MOZESI SOMANGIZA

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND APPEAL NO. 000018715 OF 2024 MOZESI SOMANGIZA@YOHANA SOMANGIZA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS JULIAS MBIHA .............................. RESPONDENT / DEFENDANT JUDGMENT KAHYOZA, J, Normal 0 false false false en-TZ X-NONE X-NONE Mozesi Somangiza@ Yohana Somangiza, the Appellant herein sued the Julius Mbiha, the Respondent herein for a parcel of land before the District Land and Housing Tribunal (DLHT) for Kasulu at Kasulu. From the pleadings before the DLHT the said land is said to measure one acre and is located at Buhirima hamlet within Ruhita Village, Ruhita ward in Kasulu district. The record further reveals that hearing of the matter was exparte following the Respondent’s failure to file his written statement of defence. It is further on record that after hearing the Applicant, now, Appellant, the DLHT delivered its judgement in favour of the Respondent. The Appellant was aggrieved by the decision. He has now appeal to this court against that said decision. His memorandum of appeal contains five grounds, which are Page. 1 reproduced here below: 1. That, the Honourable Chairman grossly erred in law and fact when he held that the evidence as it was adduced on the part of the Appellant was not heavier to prove that the Appellant is the lawful owner of the suit land. 2. That, in deciding the case in favour of the Respondent and holding that the Respondent lawfully owned the suit land, the trial District Land and Housing Tribunal did not thoroughly scrutinize and consider the testimony of, PW1- Yohana Moses Somangiza who, having been the legal owner of the suit proves his ownership over the suit land and the same proves long time chronological history his ownership and the same states that he sold a part of his land measuring half (1/2) an acre only to the Respondent but the Respondent invaded the Appellant’s boundaries without any legal justification. 3. That, the Honourable Chairman of District Land and Housing Tribunal erred in law and facts when he dismissed the Appellant’s application before it and declared the Respondent the legal owner of the suit land basing on the time limitation to file the suit against the Respondent while the same proves his development and ownership over the suit land at all time since way back 1987 and the Appellant in his evidence on record proves that in 2002 he sold half an acre to the Respondent. Hence the allegedly twelve (12) years stated by the Honourable chairman in the impugned judgment is misconceived against the Appellant. Page. 2 4. That, the Chairman of the District Land and Housing Tribunal erred in law and facts when he held that the Judgment against the Appellant based on his own issues which was not raised and pleaded by the parties to the suit. 5. That, in the circumstances of the case, the impugned decision of the trial District Land and Housing Tribunal is perversely against the weight of the evidence on record and justice of the case. The Respondent on his side filed a reply to the petition of appeal in which he is urging the court to have the appeal dismissed with costs. I find it also important to point out at this juncture that when the appeal came up for hearing, the Appellant being a lay person, did not submit in respect of the grounds of appeal. He only urged the court to consider his grounds and then decide accordingly. On the other hand, the Respondent made only brief submissions. He submitted that the decision of the DLHT was proper and as such there was nothing to fault. He thus prayed that the appeal be dismissed with costs. As I was composing this judgement, something abnormal in the proceedings drew my attention. As I pointed out earlier, the matter before the DLHT was ordered to proceed exparte. This is evidenced by the record of the trial tribunal. The record shows that the order was made on 04/03/2024 as it is reflected at page 4 of the proceedings. The order reads as follows: Uamuzi: Page. 3 Ni kweli mleta maombi alishapewa nyongeza ya muda kuleta majibu tarehe 20/02/2024. Majibu hayo yameletwa leo tarehe 04/03/2024. Nyongeza aliyopewa iliishia tarehe 20/02/2024. Hivyo pingamizi la mleta maombi dhidi ya majibu ya mjibu maombi kuletwa nje linakubaliwa. Imeamriwa majibu ya mjibu maombi yatupiliwe mbali na shauri lisikilizwe upand mmoja. Amri: Kusikilizwa 26/03/2024. Imesainiwa-Mwenyekiti. 04/03/2024. From that date the matter was adjourned several times before hearing commenced. The record shows that the Appellant (PW1) gave his evidence on 04/06/2024 as it is reflected at page 6 of the proceedings. The record further shows that this PW1 was cross examined by the Respondent, as is reflected at page 8 of the proceedings. At page 10, we also have the Respondent cross examining PW2, Isaya Ibrahim. I find this abnormal because hearing was exparte. The Respondent was not expected to take part in the hearing process. Following this anomaly, I postponed composing the judgement. I reopened the matter and invited the parties to address the court on this issue. As usual, both the Appellant and Respondent had very brief submissions. The Appellant submitted that the trial chairman erred when he accorded the Respondent a chance to cross examine the witnesses while the matter was being heard exparte. He did not suggest the way forward. On his part, the Respondent Page. 4 submitted that it was proper for him to cross examine the witnesses because that was his right. Now, after hearing the parties on this issue, I wish to say right away that I associate myself with the position taken by the Appellant. In as long as hearing was exparte, there was no room for the Respondent to cross examine the witnesses. He was excluded by the order made on 04/03/2024. He was at liberty to be present during the hearing but just vas a mere onlooker. He had no active role to pray during the hearing. The act of the trial chair man according him a chance to cross examine the witnesses did vitiate the proceedings. It was a fundamental error that occasioned miscarriage of justice. The pertinent question then is what should be the way forward in the circumstances. I have carefully considered and weighed the normally. The only remedy available is for the proceedings to be nullified. But for the sake of avoiding further delay, only a portion of these proceedings shall be nullified. As this issue alone suffices to dispose of the appeal, I shall not consider the grounds of appeal advanced by the Appellant. Just in the upshot and from the foregoing discussion I nullify all the proceedings immediately starting from the order for exparte proof up to the end. I also quash the judgement arising therefrom and I set aside the resultant decree. In consequence thereof, I order a retrial starting from the order for exported proof till finalization of the matter. Just for avoidance of doubt, the retrial shall be Page. 5 before the same chairman and the same set of assessors unless they are no longer at the station. Right of appeal is duly explained. Dated at KIGOMA this 21st of February 2025 . P. R KAHYOZA JUDGE OF THE HIGH COURT Page. 6