OMARY RAMADHANI

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND APPEAL NO. 99 OF 2023 (Arising from Land Application No. 44 of 2022 before the District Land and Housing Tribunal for Kondoa at Kondoa) OMARY RAMADHANI................................................ .....APPELLANT VERSUS KIDABALAKI KIDABUNG'ENDA RESPONDENT JUDGMENT Date of Last Order: 09/9/2024 Date of Judgment: 27/9/2024 MASABO, J.: The appellant herein is aggrieved by the decision of the District Land and Housing Tribunal for Kondoa (the trial tribunal) which declared the respondent the lawful owner of a parcel of land estimated to be 42 acres located at Songolo village, Songolo ward in Chemba District. His appeal is based on three grounds of appeal which I summarize as follows: One, the trial tribunal erred in law and fact by deciding in favour of the respondent without considering that he failed to prove the case on the balance of probabilities. Two, the trial chairman erred in law and fact by deciding in favour of the respondent based on weak and contradictory evidence. Three, the trial tribunal erred in law and fact by disregarding the strong evidence adduced by the appellant and his witnesses. Page 1 of8 When the appeal came for hearing, both parties had no representation. They appeared in person. Submitting in support of the appeal, the appellant submitted that the evidence he adduced before the trial tribunal was heavier than the respondent's evidence. Summarizing his evidence, he argued that, it was heavier because the respondent was not the owner of the suit land. He just leased it from the appellant. The lease agreement was in writing but when tendered before the trial tribunal, it was rejected. After the expiry of the 2- year lease agreement, the respondent offered to buy the suit land for a consideration of TZS 70,000/=per acre. He made an advance payment of TsZS 290,000/= and promised to pay the remaining sum but he did not. He also refused to vacate the suit land while deceivingly claiming to be its owner and that he acquired it in 1990. He prayed that this strong evidence be objectively considered and the trial court judgment be quashed and set aside. In reply, the respondent submitted that he moved to the suit land in 1990. The area was a bush. The only person around that area was Mhindi Yondu who became his neighbor. He submitted further that there was no agreement whatsoever with the appellant or any person because when he arrived at the suit land, it had no owner. Thus, the trial court's finding was well-founded. He summed up by praying that the appeal be dismissed for want of merit. Further to the submission above, it was observed through the record and the submissions and through the answers given by the parties when Page 2 of 8 prompted by this court that, none of the parties was present in court. Those present were their sons. For the appellant, it was his son Iliyasa Omari Ramadhani and for the respondent, it was his son Musa Kidabalaki Kidabung'enda. It was observed further that in the trial tribunal's record there are documents written by the parties each of them assigning his son the responsibility to appear on his behalf. I prompted the purported representatives to address me on the appropriateness or otherwise of such letters and the competence of this appeal. Being lay, they could not grasp the concept. All they confirmed is that they are representatives of their elderly parents who could not, for reason of ailment and old age pursue the case. The sole question for determination is whether the appeal has merits. Order XIX rule 2 of the Civil Procedure Code, Ca 33 R.E. 2019 mandates this court while determining an appeal, to consider and determine points other than the points set out in the memorandum of appeal as grounds of appeal. It states: 2. The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Court, in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court under this rule: Provided that, the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground. Page 3 of 8 Since, as stated above, the parties herein had an opportunity to address the court on the issue I raised suo motto, I will invoke the powers above and determine it first before I proceed to the grounds set out in the memorandum of appeal. From the proceedings, I have observed that at the commencement of the proceedings, the parties were present. The appellant who was then the applicant, was present on 18th October 2023 when the matter was called for first mention. He was also present on 13/11/2023. The respondent was reported sick by his son, Musa Kidabalaki. What transpired after these dates is what has caught my attention. The appellant wrote a letter to the trial chairman praying that his son be allowed to appear as his representative, the reason thereof being his illness and old age. The main substance of the letter is reproduced below for easy of reference. YAH. MAOMBI YA KUPOKEWA KESI NA MTOTO WANGU NDG. ILIYASA OMARI RAMADHANI Mimi Omari Ramadhani Yahe naomba kupokewa kesi hii ya mgogoro wa ardhi kati yangu mimi Omari Ramadhani na Gidabalaki Gidabungenda: kesi No. 43/2022 iliyoko B/la Ardhi na Nyumba Kondoa Sababu za kupokewa kesi: Maradhi yanayoendelea kunisumbua mara kwa mara. Mimi-Mpokewa Kesi Omari Ramadhani Yahe Mimi Mpokea Kesi-Iliyasa Omari Ramadhani. Asante ni matumaini yangu kuwa maombi yangu yatapokelewa. Mimi ILIYASA OMARI RAMADHANI -Nimekubali kumpokea mzazi wangu ndugu Omari Ramadhani kesi yake kesi No. 43/2022 kutokana na maradhi yanayomsumbua mara kwa mara pamoja na