MWAJUMA MHEKA SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 107 OF 2023 (Originating From Mise. Application No. 205 of 2022, Kinondoni District Land and Housing Tribunal) MWAJUMA RASHID MHEKA.................................................................. APPELLANT VERSUS RASHID SELEMANI KORONGO (Administrator of the Estate of the Late Selemani Rashidi Korongo).............................................. RESPONDENT JUDGMENT 4th to 12th December, 2024 E.B. LUVANDA, J In the memorandum of appeal, the Appellant named above, raised four grounds to challenge the ruling of the Tribunal. At the Tribunal the Appellant filed an application for extension of time to set aside the ex-parte judgment dated 30/09/2021 in Application No. 384 of 2018, where the Tribunal dismissed it on account that the Tribunal do not condone gross negligence on the part of the Appellant who abandoned the matter for over four years. The grounds of appeal are: One, That the trial Chairperson of the Tribunal erred in fact and law by total disregard of illegality and irregularity in pronouncement of the ex-parte judgement as the Appellant was not duly notified of the judgment date hence occasioned massive injustice on the Appellant's side; Two, 1 the Tribunal erred both in law and fact in total disregard of documentary evidence annexed by the Applicant in her Affidavit and well adopted in the submission; Three, the learned Chairperson erred in fact and law for failure to determine the credibility of Applicant's averments stipulated in the Affidavit also at the time of hearing of the case vide written submissions; Four, the learned Chairperson erred in fact and law by usurping its powers in determining application in total disregard of right to legal representation as exhibited by the Appellant. Mr. Mpwaga Bernard Counsel for Appellant submitted at the Tribunal, among other reasons that the Appellant was asking for the consideration when granting the application for extension of time to set aside ex-parte judgement was due to the ground that there was prevalence of illegality that was complained by the Appellant on the manner the pronouncement of judgement was done prior to the issuance of summons to the Respondent. He submitted that the application was henceforth made purposely to enable the Appellant to cure the illegality and or irregularities in the said ex-parte judgment. He submitted that the Trial Chairperson never considered that in the ruling and drawn order but rather considered only issuance of summons for notifying the hearing date but not the judgement date. 2 He submitted that it is undisputed fact that in Application No. 384 of 2018; no summons was issued prior to pronouncement of ex-parte judgment hence it is our humble submission that the ex-parte judgment be set aside and both parties be afforded with chance to be heard for the good end of justice. He submitted that the Chairperson ignored the Appellants submissions which clearly portrayed the requirement of the law, arguing service of summons was contrary to Regulation 6(3) of The Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 GN. No. 174 of 2002 (sic, 2003) which requires the summons to be served on the party himself or any person of eighteen years of age and having any sort of connection with the party to be served. He submitted that Regulation 6(4)(a) (supra) directs the manner and mode of serving the summons whereby the process server is mandated to return to the Tribunal the original copy of the summons duly signed by the person whom summons was effected, along swearing an affidavit in the prescribed form indicating the manner in which the service has been effected. He submitted that the Tribunal never bothered to summon the Appellant to attend on 30/09/2021, when the Tribunal pronounced the judgment. He submitted that it is an irregularity, citing Cosmas Construction Co, Ltd Versus Arrow Garments [1992] TLR 127. 3 For ground number two, the learned Counsel submitted that it was substantiated at the Trial Tribunal, that among other things that led to hearing and pronouncement of ex-parte judgement at the Tribunal was due the fact that the Appellant lost communication with her Advocate for quite some time, something that made her to decide to come to Dar es salaam from Mtwara region; to pay a visit to her Advocate's office, whereby she came to realize that her advocate one Mr. J.W Kayombo has passed away whereby upon further inquiry, she came to be informed that Mr. Kayombo Advocate died at Songea, Ruvuma Region on 12/03/2021. He submitted that despite the loss, the Appellant never slept with her rights, argued she decided with immediate effect engaged new legal representation which resulted into the application for extension of time to set aside ex-parte judgement. He submitted that despite the fact that there has never been objection and or doubt that the Appellant's Advocate one J. W Kayombo passed away as elucidated by the Applicant in the Tribunal, argued the Chairperson never regarded the death of the Applicant's Advocate as among the reasonable grounds for the grant of extension of time to set aside ex-parte judgement. For ground