Omary Ally

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF MANYARA AT BABATI <- LAND APPEAL NO. 2 OF 2023 (Originating from the judgment and decree of the District Land and Housing Tribunal for Babati at Babati, in Land Application No. 16 o f 2020) OMARY ALLY................................. APPELLANT VERSUS NICODEMUS HANGU........................................ RESPONDENT JUDGMENT 7th March & 7thMay, 2024 Kahyoza, J.: Nicodemus Hangu sued Omary Ally for trespass to land at Lalaji Ward Tribunal, in which the judgment was entered in favour of Omary Ally ex parte. Aggrieved by the decision of Lalaji Ward Tribunal, Nicodemus Hangu appealed to the district land and housing tribunal (the DLHT) of Babati. The DLHT quashed the proceedings and judgment and ordered the case to start a fresh. Dissatisfied, Omary Ally appealed to this Court contending the DLHT did not evaluate and consider the evidence adduced by the appellant, the DLHT misdirect to hold that the ward tribunal was not properly constituted and the DLHT's proceedings were marred by procedural irregularities leading to "bad decision". 1 I Pag e The appellant and the respondent enjoyed the services of advocates. Mr Mlingi holding Mr. Kisaka's brief for the appellant and Mr. Festo advocate held Mr. Mbeya's brief for respondent. They submitted orally. I will refer to the submission while determining issues of raised by the appeal. Brief relevant facts to the appeal is that; Nicodemus Hangu sued Omary Ally for trespass. He gave evidence and Omary Ally the testified. The ward tribunal ordered the parties to call witnesses. On the date fixed for hearing, which is not disclosed in the record, Nicodemus Hangu defaulted to enter appearance whereas Omary Ally appeared with his witnesses. The ward tribunal heard Omary Ally's witnesses in the absence of Nicodemus Hangu. It proceeded to deliver the judgment in favour of Omary Ally, who was the respondent on the date which could not be ascertained from the record. Nicodemus Hangu appealed to the DLHT, which found that the ward tribunal's proceedings were marred by procedural irregularities and nullified the proceedings and ordered the matter to commence afresh. Omary Ally was not amused. I will commence with the third issue whether there exist procedural irregularities in the proceedings of the DLHT. 2 |P a g e As the record bears testimony, while the ground of appeal was to the effect that the irregularities were in the proceedings before the DLHT, the submission centred on the irregularities onto the proceedings of the ward tribunal. This is a second appeal. The second appellate court cannot discuss matters not raised and considered by first appellate court. It was proper for the parties advocates to devote their attention to matters that raised and considered by the first appellate tribunal. The appellant's advocate was of the view that the proceedings before the ward tribunal were not irregular. He contended that six members of the ward tribunal participated and that their names and signature are indicated. He contended that three of six members who attended were women as required by section 11 of the Land Disputes Court Act, [Cap.216 R.E. 2019] (the LDCA). The appellant's advocate submitted further that, even if there were irregularities the same did not occasion any injustice or that the respondent did not established the injustice caused. Relying on section 45 of the LDCA, the appellant's advocate submitted that the decision of the ward tribunal should not have been quashed on the ground of irregularities that occurred during the hearing. 3 |P a g e The respondent's advocate Mr. Festo took a different position as he supported the decision of the DLHT for nullifying the proceedings of the ward tribunal. He argued that, obvious irregularities marred the decision of the ward tribunal. He contended it was argued that judgment has two different dates. The judgment shows that it was delivered on 16.12.2020 and at another point that it was on 19.12.2020 when it was delivered. In his rejoinder, the appellant's advocate argued that the error as to the date cannot lead to nullification of the proceedings. There is no dispute that the proceedings of the ward tribunal were marred with irregularities. The DLHT found that there were irregularities and the appellant does not object to that there were no irregularities but that the irregularities were not fatal. I had a cursory review of the proceedings and the judgment of the ward tribunal to say the least there a lot of irregularities. I wonder whether the ward tribunal knew what it was therefore. Reading the proceedings one cannot tell one what dates were the hearing conducted and the judgment delivered. Thus, it is hard to tell if there was quorum required on every day the matter proceeded. The proceedings do not disclose the names of the members who were present and asked questions. 