adduce his evidence. The facts of this case are that the appellant filed a complaint before Komugwa Ward Tribunal over the disputed plot which was given application no. 14 of 2016. The respondent was dully served and the matter was heard inter parties but before delivery of judgement, it was found that one of the member of the Ward Tribunal do not know how to read and write. All parties including litigants agree that the proceeding should start afresh by taking the evidence de novo so that the new appointed member may participate from the beginning to enable him to understand the dispute and have an informed decision. When the new proceedings started the appellant decided not to 2 •\)participate and absented himself from the proceedings till the date of the 01;, ~· judgement was delivered in his presence on 18/07/2016. The appellant without any attempt to set aside the ex-parte judgement appealed to the DLHT of Tarime armed with one ground of appeal that he was denied right to be heard. The DLHT of Tarime dismissed his appeal with costs, hence this appeal. When this appeal was called for hearing the appellant was enjoying the legal services of Mr. Boniphace Sariro, learned advocate and was ready for hearing. On the other hand, the respondent appeared in person and was ready for hearing. Mr. Sariro informed this court that they preferred four grounds of appeal but he prays to abandoned grounds number 3 and 4. Sumbiting on ground number one it was the argument of Mr. Sariro that the the DLHT in its appellate jurisdiction failed to observe that the trial proceedings were marred by conti~uing with hearing in the absence of the appellant/complainant. The proper procedure according to Mr. Sariro was for trial tribunal to dismiss the application under section 13 (2) of the Ward Tribunal and not to hear the respondent ex-parte. He called this as irregular conduct that was blessed by 3 ··the DLHT and called for this court to intervene and put the record clear by u allowing this appeal on this ground. On his second ground of appeal it was the submission of Mr. Sariro that the first appellate DLHT was wrong to hold that the appellant was not supposed to be served with summons. According to him the appellant/complainant was supposed to be served with summons and is a legal requirement which is not optional at all. Mr. Sariro submitted that failure to serve it occasioned failure of justice in this matter. Eventually, it was the prayer of Mr. Sariro that the proceedings and judgements of the trial court be declared a nullity and be quashed and set aside with an order that the file be remitted back to Ward Tribunal for re-trial inter-parties on merits. On the other hand, the respondent opposed this appeal by submitting that the submission by the counsel for appellant are not true but the truth is that the appellant wrote the Ward Tribunal informing it that he is not ready to prosecute his ~pplication. Further submitting the respondent informed the court that the tribunal in its wisdom served him to attend the judgement and he came and signed after delivery of the judgement. The respondent further submitted that in 2005 his late brother one Patrick George sued her in the same Ward Tribunal over and the same plot and she was declared lawful 4 i ~ owner and no appeal was preferred to such decision ever since, she wondered after then she enjoyed peaceful enjoyment of the land only that in 2016 when this brother of the late Patrick is emerging to sue from the same family members. According to her this is unfair and unjust, she lamented bitterly.· According to the respondent the family of George are harassing her for no apparent reasons and he cried for justice to be done on this matter by dismissing this appeal with costs. In rejoinder, Mr. Sariro had nothing to reply and that marked the end of hearing of this appeal. The task of this court now is to determine the merits or otherwise of this appeal. I have carefully listened to the rival submissions of the parties in this appeal. I have equally traversed the entire proceedings of the trial and appellate lower tribunals and their respective judgements with a keen legal eye and mind and am of the considered opinion· that this appeal will partially succeed and partly failed as am going to demonstrate hereunder. My reasons for my holding are not far to fetch. One, it is true and as correctly submitted by the counsel for appellant that the correct procedure when the appellant 5 decided not to participate in his own application was for the trial Tribunal to dismiss the application and not to continue hearing the application ex-parte. This is in accordance to section 13 (2) of the Ward Tribunal Act, [Cap 206 R.E. 2002] which for easy of reference provides that: " (2) if on the date specified in the summons the complainant does not without reasonable cause, appear, the tribunal shall dismiss the complaint and it shall not subsequently be brought before it; but if the tribunal considers that the absence of the person complainant is due to a reasonable cause or if the person complained against is absent, the tribunal shall adjourn the hearing to some date which it may specify, and inform the appropriate authority of the absence of the person complained against." Perusal of the above provision of the law has a number of effects in the trial Ward Trib_unal where parties don't appear or one p~rty appears. These. are; one, if the complainant does not appear the effect is to dismiss the complaint. Two, the dismissed complaint for non-appearance of the complainant bars the complainant to re-open the matter again in the same tribunal. Three, for lawful cause shown before dismissal the tribunal shall 6 ~'adjourn the matter and issue summons through appropriate authority to u . inform the parties. This was not done in this case, instead the Ward Tribunal proceeded to hear the matter ex-parte in the absence of the complainant. This was wrong and highly irregular to my considered opinion and was against the spirit of section 13 (2) of the Ward Tribunal Act, [Cap 206 R.E 2002]. The effect is to exercise my powers under section 43 (1) (b) and declare the whole proceedings that emanated from that faulted procedure on 30/06/2016 nullity and the subsequent orders, and judgement of the Ward Tribunal are hereby set aside. The resultant immediate effect is that equally the proceedings, judgement and decree of the first appellate tribunal are. equally declared nullity as they stem from nullity proceedings. The first appellate tribunal was expected to have seen this faulted procedure and cure the effect thereof. The second ground of this appeal stand to fail because as seen above the tribunal in the circumstances could not serve the appellant who had by writing informed them of not attending the proceedings. This ground without much ado is with no merits at all. I dismiss this ground. The provisions of section 12 were complied with in this appeal and the appellant has himself to blame. 7 t• - However, this in the course of hearing this appeal the respondent drew the (0 · attention of this court that the instant appeal is a res judicata because she had a case with the brother of the appellant who is no more, but the family of George is harassing her while she was declared a winner. In the course of traversing the trial record I have truly come across the judgement of the Komuge which was delivered on 30/40/2007 between the respondent and one Patrick George Wambura. The counsel for appellant did not say anything on this serious allegation on this point when given time to rejoin when the i l respondent finished submitting. On that note, I hereby direct the District ,.,d i Land and Housing Tribunal Chairman of Tarime to investigate this matter and make proper orders to avoid the respondent from being harassed by one family on the same issue. The trial tribunal of Komuge to bring him a detail report of all matter concerning the disputed plot and the family of George for j I • I proper direction. . That said and done and for the reasons above I hereby partly allow the appeal to the extent I have explained above and partly disallow the appeal to the extent I have explained above. More so I direct that this case file be remitted back to trial tribunal to take necessary steps in accordance with the law as provided under section 13 (2) of The Ward Tribunal Act, [Cap 206 R. E 8 · 2002]. Furthermore, the Chairman of Tarime DLHT is directed to find out from the Ward Tribunal if the application is re judicata and take necessary steps to avoid wastage of time and resources of the parties. Given the nature of the findings of this court and given the fact that this application may continue at the trial tribunal I decline to give an order as to costs. Each party to bear his own costs. It is so ordered. Dated at Mwanza this 18th day of December. 2018. ~-_n1:-~ <f':\ ~ t~\ • 1 ...-iJrrrtt~IHll..,,---.J--.-___,, -.._ \· ) ~) S. M. MAGO GA J / ..,,,. JI 1 JUDGE ~ / · . ·,~~....,,,_..,,,...,/ 18 / 12/ 2018 I i I 'j 9