MWAKAIYA VS SUZANA Final

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA LAND APPEAL NO. 202405021000009749 (Arising from Land Application No.8 of 2022 before Shinyanga District Land and Housing Tribunal) MWAKAIYA NG’WIZAHANO ...................................APPELLANT (Administrator of the estates of The late Asha Nhínde) VERSUS 1. SUZANA ZAKARIA 2. KAJALA NDATURU ...............................RESPONDENTS JUDGMENT 7th August & 6th September 2024 F.H. MAHIMBALI, J The nutshell of this appeal is this; the appellant being administrator of the estate of the late Asha Nh’inde unsuccessfully sued the respondent for unlawful disposition of the suit land claiming that the suit land was the 1 property of the late Asha Nhinde and thus he has right of inheritance over it. Undaunted, the appellant has preferred this appeal, challenging the verdict of the trial tribunal on four grounds of appeal, paraphrased as follows: 1. That failure by the 1st respondent to bring administrator of the estate of her father or any evidence related to it, was an error on the side of the trial tribunal to reach his finding in favour of the 2nd respondent. 2. That the appellant was denied his right of being heard. 3. That the admissibility of the respondents’ exhibits contravened the rules of admission. 4. That the trial chairman erred in law and facts for failure to evaluate properly the evidence in record as adduced by the parties. During the hearing of the appeal, the appellant was advocated by Mr. Agustino Ijani learned advocate while the respondents appeared in person without legal representation. In the first place, Mr. Ijani dropped the second ground of appeal. Arguing for the rest grounds of appeal, Mr. Ijani’s main concern is this, the trial tribunal erred in reaching that verdict. 2 In consideration of the fact that the 1st respondent is not the owner of it either by inheritance or by being administrator of the estate of her late father. Above all, reading the testimony of SM2 is stronger and convincing that the said land belongs to the estate of the late Asha Nhinde. For these reasons, there is no viable evidence in favour of the respondents. Therefore, the appellant successfully established the case on balance of probability (SM1 and SM2). With the third ground of appeal, Mr. Ijani fortified that the trial tribunal had erred in admitting the alleged Exhibits (U2, U3 and U4). The admissibility of these documents contravened sections 47(1) of the Stamp Duty Act, Cap 89. As they were not duty stamped, their admissions contravened the law, thus not effectual. He boosted by refereeing to the case of Zacharia Barie Bulla V. Theresa Maria John Mubilu, [1995] TLR 16. Where the Court emphasized that none payment of stamp duty fee, renders the document inadmissible. So, these Exhibits U2, U3 and U4 ought to be expunged from Court record. On the last ground of appeal, the grief is, there had been a failure in evaluating properly the evidence of the parties as adduced in court. The reason why that other witnesses didn't come to court, is merely because of sickness. Further, the argument that the said plot is owned by the 1st respondent, has not been established by cogent reasons argued 3 Mr. Ijani. In addition even paying attention to Exhibits U2, U3 and U4, none stated clearly the fact of ownership to the first respondent. The proceedings also establish Mr. Kulwa Kayeji (SU2) as buyer from the first Respondent. This Kulwa Kayeji is said to have sold it to Kajala Ndaturu. Unfortunately, the said Kulwa Kayeji was not made a witness of the case for unknown reasons. As to the fact why SM1 did take so long to file to the probate case, by itself is not a sound ground to invalidate the appellant's appointment as administrator. Mr. Ijani thus prayed for this Court to quash both the proceedings and judgment thereof and in its place declare the appellant as true owner of the disputed land, costs of the suit, and any other remedy as this Court may deem just and fair to grant. On the side of the 1st Respondent, stated that she was given that land following the death of her father who died in 1990. She started using it from then until when she sold it to Kulwa Kayeji in 2010. After he had no means to develop it, he decided to sell it to the 2nd respondent. The first respondent also questioned that the said daughter of Asha is alive, why did they not call the said Mahamud as their witness to prove the same. If there are graves in the said land, it is question of evidence. There has been none. She finally pressed that, the suit land is 4 hers, she having inherited it customarily from her deceased father and she had tendered evidence on it. 2nd Respondent- submitted that after he had taken all the precautions before buying that land, he then bought it. In essence he was sure that the said land was undisputed being of Suzana who then sold it to Kulwa Kayeje. With all these documentations, he was comfortable that the said land is immune from being challenged its sale. There is nothing of grave as purportedly said by the appellant. In the digest of the case and appeal’s submission, for sure there is nothing established that the said land is his. As regards to the testimony of Kulwa Kayeji was recorded as he was there. Thus, this appeal is unmerited, it be dismissed with costs, he prayed. Resting his submission by way of rejoinder, Mr. Ijani reiterated his submission in chief. In admissibility of evidence as alleged, it is the CPC which governs. Thus, the trial tribunal applied the law well. As regards to the evidence, there has not been evidence by the 1st respondent that she inherited it. With the second respondent's argument that he was confident with the documentations of the said land, it was important for all those material witnesses to come to court for their testimony. 