pulkeria mchami administratrix of the estate of the late alfonsi chuma v daudi lungu 5 others 2023 tzhc 18682 30 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SONGEA DISTRICT REGISTRY (LAND DIVISION) AT SONGEA LAND APPEAL NO. 11 OF 2023 (Originating from the District Land and Housing Tribunal for Songea at Songea in Land Application No, 76.of2018) PULKERIA MCHAMI (Administratrix of the Estate of the Late Alfonsi Chuma) ,....... ......... ......................... . APPELLANT VERSUS DAUD LUNGU ........................... 1st RESPONDENT IZACK MVULA.............. .......................... 2nd RESPONDENT BENJAMINI LUOGA............... 3rd RESPONDENT MENAS HALLA ...... ......... ....... ........... ........ .......... ............ . 4™ RESPONDENT SYLVESTER MVULA .............................. 5th RESPONDENT ADAMU KAM BELENJE ......... 6th RESPONDENT JUDGMENT Date of Last Order: 27/06/2023 Date of Judgment: 30/06/2023 U. E. Madeha, J. To begin with, before the District Land and Housing Tribunal for Songea in Land Application No. 76 of 2018, the late Alfonsi Chuma along with another person who is not a party in this appeal, filed an application for the declaration that the Respondents are trespassers in a i piece of land measuring twenty (20) acres located at Mwanamonga Street within Songea Municipal. As a matter of fact, before the hearing of the application, Alfonsi Chuma died. In that case, the Appellant was appointed as the administratrix of his estates. As an administratrix, the Appellant took over and proceeded with the application. After a full trial, the Trial Tribunal found that the Appellant had failed to prove the claims that were tabled before it, and it decided in favour of the Respondents. Briefly, the facts that made the Appellant to file this appeal are based on the complaints on procedural issues on the conduct of the application. On 10th October, 2022, when the application was called for the hearing the Respondent's advocate informed the Trial Tribunal that the learned advocate for the Appellant was in hospital taking care for his child and he prayed for another date for the hearing. Unfortunately, the Trial Tribunal Chairman rejected the request and ordered the Appellant to continue with the hearing of the application in the absence of her advocate. This is the basis of this appeal and the Appellant complains are on the right to be represented by an advocate. The Appellant preferred this appeal on the following grounds: 2 i: That, the Tria/ Tribunal erred in law and in facts by harassing the Appellant herein for failure to give her the right of being represented. ii. That, the Trial Tribunal erred in law and in facts by hurrying up and considering the speed and neglecting the procedures and rights of the parties. Following the order of this Court, the appeal was argued by way of written submissions. It is worth considering the fact that, the Appellant was represented by none other than; Mr. Nestory Nyoni, the learned counsel, whereas the first, second, third and fourth Respondents appeared in person. The fifth and sixth Respondent failed to enter appearance despite being served with summons to appear. In fact, the efforts made by the Appellants advocate to serve the fifth and sixth Respondents through the Court Process Server proved futile. This Court Ordered summons to be served through substituted service and it was published in the Mwananchi Newspaper. However, on the date this appeal was scheduled for the hearing, the fifth and sixth Respondents didn't appear. This Court ordered the appeal to proceed ex-parte against the fifth and sixth Respondents. Arguing oh the first ground of appeal the Appellant's learned advocate submitted that the Trial Tribunal erred in law and facts by forcing the Appellants to proceed with the hearing while her advocate who was representing her was not present. Notably, he added that the 3 Appellant was forced to proceed with the hearing of the application while she was not prepared for the hearing. He further argued that the Trial Tribunal Chairman was to adjourn the matter to another date since the Appellants advocate had no tendency of missing the sessions. However, on that particular date, he had an emergency as he was sending his sick child to the hospital. As far as the second ground of appeal is concerned, he submitted that according to regulation 12 (2) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, 2003, at the first date of hearing the Chairman was required to read the application to the Respondents, although that was not done and the application proceeded for hearing. To cement his arguments, he added that even the first second and third Respondents were not present when the matter was heard and there was no need to proceed ex-parte against them even though they were represented by an advocate. Furthermore, he argued that it was wrong for the Trial Tribunal to order application to proceed ex-parte against them since their advocate was present when an ex- parte order was granted. In that case, they were denied the right to be heard. Lastly, the Appellant's learned advocate prayed for this appeal to be allowed and the matter ordered to be tried denovo for justice to be seen to be done. 4 On the other hand, the first, second, third and fourth Respondents in their jointly written submission argued that the Appellant didn't deny when the Trial Tribunal Chairman ordered to proceed with the hearing of the application without her advocate. Also? they added that the Appellant's learned advocate had no genuine reason of been absent and he was duty-bound to exercise diligent care to his client in dealing with the application before the Trial Tribunal. They further averred that'the Appellant was not denied the right to be heard since she was afforded the right to proceed with the hearing and to call her witnesses. On the second ground of appeal, they argued that the Trial Tribunal was correct to proceed with the hearing of the application and the matter was not heard ex-parte since the Appellant and her witnesses were heard. Apart from that, they argued that the Trial Tribunal didn't hurry in dealing with the matter but the hearing was done by following its procedures accordingly. Lastly, they prayed for the appeal to be dismissed as it is frivolous and misconceived. As much as I am concerned, having gone through the submissions made by both parties in this appeal, I will proceed to determine on the merit of this appeal. On the first ground of appeal the Appellant's learned advocate submitted that since the application was herd in the absence of the Appellant's advocate, the Appellant was denied the right 5 to representation which is a legal right. From the original records of the Trial Tribunal, it is crystal clear that the Appellant was represented by the learned