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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA

AT BABATI LAND APPEAL NO. 47 OF 2023 (C/F Misc. Application No. 212 of 2022 Originating from Application No. 65 of 2020, in the District Land and Housing Tribunal for Babati at Babati) PAULINA HHAWU BARIYE.................................................. APPELLANT

VERSUS JOEL SHAURI............................................................. 1st RESPONDENT SAFARI HABIYE.......................................................... 2nd RESPONDENT

JUDGMENT 19th March & 30th April, 2024 D. C. KAMUZORA, J. The Appellant herein instituted Land Application No. 65 of 2020 before the District Land and Housing Tribunal for Babati (hereinafter referred to as the trial tribunal) against the Respondents herein for recovery of land measuring approximately three (3) acres situated at Mogitu village, within Hanang' district in Manyara region (hereinafter referred to the suit land). The Appellant claimed that she was allocated the suit land by the village council in 2010 hence, prayed for a declaration that she is the lawful owner of the suit land. She also prayed for permanent injunction to restrain the Respondents from interfering with the suit land, general damages and costs of the suit. Page 1 of 8 The record shows that on 05/07/2022 when the matter was called for hearing, the Appellant and her advocate were absent and the first Respondent moved the trial tribunal to dismiss the suit for want of prosecution and the suit was dismissed. The Appellant preferred an application before the trial tribunal, Misc. Land Application No. 212 of 2022 seeking for the dismissal order to be set aside and the suit be restored but the application was dismissed for want of merit. The Appellant was aggrieved with the trial tribunal's decision and preferred the instant appeal on one ground; "That, the Honourable chairperson erred both in law and fact

in dismissing Application No. 210 of2022 while the Appellant and her advocate had good cause supported by documentary evidence for their non-appearance to the tribunal on that material date." When the matter was called for hearing, Mr. Kuwengwa Ndonjekwa, learned advocate appeared representing the Appellant and Mr. Paschal Peter, learned advocate appeared representing the first Respondent but the second Respondent appeared in person. The counsel for the 1st Respondent prayed to argue the appeal by way of written submissions and other parties conceded to the prayer. Following parties'consensus on the mode of hearing, this court ordered the appeal to be disposed of by way of written submissions. Page 2 of 8 The Appellant and the 2nd Respondent duly complied to the submissions schedule but the first Respondent did not file his reply submission. Since the counsel for the 1st Respondent is the one who moved this court seeking for an order to argue the appeal by way of written submission, it was expected for him to comply to the submission schedule but did not. The 1st Respondent's failure to file the submission cannot not deter this court from determining the appeal for he has deliberately waived his right to be heard on appeal. I will therefore consider the submissions from the Appellant and the 2nd Respondent in determining this appeal. In support of the appeal, Mr. Kuwengwa

Ndonjekwa submitted that on 04/07/2022, he wrote a letter notifying the trial tribunal that he would not appear for he received a summons to appear before the High Court at Arusha in Land Revision No. 2 of 2022 and he attached the summons to that effect. That, the Appellant could not appear as well because she was sick. He contended that his non-appearance as an advocate and the Appellant's non-appearance was not out of contumacy. That, as an advocate, he was required to appear before the High Court while the Appellant was sick as per the medical report. To him, there was sufficient and reasonable reason for non-appearance thus, the trial tribunal ought to have adjourned the matter rather than dismissing it. To buttress his Page 3 of 8 submission, the learned advocate referred the decisions by the Supreme Court of Kenya in Erksteen v Kutosi Bukua [1951] 24 (2) KLR and Birkett v James (1977)2 ALL ER 802 and urged this court to quash and set aside the decision of the trial tribunal and order for restoration of Land Application No. 65 of 2020. On his part, the second Respondent had few to tell. He quickly supported the appeal as he submitted that the Appellant and her advocate had good reason for not appearing when the matter was fixed for hearing. He urged this court to allow the appeal. Having considered the parties' submission, the sole issue for determination is whether the

