LAND APPEAL 304

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 304 OF 2022 (Originating from Application No. 117 of 2020, Ilala District Land and Housing Tribunal) MWAMVITA SAID (By Power of Attorney APPELLANT Mfanyeje Mohamed Ngowengo) VERSUS SELEMAN JONGO RESPONDENT JUDGMENT 3^*^ to 25^ June, 2024 E.B. LUVANDA, J The Appellant named above sued the Respondent above named for encroaching four feet of his area holding under residential licence Land No. ILA/BUG/MLP15/95 at Buguruni Area in Ilala. The Tribunal dismissed this claim and ruled in favour of the Respondent's counter claim. In the memorandum of appeal, the Appellant raised three grounds of appeal: One, the Chairman erred in law and fact by entertaining the case tainted with irregularities; Two, the Chairman erred in law and fact by relying on weak evidence of the Respondent's witness hence reaching unfair decision; Three, 1 the Chairman erred by failure to call the land officer to ascertain the size and extent of the Respondent's trespass when visiting the locus in quo. Mr. Benson Florence learned Counsel for the Appellant abandoned ground number three. He submitted that after the death of the Respondent one Seleman Jongo on 13/08/2021 until appointment of administrator there was no formal application made on behalf of the deceased by any person to be a legal representative, citing Order XXII rule 4(1) of the Civil Procedure Code, Cap 33 R.E. 2022 and section 51(2) of the Land Disputes Courts Act, Cap 216 R.E. 2019 arguing the Tribunal proceeded without an order for abatement of a suit against the Respondent. He submitted that after appointment of the administrator on 16/02/2022 no application was preferred by the legal representative of the deceased until the delivery of the decision on 13/09/2022 which was about seven months, faulting the Tribunal for failure to comply with Order XXII rule 4(3), Cap33 (supra). He cited Salehe Said Nahid vs National Microfinance Bank Pic and Another, Commercial Case No. 1 of 2015. He submitted that no application was made within prescribed time after demise of the Respondent, abatement order was no made, argued render the proceedings to be tainted with legal flaws. Number two, he submitted that the trial was conducted in non compliance of section 23 Cap 216 and regulation 19(2) of the Land Disputes Courts (The District Land and Housing Tribunai) Regulations, 2003 (sic, 174 of 2003), arguing it requires every assessor present at the conclusion of hearing to give his opinion in writing before the Chairman reaches the judgment. He cited Abdallah Bazamiye and Others vs R. [1990] TLR 42, regarding necessity of involving assessors. He submitted that the records of the Tribunal suggest only one assessor participated fully by giving opinion while the other assessor was not involved, arguing it is because the other assessor was not involved in the trial, hence it is his view that the proceedings were a nullity, citing Tubone Mwambeta vs Mbeya City Council, Civil Appeal No. 287 of 2018 CAT. Number three, the learned Counsel submitted that the locus In quo was not conducted in accordance with the established principles in Kimonidimitiri Manthekis vs Ally Asim Dewji and Seven Others, Civil Appeal No. 4 of 2018. He submitted that the records of the Tribunal does not show whether the parties and their witnesses attended the locus In quo, argued there is no records showing the witness adduced evidence on oath at the locus In quo, or being cross examined by either party, or when the Tribunal assembled it read the notes taken at the locus In quo. He submitted that the location of the locus In quo is not indicated. He submitted that the proceedings and decision is a nullity for reason that the evidence obtained during the visit of the locus In quo influenced the Tribunal's decision, citing page six of the impugned judgment. Number four, he submitted that the holding of the Tribunal that the open space should be free was not an issue, arguing such holding leaves the issue in dispute undetermined. In reply the Respondent submitted that the Tribunal was correct to proceed with the matter, for explanation that after the death of Seleman Jongo on 13/08/2021 the Tribunal ordered the matter to be stayed until the appointment of the administrator. He submitted that the procedure of appointing the administrator were followed and the letters of administration were submitted in court. He submitted that the other assessor was absent due to sickness, arguing was the reason for the other assessor not to give his/her opinion. He submitted that the records of the Tribunal show clearly that the witness adduced evidence at the locus in were cross examined by either party. He submitted that the location of the locus in quo was not indicated through the whole proceedings of the Tribunal, arguing no any miscarriage of justice caused. On rejoinder, the learned Counsel for the Appellant submitted that their submission was not in respect with the procedure for his appointment but on the position of law in respect to the time limit for compliance with such procedure since the Tribunal adjudicates cases in accordance with the law the 4 requirement of the law ought to be complied with unless it will be termed as kangaroo Court. He submitted that there is no records that the trial Tribunal allowed the witnesses to adduce evidence and being cross examined on the locus in quo. He submitted that since the Respondent concedes that the location was not indicated, queried as to how this Court will believe that the conduct in the locus In quo'H^s in respect to the land in dispute. I will start with ground number one. Arguably the provision of section 51(2) Cap 216 provide a gate way to the application of the provisions of Cap 33 (supra) where there is a lacuna in Cap 216. According to