4 |P a g e The record shows that on a date not disclosed, Nicodemu Hangu who was complainant did not enter appearance, instead of the ward tribunal dismissing the case, as the requirement of law, it proceeded to hear Omary Ally's witnesses and enter judgment in his favour. I wish to reproduce the proceedings of Ward Tribunal on page three of the typed proceedings, thus - "Baada ya Baraza la Kata ya Lalaji kusimamia shauri hili upande i/va mlalamikaji na mlalamikiwa kupokea/kutoa mae/ezo yao. Upande wa mlalamikaji ulishindwa kuleta Ushahidi wake na kutohudhuria mbele ya Baraza. Na upande wa mlalamikiwa a/ifanikiwa kuwasilisha Ushahidi wa upande wake. Kwa kuzingatia mlalamikaji kutohudhuria mbele ya Baraza la Kata au kushindwa kuwasilisha Ushahidi wake. Baraza limepokea na kuendesha kesi upande mmoja yaani upande wa mlalamikiwa." (emphasis is added) The section 13 (1) & (2) of the Ward Tribunal Act, [Cap 206 [R.E 2019] states clearly that in case of absence of the applicant the ward tribunal shall dismiss the complaint. It provides that- "13. (1) On the date specified in the summons the parties shall\ subject to subsection (3), appear in person before the Tribunal give their evidence and answer all questions put to them by any member o f the Tribunal. (2) I f on the date specified in the summons the complainant does not without reasonable cause, appear, the Tribunal shall dismiss the complaint and it shall not subsequently be brought before it; but if the Tribunal considers that the absence o f the complainant is due to a reasonable cause or if the person complained against is absent, the Tribunal shall adjourn the hearing to some date which it may specify, and inform the appropriate authority o f the absence o f the person complained against from the date o f the order..." (Emphasis added) In the absence of Nicodemu Hangu, the respondent, who was the applicant before the ward tribunal, the tribunal was bound to dismiss the suit. Omary Ally, the appellant, who was the respondent before the ward tribunal had no duty to prove anything before the ward tribunal. It is trite law in civil claims that 'he who alleges must prove' See the decision of the Court of Appeal in Barelia Karangirangi Vs Asteria Nyalwambwa, Civil Appeal no 237 o f 2017, CAT at Mwanza (unreported) where it was held that- " The principle governing proof o f case in the civil suit is that the one who alleges must prove". 6 |Pa g e Also, case o f Abdul Karim Haji Vs Raymond Nchimbi Alois and Another Civil Appeal no 99 O f2004 CAT (Unreported) which held', - "It is elementary principle that he who alleges is the one responsible to prove his allegations". It was unprocedural for ward tribunal to proceed ex parte with Omary Ally, the respondent in the absence of Nicodemus Hangu, the complaint, who filed the case and who had the duty to prove his allegation did enter appearance. I am aware of section 45 of the LDCA which bars judgments to be set side due to errors or irregularities in the proceedings before or during the hearing. In the present case, the errors go to the root of the matter. Parties go court for justice not for injustices and the court or a tribunal is bound to decide a disputed referred to it by parties. Omary Ally had no dispute for the ward tribunal to determine. Section 45 of the LDCA states that- "No decision or order o f a Ward Tribunal or District Land and Housing Tribunal shall be reversed or altered on appeal or revision on account o f any error, omission or irregularity in the proceedings before or during the hearing or in such decision or order or on account o f the improper admission or rejection o f any evidence unless such error, omission or irregularity or 7 |P a g e improper admission or rejection o f evidence has in fact occasioned a failure o f justice". In the end, I am of the view that, the district land and housing tribunal to nullify the proceedings and set aside the judgment of the ward tribunal. I dismiss the appeal and uphold the decision of the district land and housing tribunal with costs. I order accordingly. Dated at Babati, this 7th day of May, 2024. John.R.Kahyoza. Judge. Court: Judgment delivered in the presence of the appellant, Mr. Godlisten Ayo holding Mr Mlingi's brief for the appellant and Mr. Festo, holding Mr. Mbeya's brief for resppondent, who is absent. Ms Fatina (RMA) is present. John.R.Kahyoza. Judge. 7.5.2024 8 |Page