appeal has merits. In his application for restoration of original suit, the Appellant raised two reasons for non- appearance; one, that the Appellant was sick and two, that the Appellant's advocate was attending another case before the High Court at Arusha. In its brief ruling, the trial tribunal only assessed one reason for sickness and gave reason for disregarding it in determining the application. The trial tribunal chairman was satisfied that the reason for non-appearance by the Appellant as deponed in her affidavit contradicted the report made before him when the case was called for hearing hence, could not be relied upon in granting the application. It is unfortunate that Page 4 of 8 the trial tribunal did not address the reason for non- appearance of the Appellant's advocate if it could justify restoration. Now, taking that obligation as the first appellate court, I have gone through the trial tribunal's record in Land Application No. 65 of 2020 and assessed the application for restoration that was filed before the tribunal, Misc. Application No. 210 of 2022. It is in record that, all time during the proceedings before the trial tribunal the Appellant was represented by an advocate. It was therefore expected for the trial tribunal to address the reasons for non-appearance of the Appellant's advocate and rule out before concluding that there was no good reason for

restoration. The original application was scheduled for hearing on 05/07/2022 but, the Appellant's advocate claimed to have issued leave of absence letter to the trial tribunal requesting for adjournment as he was summoned to appear before the High Court at Arusha in Land Revision No. 2 of 2022. The said letter indicates that it was received by the tribunal on 04/07/2022 which is a day before the scheduled date. The proceedings for 27/05/2022 were annexed showing that the court issued order for appearance of parties on 05/07/2022 and a copy of chamber summons was also annexed to the affidavit. However, there are no proceedings for 05/07/2022 annexed to correspond the claim by the Appellant's advocate that he was appearing before the High Court at Arusha on that date. Thus, Page 5 of 8 the attached proceedings do not support the claim by the counsel for the Appellant that on the date the case was dismissed, he was appearing before the High Court at Arusha. Now the question is whether, a letter by an advocate on leave of absence sufficiently proved the reasons for the advocate's absence. Basically, the advocate being officer of the court is expected to act diligently to assist the tribunal/court to reach into a just decision. The letter by an advocate must state a true and clear fact which is justifiable. While the counsel for the Appellant sought for adjournment on account that

he was summoned to appear before the High Court at Arusha, there is no corresponding proceedings proving his appearance before the High Court at Arusha on that date. Although he annexed the chamber summons showing that parties were summoned to appear before the High Court at Arusha on 05/07/2022, that in itself is not a proof for appearance. Since the counsel for the Appellant was appearing before the court, he was bound to justify his non-appearance by annexing the proceedings of the High Court at Arusha indicating that he appeared before it on 05/07/2022. In that regard, there is no good reason for non-appearance of the Appellant's advocate before the trial tribunal. Turning to the ground of sickness that was deliberated upon by the trial tribunal, I agree with the tribunal chairman that there was Page 6 of 8 contradiction on the reason recorded in the proceedings and the reason advanced in the affidavit in support of application. While the tribunal record shows that the Appellant was bereaved, the affidavit shows that the Appellant was sick. The tribunal chairman disregarded the fact deponed in the affidavit on the ground that there was slight contradiction between the report made before the tribunal and the facts deponed by the Appellant in her affidavit in support of application. Now the question is whether the trial tribunal was right to disregard medical report on

account that it contradicted the prior report made before it on the whereabouts of the Appellant. Basically, medical reports intend to show the health status of a person and his/her capacity to follow the proceedings. Sickness is in law, a well acceptable reason to adjourn a case or extend time in certain cases because sickness is beyond human control. The Appellant's ground of sickness was supported by the hospital document (referred herein as medical report) indicating that the Appellant was attended at Katesh Health center as outpatient on 05/07/2022. Although there was a different report on the whereabouts of the Appellant when the matter was called before the trial tribunal, the tribunal was bound to assess if the medical report was genuine before opting to disregard it. Page 7 of 8 In my view, if oral account is preferred over the medical report, a justifiable reason must be shown for everyone to understand why the medical report was not given weight. In the matter at hand, there was no good reason to disregard the medical report and for that reason, the Appellant was able to justify her non-appearance. The trial tribunal was therefore wrong to disregard the Appellant's reason as justifying consideration in an application for restoration of the main application. From the above argument, I find merit in this appeal. The trial tribunal's ruling in Misc. Application No. 210

of 2022 is hereby quashed and set aside. Subsequently, the trial tribunal's order dated 05/07/2022 which dismissed the main application is also quashed and set aside. I therefore order restoration of Application No. 65 of 2020 in which, proceedings should proceed from where it ended. Taking into account that the suit has been pending since 2020, the case file be remitted back to the trial tribunal for hearing and I direct the matter be given top priority. In short, the appeal is allowed but in considering that the circumstance of the case that the substantive suit is yet to be determined on merit, I make no order as to costs. DATED at BABATI this 30th Day of April, 2024.

KAMUZORA

JUDGE Page 8 of 8