PADRE AVITUS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY) AT BUKOBA LAND APPEAL NO. 6677 OF 2024 (Arising from the District Land and Housing Tribunal for Muieba at Muieba in Application No. 26 of2018) PADRE AVITUS RUKURATWA KIIGUTA t/a SACRED HEART SECONDARY SCHOOL.............................. APPELLANT VERSUS PEREUS CHARLES NGAIZA (As administrator of Estate of the late TIBANYENDA CHARLES JONATHAN NGAIZA)......... 1st RESPONDENT CROSPERY KYABONA LWEYENDERA........................ 2nd RESPONDENT JUDGMENT 9th October & 7th November 2024 KIWONDE, J. Before the District Land and Housing Tribunal for Muieba at Muieba, the respondent, Pereus Charles Ngaiza filed Land Application No. 26 of 2018 suing Joshua Ngaiza for selling a clan land to the appellant, Padre Avitus Rukuratwa for the consideration of TZS 15,500,000/= without the consent of clan members. Upon conclusion of the trial, it was held that the land in dispute is a clan land which was owned by Abalwani clan. Therefore, the sale of the clan land was found invalid for failure to obtain consent from the clan 1 members. The appellant, (Padre Avitus) was restricted from using the said land and ordered to vacate therefrom. The then 2nd respondent (Crospery Kyabona Lweyendera) was ordered to return to the appellant TZS 15,000,000/=, the purchase price of the clan land. Aggrieved with the said decision, the appellant has preferred the present appeal based on four (4) grounds of appeal below: i. That the trial tribunal erred in law, exhibit DE2 which was submitted and cleared for admission prepared by the late Joshua Ngaiza, the 2nd respondent was not judicially noticed by the trial tribunal. The oral evidence by PW1 Pereus Charles, PW2 Penina Joshua Ngaiza, PW3 Juliet Joshua Ngaiza and Dw5 Crospery Kyabona Rweyendera which was oral and hearsay evidence was illegally admitted. That no evidence of any oral agreement or statement shall be admitted as between the parties to the instruments or their representatives in interest for the purpose of contradicting, varying, adding or subtracting. Also, the trial tribunal wrongly recorded the evidence of DW1 and DW2. ii. That the trial tribunal misdirected itself in law. The case was registered in 2018. It proceeded after the lapse of two years 2 without seeking nor obtaining consent from the Registrar of Land and Housing Tribunal contrary to regulation 7(2), G. N. No. 177 of 2016. iii. That the trial tribunal misdirected itself in law. The 1st respondents claim over the late Salvatory Ngaiza of Abalwani clan who died intestate in 1948 is statutorily time barred. Joshua Ngaiza inherited the Abalwani clan land in 1948. But the clansmen chased him away from the clan land and house in 1950 as per exhibit DE2. The claim is made without neither seeking nor obtaining consent to claim out of time from neither the court nor from the Minister of Constitutional Affairs contrary to the law. iv. That the trial tribunal erred in law. This matter was brought in the wrong lex for a. while PW1, PW2, PW3 and DW5 cannot represent the deceased without the Probate and Administration letters of the late Salvatory Ngaiza, Joshua Ngaiza and Charles Tibanyenda Ngaiza who died intestate. The appellant prayed this court to allow the appeal with cost, declare the appellant as a bona fide purchaser for value, quash the entire trial tribunal proceedings, judgment, decree and orders thereon and incidental orders that may be necessary be granted. 3 During hearing of this appeal, the appellant was represented by Mr. Eliphaz Bengesi learned counsel, while, the respondents were represented by Mr. Gildon Mambo, learned counsel. I have considered the submissions of both sides and now I turn to deliberate on them to resolve the grounds of appeal. The main issue for determination is whether the appeal is meritorious or otherwise. However, before embarking to the main grounds of appeal, it is imperative to resolve the legal concern raised by the counsel for the appellant in the course of hearing of this appeal. The counsel said the appellant was deprived of his right to be heard. He said the appellant is in Chicago in America but his affidavit was rejected. The counsel for the respondents resisted this argument on reason that it is not among the grounds of appeal. It is true that this concern was raised in the course of hearing of the appeal. The general principle of law is that matters not raised and dealt with in the trial court or tribunal, cannot be determined on appeal. The exception is that if the same is a point of law, then it can be entertained by the appellate court. This was a position in Hood Transport Co. Ltd 4 Versus East African Development Bank, Civil Appeal No. 262 of 2019, Court of Appeal of Tanzania at Dar-es-salaam. In so far, this is a point of law, this court has to determine to see to it if it affects the root of the case. The tribunal records indicate that on 13.09.2023 Mr. Eliphazi Bengesi the learned counsel for the appellant, prayed the appellant (the then 1st respondent) to give his evidence through swearing an affidavit because the 1st respondent, now the appellant, is residing outside Tanzania. The records show that after such prayer, the tribunal adjourned the case and the counsel for the appellant was ordered to make research on the law which allows the appellant to give his testimony through affidavit. On the date fixed for hearing, that is, on 20.11.2023, Mr. Bengesi prayed the matter to be adjourned until January 2024 on the ground that at that time the 1st respondent, now the appellant, would be on leave so he will manage to give his evidence before the tribunal and he prayed for the order of the 1st respondent to give out his testimonies by way of affidavit to be vacated. The prayer was granted. On 16.01.2024 when the matter was set for hearing, Mr. Bengesi prayed for 1st respondent to submit his testimonies through affidavit because he did not make it up for hearing. When he was 5 asked about the law which allows giving evidence through affidavit, Mr. Bengesi said he did not have any law in support of his prayer. From there the counsel asked to close his case. So, it is clear from the records of the trial tribunal that the appellant was not heard. The trial tribunal had been informed that the party to the suit, the present appellant was abroad, Chicago in America. But the intention was to testify in court. Thus, the counsel for the appellant was forced and necessitated to close the case without hearing the appellant due to counsel's lack of the law allowing the appellant to adduce evidence by affidavit. In my view, the right to be heard is fundamental. It should not be lightly deprived. In Christina Makondoro Versus Inspector General of Police and another, Civil Appeal No. 40 of 2019 [2021] TZCA 30 (22nd February 2021) it was held //7ter^/Xathat it is a cardinal principle of natural justice that no person should be condemned unheard. The trial tribunal deprived the appellant his right to be heard. This vitiated the whole proceedings and the decision or orders thereto. In law, violation of the principle of natural justice, renders the entire proceedings, judgment and decree thereto a nullity. For that matter, I invoke the revisional powers under section 43 (1) (a)(b) of the Land Disputes Courts 6 Act Cap 216 (R. E 2019) to revise and nullify the trial tribunal proceedings, quash the judgment and set aside the decree or orders thereto. I make no order as to cost given the circumstances of the appeal. Order accordingly. Dated at Bukoba this 7th November 2024. F. H. ONDE JUDGE 07/11/2024. Court: Judgment is delivered in chamber in the presence of Mr. Gildon Mambo learned counsel for the first respondent, second respondent and Grace Mutoka (RMA) this 7th November 2024 but in the absence of the appellant and the right of appeal is explained. H. KIWONDE JUDGE 07/11/2024 7