MATONDO MUUNGU

IN THE HIGH COURT OF THE UNITED RE PUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA LAND APPEAL NO. 202408061000019026 (Arising from Land Case No.88 of 2020 before Maswa District Land and Housing Tribunal) 1.MATONDO MUUNGU 2. NDULU MUUNGU ................................................APPELLANTS VERSUS NDALAHILE MAIGE ...........................................................RESPONDENT JUDGMENT 11th September & 31st October 2024 F.H. MAHIMBALI, J This appeal arises from exparte judgement of the Maswa District Land and Housing Tribunal. In the nutshell, the respondent had sued the appellants before the trial tribunal for the claims of his parcel of land located at Mwaumatondo hamlet within Bariadi District estimated to be 53 acres. The respondent alleged to have purchased such land from a 1 clan of Dotto Maige Mapuli Maige. The DLHT decreed in favour of the respondent as the lawful owner of the disputed land. According to the trial tribunal record, the appellants attempted to set aside the decision of the trial tribunal vide Misc. Land Application No.806 of 2022 for setting aside the exparte judgement, which had arisen from Land Application No.88 of 2020 before the tribunal. Thus, filed Land Appeal No.62 of 2022 before this Court, (Massam J) in which it was ruled that the case file be remitted to the trial tribunal for it to be heard inter parties before another honourable chairman. Thus, the matter was remitted before the tribunal where the matter was once again heard exparte, and the verdict was entered in favour of the respondent. The appellants are not amused with the decision of the trial tribunal hence this appeal armed with four grounds of appeal; 1. That, the trial tribunal erred in law and in facts by denying the appellants application No.49 of 2024 as required by law, therefore the appellants were not afforded any opportunity of being heard. 2. That, the trial tribunal erred in law and in facts by pronouncing exparte judgement denying the appellants application No.49/2024 by striking it out without further justification. 2 3. That, the trial tribunal erred in law and in facts by hearing exparte and pronounce exparte judgment while the same tribunal admits that the applicants on the material date had attended burial of their beloved uncle (SITTA MATENDE GUYAYI) without considering that death is the act of God and cannot be prevented as it is beyond a human being control. 4. That the trial tribunal erred in law and in fact by striking the appellants application for setting aside exparte judgment relying on failure to present document to prove appellants’ uncle (SITTA MATENDE GUYAYI) being dead while on 12 day of June 2024, the matter was scheduled for hearing and was a burial date of the appellants uncle and on 13 days of June, the appellants entered their appearance. The respondent refuted all grounds of appeal, contending that the appeal is venous and intends to waste time of the court. When this appeal came for hearing, both parties appeared in person and unrepresented. Arguing for their appeal the 1st & 2nd Appellants prayed for the court to adopt their grounds of appeal and form part of their submission. They added that they were not heard at the tribunal, thus pleased for their appeal to be allowed. 3 On her part, the Respondent resisted the said appeal on its entirety thus prayed for the dismissal of the appeal. She submitted that it is not true that these appellants were denied their rights of being heard. They were thus dully aware of it. But for the reasons best known to themselves, they had opted not to attend the tribunal's hearing. That has been their tendency. They did so even on the previous time and the tribunal had proceeded exparte. After the verdict, they rushed to this court to challenge it on the ground that they were bereaved. That fact of bereavement was not established. That was not proper in law. In her view she considered that their appeal is not meritorious as it is just a delaying tactic over her right. Thus, prayed for this court not to be tolerant anymore to them as none says the truth in it. I have carefully followed the submission of the parties, and the issue for deliberation is whether this appeal has been brought with sufficient cause. It is trite law that no person shall be condemned unheard. See Article 13 (6) (a) of Our Constitution. Thus, none adherence to that principle in dispensation of justice is null and void. See also Pili Ernest versus Moshi Musani, Civil Appeal No.39 of 2019, DPP versus Sabina Tesha and Others (1992) TLR 237, Transport Equipment 4 versus Devram Valambia (1998) TLR 89, Abbas Sherally and Another versus Abdul Sultan Haji Mohamed Fazaboy, Civil Application No.33 of 2002. In the matter at hand the appellants’ complaint is that at the trial they were not heard despite the fact that they informed the tribunal to have been bereaved with their uncle and thus on the material date they had to attend their uncle’s burial ceremony. Yet to their surprise, the trial tribunal proceeded with the matter exparte. They also argued that the tribunal wanted them to furnish with death certificate, despite the fact that on the material date required them to produce death certificate it was a day which burial ceremony was conducted. The tribunal did not consider all these thus unjustifiably proceed with the matter experte. I have gone through the trial tribunal records, clearly, I should admit that the appellants were not heard. I so hold first basing on the decision of this Court (Massam J) which ruled out that the matter be tried denovo, but the trial chairman directed the parties to file their pleadings afresh which were not the directives of this Court. Order of this Court: 5 “ .......The matter be remitted to the trial tribunal to be heard inter partes before another chairperson” In traversing the trial tribunal’s record, I have encountered the following, on the implementation of the retrial order: Date: 05/06/2024 Coram: N.M. Ntumengwa Applicant – Yupo Respondents – Wapo T/Clerk – S. Allen. Baraza: Baada ya kuteuliwa kutembelea Baraza hili, nipo tayari kuendelea na shauri hili kama hukumu ya Mahakama Kuu – Shinyanga ilivyoelekeza katika shauri la rufaa na. 62 of 2022. Wadaiwa: Tunaomba tupewe hati ya madai ya mleta maombi ili tuyajibu madai haya kisha tuendelee. 6 Baraza: Kwa kuwa nimepewa siku 30 tu za kutembelea Baraza hili basi wadaiwa wapewe maombi ya mdai leo kisha walete utetezi wao ndani ya siku saba” Based from the extract above, since the former proceedings was done exparte, the trial tribunal properly took the best stage of the case in availing the appellants with the respondent’s claims so that they could respond. However, since the parties had notified the tribunal that they had to attend funeral on material date, thus, it was sufficient notice for the trial tribunal to adjourn the matter and if in doubtful require them to furnish with a proof of the alleged fact death on next day, rather than condemning them with that long ruling just accusing them that they were cheating on him. Where a judicial decision is reached in violation of the right to a fair hearing, such a decision is rendered a nullity and cannot be left to stand (See David Mushi v. Abdallah Msham Kitwanga, Civil Appeal No. 286 of 2016, CAT (unreported) at page 18). In the event, I set aside the exparte proceedings of the trial tribunal dated 12th June 2024 and its resulting exparte judgment and the consequent orders arising from it; and in its place direct the trial tribunal 7 to hold a proper retrial of the application inter partes basing on the pleadings so far filed as the appellants have established good cause of their absence on the material date of exparte haering. For the interests of justice, it is ordered the matter be heard before another Chairman with another set of assessors who never attended this matter in anyhow. No orders as to costs. DATED at SHINYANGA this 31st day of October, 2024. F.H. Mahimbali Judge. 8