number three, the learned Counsel submitted that the Appellant in her affidavit in support of application for setting aside ex-parte judgement, clearly portrayed that she managed to file her written statement of defence on 4 28/11/2018 through her Advocate one Joseph Wilbroad Kayombo to whom she engaged to represent her in the case and the Appellant agreed with her advocate that when the time comes that she will be required to enter appearance before the Tribunal and tender testimony then he will notify her. He submitted that the Appellant ever since has been communicating with her Advocate through mobile phone as she shifted from Kiluvya Area since October, 2018 to Mtwara Region where she has been residing ever since to date. He submitted that the Appellant in proving that she has been in long time relationship with her Advocate one J.W Kayombo even in the previous cases involving the Appellant and the Respondent, argued the Appellant annexed the copy of judgement in Mise. Civil Appeal No. 10 of 2014 dated 20/07/2015 and a letter dated 26/07/2015 evidencing representation by one Kayombo Advocate, citing annexture UAA-1 collectively to the affidavit. Those Annextures proved that there was long time relationship between the Appellant and her Advocate and there was no point in time that the Appellant lost trust to her Advocate as far es representation was concerned that is why she had no doubt of her duly representation. He submitted that failure by the Tribunal in determining the credibility of Appellant's averments and submissions in support of application had gravely caused the miscarriage of justice on the part of the Appellant. 5 For ground number four, the learned Counsel submitted that there is no doubt that the Appellant and the late Advocate J. W Kayombo had been under legal representation arrangement for quite long period of time as it was evidenced, citing annexture UAA-1 collectively, arguing that the said advocate had been representing the Appellant for many years and even the Written Statement that was filed in the Main Suit was drawn and filed by He submitted that for attaining best interest of justice, the Appellant who is more than 65 years of age should not condemned unheard in any matter that she showed interest of being part and parcel of it taking into account the case at hand is a family matter involving a mother and her step son and the dispute to the greatest extent involved administration of the estate of the late Selemani Rashidi Korongo who was father of the Respondent and once the husband of the Appellant before divorce emerged thereto. He submitted that the dispute involves landed properties which were solely under ownership of the Appellant and the evidence to that effect that has remained for decades were attached to the written statement of defence, argued that the Respondent claimed that the said landed properties belonged to his deceased father. He submitted that Tribunal without inquiring any sort of proof granted an application hence gravely caused miscarriage of justice by 6 entering judgement and decree without requiring any sort of evidence from the Respondent therein but rather from the testimony of mere words. In reply, Mr. Alexander Kyaruzi learned Counsel for the Respondent, for ground number one, submitted that there is no illegality committed by the learned Chairperson in his decision of refusal to grant extension of time to set aside ex- parte judgment. He submitted that during ex-parte hearing the suit was scheduled under BRN session and notice of hearing was dully published. He submitted that an application for extension of time to set aside ex-parte judgment, the learned Chairperson had considered the fact that the Applicant had knowledge of the case as she filed the written statement of defence and also entered appearance for six times and thereafter disappeared for good and even when the notice of hearing was published in the Uhuru newspaper of 18/11/2020 she never appeared on 30/11/2020 and thereafter the learned Chairperson had rightly concluded hat the Appellant had committed negligence of high degree for not attending and for making follow up of the case four years since 2018 to 2022. He submitted that, it be noted also that the Appellant in her accompanying affidavit had sworn false allegations that her Advocate Mr. Kayombo was the one handling her case and that she had expected him to give her the update of 7 the case when actually on record the said advocate had never appeared on her behalf as she was the one appearing personally. He submitted that in view of the fact that the Appellant had full knowledge of her case then she cannot rely on the ground that the notice of judgment was not served on her and as such this ground of appeal must fail. He submitted that the case of Cosmas Construction (supra) is distinguishable to this case for explanation that the Appellant had full knowledge of the case she had participated and appeared but later she decided to abandon that case. For ground number two, the learned Counsel submitted that the learned Chairperson was right to hold that the Appellant had never been represented by the late Advocate