Raphael Kimaro Judgment

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

AT MWANZA LAND APPEAL NO 21837 OF 2024 (Arising from the decision of the District Land and Housing Tribunal for Mwanza at Mwanza in Application no. 128 of 2010 before Hon. Murirya) RAPHAEL KIMARO …………………………………………. APPELLANT

VERSUS BENEDICTO JOHN …………………............................. RESPONDENT

JUDGMENT 17th & 20th February 2025 CHUMA, J.: Troubled by the decision of the District Land and Housing Tribunal delivered on 30th July 2024, the appellant lodged this appeal containing four grounds claiming the following reliefs: a) That the proceedings and judgment of the District Land and Housing Tribunal be quashed and set aside. b) The appellant be declared the lawful owner of the suit land. 1 This appeal was disposed of by way of written submission dully filed by Mr. Nasimire and Deogratius both advocates for the appellant and respondents respectively. In the course of composing the judgment, I encountered one concern to the effect, on 19/4/2022 the DLHT ordered an amendment of the application following abandonment of claims against Ilemela Municipal Council and Mwanza City Council. However, the record is dead silent on whether the order was complied with instead the application proceeded to a hearing to its finality. On the 11th day of February 2025, parties were invited to address the court on the impact of failure to comply with the order in issue and had the following to respond; Arguing for the appellant Mr. Nasimire's advocate submitted failure to adhere to the referred order is fatal that renders the proceedings from 24/5/2022 nullity. Because the hearing seems to be based on the former pleadings which were ordered to be amended. 2 On his side, Benedicto John the

respondent unrepresented had a different stance. To him, non -noncompliance with the said order is not fatal because the parties agreed to withdraw the named two parties. Having heard the parties' submission, without spending much time discussing this concern, I subscribe to the submission of Mr. Nasimire's advocate that failure to comply with the order of the DLHT to amend the pleadings is fatal and vitiates the subsequent proceedings. This is because, in essence, once the order for amendment is issued the original pleadings ceases to exist. In that vein, the subsequent proceedings proceeded on the non-existence of pleadings following an order of amendment. Hence the trial Tribunal tried nullity. A similar stance was deliberated by the Court of Appeal in the case of Airtel Tanzania Limited vs Ose Power Solutions Limited, Civil Appeal 206 of 2017 (unreported) had the following to say on pages 13, 19, and 20; “…the settled position is that upon filing an amended plaint, the original plaint ceases to exist. The same when an amended WSD is filed inferring the end of the original WSD… upon amendment of a pleading the previous pleading ceases to have any legal effect. In Tanga Hardware and 3 Autoparts Ltd. and 6 Others vs CRDB Bank Ltd, Civil Application No. 144 of 2005 (unreported), the Court referred to the observations made in the case of Warner vs Sampson and Another [1959]1

Q.B. 297 that: “... once pleadings are amended, that which stood before the amendment is no longer material before the court." From the above position though the same indicates that upon filling amended pleadings the original one ceases to exist, in my view similar position applies even where the court or tribunal orders amendment of pleadings as herein explained. If I may go further parties are always reminded to respect the court’s order and the court itself has to ensure its order is complied with. Indeed, no court of law may overlook noncompliance with its order. This position has been held countless times that court orders must be respected. See the cases of Laemthong Rice Co. Ltd V Principal Secretary Ministry of Finance Zanzibar, Civil Appeal No. 259 of 2019; and Mary Joseph V Rachel Zephania, Misc. Land Application No. 37 of 2020; Micky Gilead Ndetura (a minor suing through Gilead Ndetura Lembai a next friend) V Exim Bank (T) Ltd, Commercial Case No. 4 of 2014; and Tanzania 4 Breweries Ltd V Edson Dhobe and 19 others, Misc. Civil Application No. 96 of 2000 (all unreported). In view of the foregoing, I quash the trial tribunals’ proceedings from 24/5/2022 and set aside the decision delivered on 30/7/2024. I remit back the record and order rehearing of the application from where the proceedings quashed subject to the law and procedures. Owing to the circumstance of this matter I desist from making an order for cost. It is so ordered. DATED at MWANZA this 20th day of February 2025. W.M. CHUMA

JUDGE 5 Judgment delivered in court virtually before Mr. Nasimire advocate for the appellant and Mr. Benedicto John the respondent unrepresented this 20th day of February 2025. W.M. CHUMA

JUDGE 6