5 As to the issue of graves, is not a new thing. He clarified that even at page 18 of the trial tribunal's proceedings, this question of graves also featured out. Thus, he kept on insistence for the appeal to be allowed. Having heard both parties on merit, I have now to determine this appeal and the paramount issue for deliberation is whether this appeal has been brought with sufficient cause. Before my deliberation on this appeal on merit, I must first state that upon my thorough digest on the trial tribunal records, I am of the formed view that there was procedural irregularity committed by the trial tribunal. Thus, the complainant (appellant) at the hearing did not close its case but on what is alleged absenteeism of his advocate that led for Hon. Chairman to order closing of the complaint’s case and required the defence to give evidence pursuant to Regulation 13 (2) of The Land Disputes Courts Regulation. Regulation 13 (2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, GN 174 of 2003 provides that: (2) “Where a party's advocate is absent for two consecutive dates without good cause and there is no proof that such advocate is in the High Court or Court of Appeal, the Tribunal may require the party to proceed himself and if he refuses 6 without good cause to lead the evidence to establish his case, the tribunal may make an order that the application be dismissed or make such as orders as may be appropriate” It is my view that, for the trial tribunal to make an order under the above provision, four conditions must be cumulatively established. One, the party's advocate must have defaulted to appear for the two consecutive days. Two, the non- appearance should be without good cause. Three, there should have no proof that the said advocate is appearing at a superior court. Four, the party himself must have been requested to fend himself and unreasonably refused. In the case at hand and upon scanning of the trial tribunal’s records, establish that then appellant’s advocate (Mr. Emmanuel Sululu) had been recorded absent for more than two times consecutively without sufficient cause. On 1/9/2023, the said advocate and his client were also absent. It is on this latter episode which prompted the Hon. Chaiman being aggrieved by the behavior conduct of Mr. Sululu where he then ruled that, I quote; “Baraza: Hakuna Ushahidi wa wakili huko mahakama kuu, shauri hili namna anavyoliendesha wakili Sululu siyo sawa. Upande wa pili ambao hawana uwakilishi ni wazi haki yao inafinywa na mara ya mwisho hakuwepo bila taarifa na leo 7 tena hayupo bila taarifa na leo tena mteja wake pia hayupo bila taarifa , ni wazi alijua akiwepo atalazimika kuendelea na shauri hili, nakosa sababu ya kuahirisha shauri hili kwani pia leo hakuna Ushahidi kuwa yupo mahakama kuu, kupitia kanuni ya 13 (2) ya GN No.174 of 2013 naelekeza shauri utetezi liendelee bila wao kuwepo” Absorbing from the extract above and the provision referred herein, I am of the firm view that the Hon. Chairman erred to rule in that way. Instead, he was required to dismiss the matter for want of prosecution or adjourn the matter. As the complainant’s advocate was absent, the Hon. Chairman was obliged to address to all parties on that absenteeism and feature it in the proceedings which was not done. Following the advocate’s absence and without due notice to the tribunal; and had his client refused to fend himself on tribunal’s directives, the Hon. Chairman was required to dismiss the suit. The rationale behind being that, the finding that the non-appearance by the advocate is not attributed to any good cause or appearance in a superior court, leads a presumption that the advocate is unable or not serious to represent his client. Directing a party to proceed in his person implies, in my view, that the representation has ceased. Consequently, therefore, if a party unreasonably refuses to prosecute or defend his case in person upon 8 being directed to proceed under the respective provision, the dismissal is deemed to be for want of prosecution and the order to proceed ex parte for want of defence. See: Adam Mohamed Zuberi vs. Kulwa Mashaka, Civil Appeal No. 175 of 2018 (unreported) and Progressive Women Contractors Limited vs Ubungo Municipa Council and Another, Civil Case No. 17 of 2021. Therefore, the trial tribunal was bound, before giving an order to proceed with defence evidence to make a finding on whether the appellant had no further witnesses to call and that was ready to proceed by himself. Failure of which, there is no doubt that the appellant was not given his full right of being heard his case. As a necessary prerequisite of an order under regulation 13(2) was not adhered to, it cannot be said that the order to proceed ex parte was made under the said specific provision. Despite the fact that this ground of appeal was dropped by the appellant in his submission, yet it is legally relevant in the perspective of law, so this court cannot close its eyes. As well stated in the case of Mbeya- rukwa Autoparts & Transport Ltd. vs Jestina George Mwakyoma (Civil Appeal 45 of 2001) [2001] TZCA 14 (9 August 2001) at page 16 that: In this country, natural justice is not merely a principle of the natural law, it has become a fundamental constitutional 9 right. Article 13 (6) (a) includes the right to be heard amongst the attributes of equality before the law, and declares in part – (a) wakati haki na wajibu wa mtu yeyote vinahitaji kufanyiwa uamuzi wa kimahakama au chombo kinginecho kinachohusika, basi mtu huyo_atakuwa na haki ya kupewa fursa ya kusikilizwa kwa ukamilifu …… Under this paragraph of the Constitution, the appellant had the right not only to be heard but to be heard fully. It has been held times without number that the right of a party to be heard before adverse action or decision is taken against such party has been stated and emphasized by the Court of Appeal and this court 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 decision would have been reached had the party been heard, because the violation is considered to be breach of natural justice (See EARL vs SLATTER & WHEELER (AERLYNE) LTD [1973] 1 WLR 51, A. G. vs RYAN [1980] A. C. 718 ABBAS SHERALLY & ANOTHER v ABDUL SULTAN HAJI MOHAMED FAZALBOY, Civil application no. 33 of 2002 – unreported). On this finding above, I hesitate to discuss other grounds of appeal as this legal issue alone, is sufficient to dispose of this appeal. 10 All the said, this appeal is partly allowed to extent explained herein, thus the proceedings of the trial tribunal as dated from 1st September 2023, post proceedings thereof and the resulting judgement reached are hereby quashed and set aside. I however direct that the case file be remitted to the trial tribunal to expeditiously complete the trial as per law in compliance to the discussion and findings above. It so ordered. DATED at SHINYANGA this 6th day of September, 2024. F.H. Mahimbali Judge. 11