Kayombo in the court and the Tribunal record speaks loud and therefore argued that the said allegation that the Appellant had waited for the said advocate to update her on the proceedings of the case is baseless and therefore argued this ground must fails. For ground number three and four, the learned Counsel submitted that the record show that the written statement of defence was drawn and filed by Mwajuma Rashid Mheka and after being filed it is herself who had been appearing personally in court and not Mr. Kayombo and thereafter it is false allegation that Mr. Kayombo was the one appearing in court on behalf of the 8 Appellant, He submitted that there is nowhere on the record it shows that Mr. Kayombo had appeared and even the written statement of defence has no signature of Mr. Kayombo. He submitted that her false allegations it suffice to dismiss these grounds of appeal. That was all about submission for both parties. Going by the records of the Tribunal in Application No. 384 of 2018 suggest that on 13/10/2018 the Appellant was served by way of affixation of summons at her place of abode at Kiluvya, where the Process Server made a comment that the Appellant was very cooperative. On 28/11/2018 the Appellant presented her written statement of defence signed by the Appellant and indicated as having been drawn by the Appellant but under care of J.W. Kayombo of Ms. Kajomasa Law Chamber along an address of that law firm. The personal address of the Appellant was not indicated. The records depict that on 13/02/2019 the Appellant appeared personally and informed the Tribunal that her advocate is attending another matter at Temeke. On 22/10/2019 the Appellant also notified the Tribunal that she had no information of where about of her advocate. Thereafter the Appellant went at large missing. On 17/03/2020, the Tribunal made an order for the Appellant to be served with notice for hearing. On 16/03/2020 the Process Server returned the summons 9 with an endorsement that he failed to effect service to the Appellant for explanation that upon visiting at Kiluvya Kisarawe where the Appellant was living, was told the Appellant relocated to unknown destination. On 21/09/2020 the Tribunal made an order for the Appellant to be served by way of publication in the gazette, where a summons was published vide Uhuru Newspaper dated 18/11/2020 at page 20, requiring the Appellant to attend on 30/11/2020. Still the Appellant did not show up. Regulation 9 of GN 174 of 2003, provide, 'Where the Tribunal is satisfied that it is notpossible to effect personal service of a summons or a notice of the date of hearing on parties it may order service to be effected by- (a) affixing a copy of the summons or the notice ofhearing in a conspicuous place: (i) on or as near as may be to the land where possible; and (ii) where the land is village land, at the office of the village council or other public place within the village; or (Hi) where the land is general land, at the office of the local authority having jurisdiction in the area where the land is located; and (b) registered mail; (c) publishing a copy in one or more newspapers locally circulating in the area' io In the affidavit in support of the application, the Appellant deposed that in October 2018 she relocated to Mtwara Region where she has been residing until when sensed no call from her Advocate J.W. Kayombo, where upon visiting at his office she was told Advocate Kayombo passed away at Songea on 12/03/2021. A combination of facts narrated above, to my view the Tribunal ought to examine it as it constitutes elements of illegality as far as proper service of summons is concerned, which is worthy to be ascertained by the Tribunal on the intended application. In the application filed at the Tribunal, the Respondent pleaded that the suit properties are registered as House No. KND/MSS/MGR21/109 Makangira Msasani Kinondoni and House No. KND/MKN/MIKA A. 34/447 Mikocheni A Kinondoni. However, upon the Process Server endorsed on the rear of the notice of hearing (summons) that the Appellant was no longer living at Kiluvya Kisararwe, there is no records indicating any attempt by the Tribunal to affix notice of hearing at the two suit properties, as provided in the rules, instead or prior dashing to publish notice of hearing in Uhuru Newspaper alone. li I therefore rule that the Appellant is entitled to extension of time to pave way for the Tribunal to examine on that point of illegality enlightened above, along a fact that Appellant relocated to Mtwara and her attorney passed away in between, which facts were not dispelled in the counter affidavit. All give the Appellant a benefit of doubt, sufficient for the grant of extension of time. The Appellant is given an extension of fourteen days counting from the date hereof. This verdict will have the effect of reversing the refusal by the Tribunal. The appeal is allowed. No order for costs. Judgment delivered in the presence/of Ms. Maria Godfrey Elfas learned Counsel holding brief for Mr. Mpwaga Bernard Counsel for Appellant also holding for Mr. Alexander Kyaruzi learned Counsel for the Respondent. E.B. LUVANDA JUDGE 12/12/2024 12