patience luoga njeje vs vanancia r kiswaga 2020 tzhclandd 2233 25 september 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 40 OF 2018 PATIENCE LUOGA NJENJE..................................................... APPELLANT VERSUS VENANCIA R. KISWAGA.........................................................RESPONDENT (Appeal from the decision of the District Land and Housing Tribunal for Kinondoni District at Mwananyamala) Dated the 18th day of February, 2018 in Application No. 507 of 2016 JUDGMENT S.M. KALUNDE, J.: Dissatisfied with the decision of the Kimara Ward Tribunal in Land Dispute No. 25 of 2015, the Appellant filed an appeal with the District Land and Housing Tribunal for Kinondoni District at Mwananyamala ("the tribunal"). The appeal was registered as Land Appeal No. 22 of 2016. On 24th October 2016 the tribunal dismissed appeal for non-appearance of the Appellant. Aggrieved by the dismissal order the Appellant filed Misc. Land Application No. 507 of 2016 seeking to set aside the dismissal order that was issued on 24th October 2016 in relation to Land Appeal No. 22 of 2016. On hearing both parties the tribunal dismissed the application with costs for lack of merit. The Appellant is challenging the decision of the tribunal on six grounds. However, the substratum of the complaint rests on two main grounds: (1). The trial Chairman erred in law and in fact in relying to visit of the locus in quo which was not done per the law; (2). That the trial Chairman erred in law and in fact in holding that the applicant has no good cause to warrant restoration of the appeal; On review of pleadings and submission of the parties, the critical issue for determination by this Court in this appeal is whether the application for re-instatement was dismissed after due consideration and on proper principles. Before the tribunal the application was brought under regulation 11(2) of the Land Disputes Courts (District Land and Housing Tribunals) Regulations, 2002 and order IX rule 4 and Section 95 of the Civil Procedure Code, Cap. 33 R.E 2019. Regulation 11 (2) reads: "/I part to an application may, where he dissatisfied with the decision of the Tribunal under subregulation (1), within 30 days apply to have the orders set aside, and the Tribunal may set aside its orders if it thinks fit so to do and incase of refusal appeal to the High Court." I am of the settled view that to succeed under regulation 11 (2) above the applicant has to show that he did not appear and that he was prevented from doing so by "sufficient cause" or "good cause". Accordingly, the applicant had a duty to demonstrate that there were sufficient reasons that prevented him from appearing on 2 the date fixed, on the other hand the tribunal had a duty to exercise it discretion in determining whether the applicant has demonstrated sufficient reasons. Having observed that, I will now proceed to answer the above two grounds seriatim. The gravamen of the applicant's grievances relates to the allegation that the tribunal made an error in deciding the merit of the appeal in an application for setting aside a dismissal order. The decision was made relying on the report of the visit to the locus in quo that was carried out in breach of the law. This complaint is to be found in the 2nd, 3rd and 4th grounds. For purposes of this appeal the grounds shall be determined together. Submitting on the issue Mr. Mnyukwa argued that before the tribunal was an application for restoration of a dismissed appeal, surprisingly, the Chairman went on to determine the issue on whether the appellant had trespassed to the respondent's land. He did so by visiting the locus in quo and without affording parties the right to be heard. For the respondent, Mr. Mbedule argued that the 2nd, 3rd and 4th grounds related to one another. I agree with him on this. He went on to argue that the Chairman of the tribunal was right in visiting the locus in quo. In his view the visit was made in the spirit of resolving the dispute. He reasoned that the decision of the tribunal did not make any reference of the visit to the locus in quo. In rejoining Mr. Mnyukwa maintained that before the tribunal was an application for restoration, in his view the Chairman supposed 3 to dispose of the application instead of determining the merit of the appeal. He reasoned that having misdirected as to its duty the tribunal canvassed on the merits of the appeal instead of determining the application. On review of the Court's record, I hold a view that the trial Chairman did not give due consideration of what was relevant for the application before him. In accordance with the cited provision of the law what was relevant before him was whether there was sufficient cause for non-appearance of the applicant. It is also not in dispute that part of the reason for the dismissal of the appeal before the tribunal was that there was no merit in the main appeal. This conclusion was made upon consideration of the observation made at the site visit. Part of the decision of the tribunal reads. "Another point to be considered by this Tribunal is the likely of success of the dismissed appeal. I agree with the applicant's counsel that merits of the appeal can better be determined upon hearing of the appeal, however, the Tribunal is not precluded from gauging into the matter and be enlightened on the likelihood of its success. Though the tribunal is not a witness, upon site for inspection made on 3rd day of October, 2017 it was clearly observed that the applicant herein has trespassed