LAND REVISION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND REVISION NO. 3470 OF 2024 (Arising from the Land Appeal No. 45 of 2018 before liaia District Land and Housing Tribunal in Judgment delivered by Honourable Mgulambwa, Chairperson on 22nd November, 2018) MARY ASANGALWISYE MWATONOKA....................................APPLICANT VERSUS DENKIS MARIKO........................... 1st RESPONDENT MICHAEL CHEGERE MATIKO........................................ 2nd RESPONDENT RULING 07th May & 28th June 2024 L. HEMED, J. The suit property is an unsurveyed piece of land located at Yangeyange, Msongola in Hala Municipality, Dar es Salaam. It is the same property which was subject matter in "SHAURI NA. 014/2018" before Msongola Ward Tribunal where, DENKIS MARIKO, the 1st Respondent herein won the said case against the 2nd Respondent herein MICHAEL CHEGERE MATIKO. In the said case, the 1st Respondent was declared owner of the said piece of land. The 2nd Respondent did not remain silent, he appealed to the District Land and Housing Tribunal for Hala vide Land Appeal No. 45 of 2018 to challenge the said decision. He was unlucky as his appeal ended up being dismissed with costs. The appellate Tribunal proceeded to order the 2nd Respondent and his agents to vacate from the suit premises. Following the appellate Tribunal's decision, the 1st Respondent who was the Decree holder, moved the same Tribunal wk/eMisc. Application No. 545 of 2019 to execute the decree. KABANGO GENERAL BUSINESS (T) LTD & TRIBUNAL BROKERS were assigned the task of executing the Decree. In the course of executing the said decree, it is when the Applicant herein, MARY ASANGALWISYE MWATONOKA emerged to challenge the same. The fact that she was out of time to apply for revision, the Applicant successful applied for extension of time through Mise. Land Application No. 629 of 2023 by the ruling delivered on 14th February 2024. Immediately thereafter, the Applicant presented the instant application under section 43 (1) (b) of the Land Disputes Courts Act [Cap. 216 R.E 2019] seeking for the following orders: ’7. This Honorable Court may be pleased to call fop inspect the record and examine the regularity, property and correctness of judgment and decree 2 arising from Land Appeal No. 45 of2018 delivered by Hala District Land and Housing Tribunal on 22nd November 2018 and ifnecessary quash thejudgment and decree thereof 2....... 3....... " The Application has been supported by the affidavit deponed by the Applicant. Only the 1st Respondent who challenged it through his counter affidavit which was presented for filing on 5th April 2024. The application was argued by way of written submissions. The Applicant was duly represented by Mr. Lutufyo Mvumbagu while the 1st Respondent acted in person. It was argued by the counsel for the Applicant that the execution of the decree against her was against the principles of natural justice as she was never availed an opportunity to be heard. He insisted that in our jurisdiction, a decree cannot be passed and executed against a party which is stranger to the suit. Reliance was put on the case of Leonard Peter vs. Joseph Mabao and 2 Others, Land Case No. 04 of 2020. The learned counsel went further to argue that the Applicant was a necessary party to the original proceedings and thus it was necessary for her to be joined. In his view, passing a decree against the Applicant without 3 joining her to the suit, infringed her right to be heard. The case of National Housing Corporation vs. Tanzania Shoe Company & Others [1995] TLR 251 on the need of joining the necessary party to the proceeding, was cited to substantiate his arguments. He ended praying for grant of the application. In reply thereto, the 1st Respondent asserted to have gained the property way back on the 20th day of May 2014 from one Chacha Chegere Matiko in the presence of Local Government of Yangeyange, Msongola Ward. He added that the Applicant has been in occupation of the suit property todate and has refused to vacate from it while being aware that her continued occupation is unlawful. The 1st Respondent contended that even if the Applicant would have been joined in the original proceedings, still the 1st Respondent would have been declared owner of the suit premises because the 1st Respondent was the first person to purchase it. He fortified his arguments by the decision of this court sitting at Kigoma in the case of Jummanne Chimpaye vs. Daudi Mohamed Mkwanje, Mise. Land Application No. 06 OF 2020 on the priority principle. He urged the court not to grant the application. Having gone through the rival affidavits and submissions in respect of 4 the instant matter it is now patnent to decide whether or not the application has merits. As aforesaid, the basis of the application is that, the Applicant was not a party to the proceedings in "SHAURI NA. 014/2018 at Msongola Ward Tribunal and in Land Appeal No. 45 of 2018 at Hala District Land and Housing Tribunal. From the records of the lower tribunals and the averments made by the parties, it is evident that the Applicant is the one in occupation of the suit landed property claiming to be the owner of it. Both respondents are aware of this fact of the applicant having contestable interests on the suit property. The proceedings of the Ward Tribunal vividly show that the 1st Respondent herein, complained against the 2nd Respondent for having sold the suit piece of land to a third party who, at the time of lodging the complaint, she had already erected a house therein. Astonishingly, the Ward Tribunal, despite being aware of the 3rd party's interests in the suit property, proceeded to determine the matter before it without calling her to defend her interests. In other words, she was not joined in the proceedings. I have further noted that, in the judgment of the trial tribunal which was later on confirmed by the appellate tribunal, it was ruled that the said 3rd party, who is the present Applicant be evicted from the suit property. It is my firm view that in the circumstance where the trial Tribunal became 5 aware of the 3rd party's interests, it was necessary to direct the said 3rd party to be joined to the proceedings. Likewise, the appellate tribunal having known that the 3rd party's interests were not determined by the trial Tribunal nor was she called to defend her interests, it ought to have exercised its revisional powers under section 36 of the Land Disputes Courts Act, [Cap 216 RE 2019], It is thus obvious that the, Applicant was condemned to vacate the suit premises unheard. The principle of natural justice requires that where a judicial decision has to be made against a person, that person is entitled to a fair hearing. In our jurisdiction such right has been enshrined under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, Cap. 2. The Cardinal principle is that the judicial decision reached in violation of the right to a fair hearing, is rendered a nullity and cannot be left to stand. In Abbas Sherally and Another vs Abdul S.H.M. Fazalboy, Civil Application No. 33 of 2002 the Court of Appeal of Tanzania, had this to insist: "The right of a party to be heard before adverse action is taken against such party has been stated and emphasized by courts in numerous decisions. That right is so basic that a decision which is arrived at in violation of it will be nullified, even if the same 6 decision would have been reached had the party been heard, because the violation is considered to be a breach of naturaljustice." Based on what I have indevoured to discuss, I find merit in the Application that the Applicant's right to be heard was violated by the two lower courts (tribunals). I therefore proceed to quash the proceedings and decisions of the Ward Tribunal for Msongola, in SHAURI NA. 014/2018 and that of the District Land and Housing Tribunal in Land Appeal No. 45 of 2018. I would have directed for retrial before the Ward Tribunal for Msongola, where the matter commenced, but since ward tribunals are no longer having adjudicatory powers, it won't be a realistic order. Having, quashed the proceedings and the decisions of the two tribunals/courts below, parties are at liberty to re-institute fresh proceedings before a compent court joining all necessary parties including the herein Applicant. Application is granted. Each party to bear its own costs. Order accordingly. DATED at DAR ES SALAAM this 28th June 2024. . ■ J ------------- . . HEME 7