Land appeal 26058 of 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 26058 OF 2023 (Originating from Application No. 119 of 2020, Temeke District Land and Housing Tribunal) REHEMA HEMED KI LIN DO.............................................................. 1st APPELLANT PILI SHIJA SOMBI......................................................................... 2nd APPELLANT VERSUS ABEL AISON MWAKABENGA................................................................................ 1stRESPO KAUTILA ALI KAUTILA........................................................................................ 2ndRESPO HEMEDY ALLY KAUTILA...................................................................................... 3rdRESPO ABDALLAH OMARY NGINGITE (Administrator of the Estate of the Late Kautila Ali Kautila @ Ally Kautira Ally)............ ................ ....4th RESPONDENT JUDGMENT 24th to 30th April, 2024 E.B. LU VAN DA, J The Appellant named above is challenging the decision of the Tribunal which decreed in favour of the First Respondent as the lawful owner of a land measuring one hundred acres located at Lingato Street, Kisarawe II in Kigamboni District, and conferred the Appellants along the Third Respondent a status of trespassers and prohibited them access to the suit land. In the amended petition of appeal, the Appellants raised eleven, grounds of appeal: One, the trial Chairman erred in law and fact by holding that the Appellants were not wives of the Second Respondent, Kautila Ali Kautila, for i want of documentary evidence; Two, the trial Chairperson erred in law and fact by usurping and exercising powers of matrimonial court by invalidating the marriage between the Appellants and Second Respondent; Three, the trial Chairman wrongly and without justification concluded that the Second Appellant was a mere concubine to the Second Respondent despite unchallenged evidence from all the witnesses including the testimony of the Second Respondent; Four, the trial Chairman misconceived the status of exhibit DI (the sale agreement) by wrongly concluding that the same was not challenged as to its admissibility; Five, the trial Chairman erred in law by acting on exhibit DI despite the questioned anomalies on witnessing clause; Six, the trial Chairman wrongly erred and concluded that all the exhibits by the Respondents, namely exhibit DI, D2 and D3 were unchallenged contrary to the proceedings; Seven, the trial Chairman wrongly construed and disregarded the testimony of the Second Respondent regarding the marital status of the Appellants; Eight, the trial Chairman wrongly held that the Appellants were not required to consent to the challenged disposition of the land between the First and Second Respondents; Nine, the trial Chairman erred in law and fact for binding the Second Respondent to his written statement of defence which was prepared and filed in court by Baraka Mkama who subsequently was found to have acted so without being an advocate at all; Ten, the judgment is tainted with defects for not stating the reasons for change of trial chairpersons from when the 2 proceedings started and proceeded to the end; Eleven, the trial Chairperson wrongly evaluated the evidence of all the witnesses resulting to the granting all the reliefs to the First Respondent. Mr. Benitho L. Mandele learned Counsel for Appellants in his submission proposed to combine grounds number one, two, three, seven and eight; combined grounds number five and six; the rest grounds were argued separately. The learned Counsel submitted that by invalidating the marriage between the Appellants and the Second Respondent by declaring the Second Appellant concubine and by insisting that the Appellants were to produce marriage certificates, the Tribunal wrongly constituted itself as matrimonial court and wrongly made such declaration without prerequisite matrimonial jurisdiction. He submitted that the Tribunal had no such power which are exclusive of matrimonial court which at the time of pronouncing the judgment such powers are in exclusive domain of the Judicial One Stop Centre Temeke. He submitted that the issue of marriage was not questioned nor contradicted by any evidence. He submitted that the fact that the Appellants were married to the Second Respondent, that the Appellants have had over twelve children with the Second Respondent including Hemedy Ally Kautila (Third Respondent) and that all these people jointly acquired the land in issue and lived on that land were not consovated (sic) at all. 3 On ground number ten, the learned Counsel submitted that the trial of the case started with a different trial Chairperson and it was finalized by a different Chairperson, arguing there had been change of trial Chairperson. He submitted that the proceedings and judgment must reflect such change and the reason for change. He submitted that there is no such record in the judgment, citing National Insurance Corporation (T) Limited vs Jackson Mahali, Civil Appeal No. 94 of 211 (sic), at page 3, 4 and 5. On ground number nine, the learned Counsel submitted that it is in record that exhibit DI prepared by Baraka Mkama who was subsequently found to be a fake advocate, arguing exhibit DI was not a competent document and faulted the Tribunal for relying on it. He submitted that exhibit DI, D2 and D3 were highly challenged at admission. Mr. Gabriel Maros learned Counsel for the First Respondent, submitted that on 13/03/2024 this Court ordered the Appellants to file amended petition of appeal within seven days on 20/03/2024, but the Appellants served them with amended petition of appeal showing it was filed on 25/03/2024, arguing it was filed beyond seven days and without leave. He submitted that the learned Counsel for Appellants proceeded with the hearing of the amended petition of appeal. He submitted that since he failed to abide with court order, then there is no appeal in the eyes of law, arguing failure to obey tantamount to failure to prosecute his appeal. He submitted that the submission in chief was supposed 4 to be filed on 03/04/2024, but was filed on 4/04/2024 without leave, arguing the document is said to have been filed in court when the fees is paid and endorsed showing the date and time when it is lodged, citing John Chuwa vs Antony Ciza [1992] TLR 233. The Second, Third and Fourth Respondent supported the appeal as well as the reasons contained in the Appellants' submission in chief. The learned Counsel for Appellants did not file a reply to clarify the concern raised by the learned Counsel for First Respondent that the amended petition of appeal was filed beyond the time scheduled by the Court. To my view this imply concession on his part. According to the records, on 13/03/2024 this Court allowed the Appellants to amend their petition of appeal in view of impleading the administrator of the Fourth Respondent. The said amended petition of appeal was supposed to be filed on 20/03/2024. However, the document in the hard file as well as in the electronic file suggest it was filed on 25/03/2024 which was outside the time prescribed by the Court. In his submission in chief, the learned Counsel for Appellant said nothing to this anomaly, instead proceeded to argue his appeal as if all things were equal and in order. The general rule is that where any period is fixed or granted by the court for the doing of any act, parties are under obligation to comply or else in case of any fault or technical glitch are expected either to liaise with the Court for 5 variation, deviation or departure to its order and possible extension or leave to do it outside the given or scheduled time. But any attempt to do it outside a schedule and without prior leave of the Court, is as go one as having not done at all. In other words, the amended petition of appeal which was filed on 25/03/2024 is akin as not having been filed at all. This is for reason that there is no court order which allowed it be filed on that particular date of their Appellant choices and convenient. Equally the submission in chief filed in support of those grounds are taken not to have been prosecuted at all. Because they are pegged on a nullity. In reflection to the above, the appeal stands to be dismissed for want of prosecution. The appeal is dismissed with costs. 6