advocate that is, Mr. Nyoni, But, on the date when the hearing of the application commenced the Appellant's learned advocate was absent and the Respondents' learned counsel informed the Tribunal that he was at hospital nursing his sick child. The Trial Tribunal rejected that information on the ground that there was no proof and ordered the Appellant to proceed with the hearing of the application in the absence of her learned advocate. In view of the previous dates, before the date when the hearing commenced, the Appellant's learned advocate had a good attendance record. Regulation 13 of The Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2002 provides for a right of representation. The regulation reads as follows: ’75 (1) The parties to the proceedings may during the hearing of proceedings be represented by an advocate or any other representative. (2) Where a party's advocate is absent for two consecutive dates without good cause and there is no proof that such advocate is in the High Court or Court of Appeal, the Tribunal may require the party to proceed himself and if he refuses without good cause to lead the evidence to establish his case, the Tribunal may make 6 an order that the application be dismissed or make such other orders as may be appropriate" Principally, from the cited regulation, it is clearly shown that the right to representation is among the rights before the Tribunal, As a matter of fact, the Tribunal is empowered to give the right to representation to the appellant since representation has been clearly articulated by the law. Reference is made in Alimasi Kalumbeta v. Republic (1982) TLR 329, the Court (Samatta, J.) had this to say: "But why is legal representation considered an important right? The answer to that question lies, I respectively think, in what Lord Denning, MR., said in Pett k Greyhoud Racing Association Ltd. [1969] 1 W.B125, atp. 132; ... it is not every man who has the ability to defend himseif on his own. He cannot bring out: the points in his own favour or the weaknesses in the other side. He may be tongue tied or nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A Magistrate says to a man; "You can ask any question you like"; whereupon the man immediately starts to make a speech. Ifjustice is to be done, he ought to have the help of someone to speak for him. And who is better than a lawyer who has been trained for the task?" 7 As far as I am concerned, I associate myself with the above view that a party to a suit has a right of representation in any proceeding before any adjudicating body. Notably, in the instant appeal when the matter was called for the hearing, the Appellant's learned advocate was not present and the Respondents' learned advocate informed the Trial Tribunal that the Appellant's advocate was at the hospital nursing his sick child. Disbelieving that information, the Trial Tribunal Chairman ordered the Appellant to proceed with the hearing. Being a layperson, she conceded to proceed with the hearing regardless the fact that, she was prepared for the hearing or not. The Respondents submitted that the Appellant was given a right to be heard since he testified and called witnesses. Regulation 13 (2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2002, regulates on the right of representation that if the representative fails to appear for two consecutive hearing dates without cogent reason the Trial Tribunal may order the represented party to proceed without his representative or make any other order. It is worth considering the fact that, the Appellant's learned advocate failed to appear only on one date on which the Respondents' learned advocate informed the Trial Tribunal that he was at hospital 8 which I think, it was among the cogent reason. The Trial Tribunal Chairman found there was lack of proof on whether the Appellant's advocate was in hospital. On my view, I find the Trial Tribunal Was to adjourn the matter to another date in order to prove whether he was at hospital. I am of the view that, the Appellants right of representation before the Trial Tribunal was abdicated. On the second ground of appeal, the Appellant's learned advocate submitted that the Trial Tribunal failed to follow proper procedures before starting the hearing of the application as the application form was not read to the Respondent. Also, he was of the view that the Trial Tribunal contravened Regulation 12 (2) of The Land Disputes Courts (the District Land and Housing Tribunal) Regulations, 2003, which requires the application to be read to the Respondents before hearing. Having gone through the original records of the Tribunal. I find that before framing the issues for determination, the Trial Tribunal read the claims to the second Respondent only, who was present when the application was called for hearing. The other Respondents were not present and there was no reason given on why the hearing proceeded in their absence. To add to it, the Trial Tribunal also ordered the application to proceed ex- parte against the first, second arid third Respondents, who were represented by an advocate who was present on that date. Looking at 9 the proceedings and the judgment of the Trial Tribunal and the orders that were made, I am of the opinion that no one can see that justice was done. What was required to be done was for the Trial Tribunal to make an order for last adjournment and for the advocates of both parties to be notified for another hearing date. On the same note, if he thought the application was to be heard promptly, he could have adjourned for a short period of two or three days in order to follow the proper legal procedures on the right of representation. I agree with the Appellants learned advocate that for justice to be done it must be seen to be done. This Court is persuaded by the decision made in R. v. Sussex Justice Exp Me Carthy at P. 259, where Lord Hewart, L.C.J., observed that: "It is not merely of some importance but of fundamental Importance that justice should not Only be done but should manifestly and undoubtedly be seen to be done. Nothing Is to be done which creates a suspicion that there has been an improper interference with the course ofjustice" In the final event, I proceed to allow this appeal by quashing the proceedings of the Trial Tribunal from the first date of the hearing, the judgment and its decree. I order the records of this appeal to be 10 remitted before the Trial Tribunal for retrial. Appeal allowed. I give no order for costs. It is so ordered DATED and DELIVERED at Songea this 30th day of June, 2023. 30/06/2023 COURT: Judgment delivered on this 30th day of June, 2023 in the presence of the Appellant, the Appellant's advocate and in the absence of the Respondents' advocate. The Respondents' advocate to be notified. Right of appeal is explained. ii