20100421 TZHC Mbeya

I IN THE HIGH COURT OF TANZANIA (LAND DIViSION) AT MBEYA LAND CASE APPEAL NO.11 OF 2008 (From the Decision of the District Land and Housing Tribunal of Mbeya District at Mbeya In Land Case No.16 of 2005 PHILIMON MDACHI & ANOTHER ........APPELLANTS VERSUS THE REGISTERED TRUSTEES I OF THE PENTECOSTE CHURCH .......RESPONDENT OF MBEYA JUDGEMENT 26.3.2010 & 21.4.2010 LUKELELWA, J. In the District Land and Housing Tribunal for Mbeya the respondents The Registered Trustees of Pentecoste Church of Mbeya successfully sued the appellants. 1. Phillimon Mdachi 2. Isakwisa Mwansile for the following reliefs:- Declaration that the Applicant is the lawful owner of the disputed premises and Land situated on title No.3 659 - DLR. Eviction Order to be issued against the Respondents. Perpetual injuction ordei' against the Respondents from unlawful interference with the suit premises and Land. 1 Surrender of all church properties in unlawful possession by the / Respondents annexed in Annexture "PA" above. Costs of the Application be provided by the Respondents. Any other Relief(s) this Honourable Tribunal deems fit and just to grant. It is averred under paragraph 6(a) of the application that, "The Respondents have wrongfully invaded the area of the Applicant and therein they have established their own Church in the name of free Pentecostal church of Tanzania and causing unnecessary disturbance to the use and enjoyment of the properties in the disputed premises and Land. 6(b) List of relevant documents to be annexed, if any:- Church properties wrongful in possession of the Respondents is annexed as annexture (PA). Certificate of occupancy as annexture "PB". The appellants had averred under the relevant paragraphs in their written statement of Defence that the honourable Tribunal lacks jurisdiction, the matter was Res Judicata and at the same time sub-judice in the District Court of Mbeya. That the application is bad for joinder of parties. The appellant were wrongly joined as leaders of the Free Pentecostal Church of Tanzania under the Umbrella of UTvIPT which has Registered Trustees. The appellants being natural persons there was no cause of action against them. Further that the properties were acquired legally through the judgements of the Court in Civil case No.15 of 1998 in the District Court of Mbeya and DC. Civil Appeal No.28 of 1999 in the .High Court of Tanzania 2 together with execution order of the Court, the judgments which are still in force and not faultered in any manner, thus the matter was Res judicata. In what appears now to be a trade mark for all Land and Housing Tribunals irrespective of the legal qualifications of the Chairpersons of those tribunals, they adopt procedures unknown to any laid down procedural law governing the conduct of the matters in their tribunals. I'm told that the tribunal chairmen had gone various training in a form of seminars as usual supported by the donor Communities. Be what may on 22/7/2005 Mr. Naali learned advocate reminded the tribunal Chairman about the preliminary objection the appellants had raised in their written statement of Defence. The record shows as follows:- "Naali: We raised some objection, but the same has not been replied, there are 4 objections (PlO). Application: I will hear it okay." Then Mr. Naali made a submission in support of the preliminary objection. The Tribunal chairman asked the respondent then applicant to cross examine Mr. Naali advocate as if he was a witness. Then Mr. Naali advocate was allowed to Re-examine himself. Then the chairman, one M. Makombe, gave two order as follows:- Order (1) Ruling 10/8/2005 (2) The parties to bring all the exhibits that shows the matter is Res judicata (26/7/2005) 3 Order: Ruling on 16/08/2005. The respondents were not allowed to make submissions objecting the preliminary objections raised by the appellant. The Ruling dismissing the preliminary objection was delivered on 23 day August 2005. Thereafter countless adjournments on undisclosed reasons followed. On 20.6.2007 appear to be the last date for chairman Michael Makombe to handle the matter. On 18.10.2007 the matter came for hearing before Mrs. Riwa - Chairperson, who ga\'e an order for last adjournment on 13/11/2007. It is not clear why she did not hear the case as scheduled. On 13/11/2007 the matter came before T. Wagine Chairman. Mr. Massawe learned advocate raised an objection that Lamson Sikazwe is not in the List of Trustees of Pentecost church of Mbeya. This was overruled and deferred to the main application. On 22.01.2008, the matter came before T. Wagine Chairman again. This time Mr. Massawe learned advocate for the respondent, then applicants, asked the Chairman for leave to argue the application by way of written submissions. The prayer was granted, Mr. Mkumbe learned advocate for the appellant appeared to have nodded in agreement with the player. The judgernent was delivered on 31.3.2008. In the judgernent, the learned Chairperson of the tribunal had this to say at paragraphs 1 & 2 at the top of page two of the Copy of typed ri judgement that, "This case is not heard by evidence but the Advocates ) Mr. Masawe for the Applicant and Mr. Mwakolo for the Respondents wrote the written submissions of this matter. I know that this is not a proper way of treating the case but counsels failed to have time to call the witnesses of this case and both consented to written the final submissions of the whole matter." The appellants have assailed the above judgement and the entire proceedings at the District Land and Housing Tribunal on several fronts. The appeal was argued by way of written submissions. As demonstrated herein above the procedure adopted by the trial District Land and Housing Tribunal Mbeya in this Case, Contravened all legal procedural rules known including Regulations 11(1) (a) regulation 154 and regulation 19(1) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations 2002 cited by Ivir. Francis K. Stolla learned advocate for the appellants, which provide that "Regulation 11(1) on the day the application is fixed for hearing the Tribunal shall (a) where the parties to the application are present proceed to here the evidence on both sides and determine the application. Regulation 14 "The parties to the application or their advocates may during the hearing call such witness as may be required to produce evidence before the Tribunal and make final submissions either orally or in written form as the Tribunal may direct." 5 I agree, there are situations where a suit can be disposed of by way of • written submissions in Civil Cases. These rare cases include interpretation of statutes by Courts, Constitutional interpretations, human right issues etc. This application was not one of the above cases, there were many serious issues which had been raised, which required proof by calling witnesses. These includes the locus stand of the parties in the proceedings. Having so adumbrated, and having given due considerations of the proceedings at the trial, I have nothing but to quash all the proceedings at the trial District Land and Housing Tribunal. For interest of Justice, the respondents are at liberty to institute another application against the proper respondents with a view of finally disposing the matter. In the case at hand a judgement against the appellants does not prevent the Registered Trustees of Free Pentecostal Church to claim the properties from the Registered Trustees of Pentecoste church of Mbeya. The appellants shall have their costs for this appeal and the Costs at District Land and Housing Tribunal at Mbeya. Order accordingly. S.B.Luk*J a Judge 21/4/2010. ro