the provision of Order XXII rule 4(3) Cap 33, provide, 'Where within the time limited by law no application is made under subrule (1), the suit shall abate as against the deceased defendant' The learned Counsel for the Appellant ended making a complaint without saying what is a limitation period for the above procedure. He ended lamenting that the procedure for appointment took long about seven months. But could not say specifically what is the time and where is it located or provided for. Seemingly, he was either abrogating his duty which was engaged upon pay and now was extending his instructions to me, casting me a duty to do a research and look for answers on his behalf, which for sure is improper. It is expected for a lawyer when making and bringing the argument in court to submit all relevant materials for Cour appraisal and assessment. Be as it may, I will show the way. Item 16 of Part III to the Schedule of the Law of Limitation Act, Cap 89 R.E. 2019, provide. 'Under the Civil Procedure Code to have a legal representative of a deceased party, whether In a suit or on an appeal, to be made a party-ninety days' According to the records of the Tribunal, the late Selemani Salehe Jongo passed away on 13/08/2021, the letters of administration of his estate were granted to Bakari Selemani Jongo on 16/02/2022. The application to the Tribunal was made on 25/04/2022 being after expiry of nine months counting from the date when the Respondent met his demise on 13/08/2021. Therefore, in law, the application by Bakari Selemani Jongo can be said to have been made beyond the prescribed time of ninety days. However, the death of Seleman Salehe Jongo occurred after closure of defence case. It is the law that there will be no order for abatement which shall be made by the court by reason of death which occurs after hearing. Order XXII rule 6 Cap 33 (supra), provide, I bold a portion relevant to this subject, 'Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion ofthe hearing and the pronouncing of the judgment, butjudgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place' Therefore, a call for abatement was entirely misplaced. Regarding a complaint that the application by the administrator ought to be by way of formal application. I am unable to ascribe to this idea. There law and practice allow such application by the executor or administrator to be made informally, and this is the import and spirit of Order XLIII rule 2, Cap 33 (supra), I reproduce and bold a portion at a proviso which is relevant to my argument, 'Every application to the Court made under this Code shall, unless otherwise provided, be made by a chamber summons supported by affidavit: Pro vided that the Court may where it considers fit to do so, entertain an appiication made oraiiy or, where all the parties to a suit consent to the order applied for being made, by a memorandum in writing signed by all the parties or their advocates, or in such other mode as may be appropriate having regard to all the circumstances under which the application is made' Regarding a complaint that one assessor was not involved in giving opinion. As submitted by the Respondent the other member of the Tribunal was under ailment, hence could not get involved up to the stage of opining. Indeed, on the coram dated 11/07/2022 the learned Chairperson made it clear that the other member Mrs. Jokha was unable to make her opinion. Therefore, this ground is without substance. Regarding a complaint that procedures for visiting the locus In quo\Nexe flawed, I find merit on this ground. According to the records of the Tribunal specifically a coram dated 21/05/2022, depict a coram of the Honorable Chairman; members of the Tribunal: Mwakalanya and Jokha; complainant and respondent; the Tribunal's clerk was not recorded if he/she attended or not. Thereafter the Tribunal made the following comments, Shaurinlkwa ajW ya kutemebelea eneo la mgogoro na Baraza IIpo eneo la mgogoro' There was nothing more which was recorded. It is to be noted that at the time for visiting the locus In quo, it was after the Appellant had closed his case on 18/05/2021 and the Respondent closed his defence on 3/08/2021. There was no any order for recalling any witness from either party, nor the Tribunal Indicated if any witness was on attendance or recalled, nor oath was administered to any witness if any, no formal hearing, no one did anything, no any records whatever suggesting as to what transpired at the alleged locus In quo. Even the destination or location was not stated. In fact, there is no any records whatsoever can be traced in the Tribunal records regarding that visit. It is in the opinion of the assessor and in the impugned judgment at page six where it reflects as to what was observed at the scene. This is a fatal irregularity to the proceedings of the Tribunal. As submitted by the learned Counsel for Appellant, in so far the impugned judgment was to a large extent impacted by what transpired at the scene which remain to be a top secret to the learned Chairperson and Tribunal's members who visited there, the verdict emanating from the alleged visit cannot be salvaged. I proceed to quash the judgment and set aside its award. I nullify the proceedings for visiting the locus in quo dated 24/05/2022. I direct revisiting the locus in quo to be arranged and done within two months after dispatch of this order and fresh opinion by assessor(s) be made if applicable, and a fresh judgment be composed. For clarity, nullification of the Tribunal's proceedings is limited to the extend indicated above. Meaning that the remained proceedings remain intact. The appeal is partly allowed. No order for costs. Judgment delivered in the presence of the Respondent and Ali Mohamed Ngoengo appeared for the Appellant. E.B. tUV, A ip^E 25/( 6/2024 10