uzee. Asante. Page 4 of 8 The letter is endorsed to have been received by the trial tribunal on 29/11/2023. On that date, the application was coming for mention whereby, the applicant's son Iliasa Omari Ramadhan reported that the applicant was sick. Musa K. Kidabung'eda appeared as a representative of the respondent. Three days later, on 1/12/2023 the respondent wrote a letter to the trial chairman appointing his son Musa Kidabalaki Kidabung'enda to be his representative and mentioned his old age and illness as the reasons for such appointment. The body of the letter is as seen below: YAH. KUMTEUA MWANANGU MUSA KIDABALAKI KIDABUNG'ENDA KUNIWAKILISHA KATIKA KESI. Husika na Somo tajwa hapo juu. Mimi nimeshitakiwa katika kesi Na. 44 Mwaka 2022, katika Baraza la Ardhi na Nyumba la Wilaya Kondoa, na Mdai ni Ndugu Omari Ramadhani. Kwakuwa mimi ni mzee wa umri mkubwa na nina maradhi ya mara kwa mara sitoweza kuhudhuria kesi hiyo katika Baraza lako tukufu. Wako Mdaiwa, Kidabalaki Kidabung'enda Nakala:- Musa Kidabalaki Kidabung'enda Mdai, Omari Ramadhani. The records reveal that the trial tribunal received the two letters on 29/11/2022 and 19/12/2022, respectively. The parties never appeared before the tribunal, thereafter. They left the proceedings to be conducted by their sons. And, after the trial tribunal's decision, it was the appellant's son who instituted the appeal. For the respondent, it is his son who entered Page 5 of 8 appearance. On the date of hearing, it was these two who prosecuted and defended the appeal. I have asked myself whether the two letters above conferred on Illiasa Omari Ramadhani and Musa K. Kidabung'enda the legal right to prosecute and defend the suit in the trial tribunal and to institute and prosecute/defend the appeal in representation capacity. Put otherwise, did/do these two have the locus standi? Undeniably, the law authorizes a person to commence civil proceedings on behalf of another person and to prosecute or defend on that other person's behalf. Such authorisation is found under Order III Rule 1 of the Civil Procedure Code. Cap 33 R.E. 2019. It states: Any appearance, application or act in or to any court, required or authorised by law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person or by his recognised agent or by an advocate duly appointed to act on his behalf or, where the Attorney-General is a party, by a public officer duly authorised by him in that behalf The import of this provision, as interpreted in numerous authorities is that, while representation is permitted, it can only be done by an advocate duly appointed or by a recognized agent defined under Rule 2(a) to mean:- "persons(s) holding powers-of-attorney, authorising them to make appearances or applications and to do such acts on behalf of such parties" Page 6 of 8 Do the two letters stand as powers of Attorneys. A power of Attorney being a legal matter, is normally conferred through a legal instrument chargeable with stamp duty as per section 5 of the Stamp Duty Act, Cap 189 read together with item 46 of the Schedule to the same Act. If, unlike in this case, the Power of Attorney concerns a registered land, it is mandatorily registerable under the Registration of Documents Act Cap. 117. The two documents whose substances are reproduced above, do not have these qualities. They are mere correspondences between the parties and the trial chairman. Hence, they do not confer the said Illiasa Omari Ramadhani and Musa K. Kidabung'enda the legal right to appear on behalf of the parties. As this is not enough, although the documents appear in the tribunal's case file, they are not part of the proceedings. Other than loosely identifying Illiasa Omari Ramadhani and Musa K. Kidabung'enda as representatives of the appellant and the respondent, respectively, the trial tribunal's proceedings are conspicuously silent about the two letters. There is neither an order nor an indication that they were formally tendered in court to form part of the proceedings. Accordingly, even if such documents were permissible, they would not, for reasons of not being part of the proceedings, be considered to have conferred any right on the duo to appear in the representative capacity. In the foregoing, I am fortified that the proceedings were conducted by persons with no locus standi. This is a glaring irregularity to which this court can not turn a blind eye as, on its account, the proceedings of the trial Page 7 of 8 tribunal from the date the parties were said to be represented and the judgment thereto, were all rendered a nullity. As this sole ground suffices to dispose of the appeal, I will not determine the grounds raised by the appellant. Accordingly, I invoke the revisional powers of this court in section 43(2) of the Land Dispute Courts Act, Cap 216 R.E 2019, revise, quash and set aside the proceedings of the trial tribunal from 23rd January 2023. The judgment and decree of the trial tribunal are also, for the aforementioned reasons, quashed and set aside. I further direct that the record be remitted back to the trial tribunal so that the application can proceed from the date where the parties appeared in person. If the parties still wish to be represented by their sons or any other person, they should follow the necessary legal procedure. Since the ground upon which the appeal has been disposed of was raised suo motto by the court, I have found it to be in the interest of justice that the parties bear their respective costs. DATED and DELIVERED at DODOMA this 27th day of September 2024. Page 8 of 8