the respondent's area. It is the same observation made by the Ward tribunal. So, even if this tribunal would restore the dismissed appeal, the appellant if he is to win will be on technicalities only. Since this tribunal has to be 4 obsessed with merits of the case and not technicalities, we find no good reason to grant this application, "[emphasis mine] On perusal of the tribunal records I noted that on 21st August, 2017, the Chairman ordered that site visit will be on 03rd October, 2017. Records of the tribunal show that on the 03rd October, 2017 the tribunal made the following observation: Tribunal: Locus in quo has been visited. It was observed as found by the Ward Tribunal. However, it appeared parties can settle the matter out of court. Orders: 1. Mention on 17/10/2017 2. settlement deed to be filed before. Signed: 03/10/2017 On the basis of the above visit, the Chairperson made a conclusion that the applicant has trespassed the respondent's area. He went on to conclude that there was no merit in the appeal and consequently he dismissed it. The question now is whether, the Chairman was right in dismissing the appeal on this ground. I hold a view that, the Chairperson was not entitled, on his own motion, to make a visit to the locus in quo in an application for restoration. It is this misjudgment and error that made him conclude that appeal had no chances of success. Clearly, this issue was to be argued by the parties at the hearing of the appeal and not to be decided by the 5 tribunal, on its own motion and without hearing the parties, in an application for restoration. There is an unbroken chain of authorities to the effect that "chances of success of the intended appeal though a relevant factor in certain situations, it can only meaningfully be assessed later on appeal after hearing of the arguments from both parties". See Tanzania Posts & Telecommunications Corporation vs. Ms. Bs Henrita Supplies (1997) TLR 141. In the same vain, I am of a settled view that the visit to the locus in quo was uncalled for and unprocedural when hearing the application for restoration; and that it had influenced the decision of the tribunal to the detriment of the appellant. This ground has merit and I will allow it. There is also a complaint that the trial Chairman erred in holding that the applicant has no good cause to warrant restoration of the appeal. In the affidavit filed in support of application before the tribunal, the appellant, applicant then, argued that non- appearance was occasioned by an honest but mistaken belief that the matter was due for hearing on 24th November 2017 while, in fact, hearing was due on 24th October, 2017. From the above analysis, this Court finds that the trial Chairperson did not properly exercise his discretion in the consideration of whether to re-instate the appeal or otherwise. Indeed, if he had properly given consideration of the facts and issues presented before him he would have arrived at a different decision. 6 In Collector, Land Acquisition, Anantnag v. Mst Katiji, the Supreme Court of India has held— "...The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. But the message does not appear to have percolated down to all the other Courts in the hierarchy." [emphasis mine] The rationale for the above approach can be that the courts do not want a meritorious matter to be thrown out on technical grounds and some inadvertence human error of advocates. I am also alive with the position adopted in the celebrated case of Githere vs. Kimungu (1985) 1 EA 101, CAK; the court held that "...where there has been a bonafide mistake and no damage has been done to the other side which cannot be sufficiently compensated by costs, the court should lean towards exercising its discretion in such a way that no party is shut from being heard; accordingly, a procedural error, or even a blunder on point of law, on the part of an advocate (including that of his clerk), such as a failure to take prescribed procedural steps or take them in due time, should be taken with a humane approach and not without sympathy for the parties, and, in a paper case, such mistakes may be a ground to justify the court in exercising its discretion to rectify the mistakes if the interests of justice 7 so dictate, because, the door of justice is not dosed merely because a mistake has been made by a person of experience who ought to have known better, and there is nothing in the nature of such a mistake to exclude it from being a proper ground for putting things right in the interests ofjustice and without damage to the other side. But whether the matter shall be so treated must depend upon the facts of each individual case." [emphasis mine] In the present case the appeal was dismissed for failure to turn up on 24th October, 2017 when the counsel for the appellant sought the appeal was scheduled for 24th November 2017. As observed above the discretion should be exercised compassionately and with a human touch. For the foregoing reasons I find merit in the argument of the appellant. Had the court properly exercised its discretion, it would have restored the appeal, I consequently do. In the foregoing, I allow the appeal. The decision and orders of the tribunal are set aside. The appeal is restored. In the upshot, I order that the appeal be tried at the tribunal with each party presenting their case for consideration. This being a fault of the tribunal, each party to bear their own costs. DATED at DAR ES SALAAM this 25th day of SEPTEMBER, 2020. S. M. KALUNDE JUDGE 8