20110923 TZHC Mwanza

IN THE HIGH COURT OFiUNITED . . REPUBLIC . . TAN.ZANIA . , . ':- -.- IN THE DISTRICT REGISTRY A"J'.,MWANZA . . --:: . LANO APPEAL NO 1.7 OF 2011 · (Frorrj District Land andflousing Tribun;I of Mw~nza Land Case N[!/131 and 132_;f 2008) . . . . .. } · 1. REV CHARLES ISEKE . . . '. . • 2. REVSAMWfL l<AHENE ...........,........ APPELLA~TS . VERSUS . . . THE REGISTERE~TRUSTE~S OF} . ANGLICAN CHURCH . . ..........•.... RESPONDENT JUDGEMENT •25/8 & 23u/9/2011 Sumari, J. This appeal emanates from the decision ofthe Chairn1an of Mwanza District Land. and 'Housing Tribunal, whereby Jhe ~ppellants having lost their case before the said Tribunal appeale~ ... before this Honourable Court. Just to say in nutshell, the appe_)l~nts are erstwhile V • employees of the respondent. Sometimes in 2008, the respondent terminated the Contract of service of the _appellants. Thus this is where the dispute between the two parties to this appeal embarked, as the respondent interalia fruitfully lodged her application before the said Tribunal, Jor- vacant possession of the respondent's house which is still possessed by the appellants. ~ 1 " ,7 -~ ... / -- / . : ·._,•.· · / · sei ng aggrie~ed by the decision of the Chairman. of the Land . ,,/. Tribunal, .the appellants filed their memorandum of appeal; before ,A. this Honourable Court,<. SlJbmitting 10. grounds of appeal· to that •. effect. In 'the .due courie --of entertaining this appeal, the question as to· whether this appe~I was filed within the time as. required by th·e law arose. The 1st and 2nd appellant's respectively were duly represented ) .. by Mr. Nkanda learhed Counsel whereasJor ttle respondent one Rev. Luhui appeared and argqed the appeal. ·As for the issue in question whether the appeal was filed wit~in time Mr. Nkanda,. Learned advocate submitted that, this appeal is not time barred as . it was filed within . the required time. That the judgment before the District Land Tribunal was delivered on 30th July, 2010 and on 2nd August 2010, the respondent applied for copies of Decree and Judgement which were lately- supplied to them on 11 th February, 2011 vide ERV No. 41786318. Thus, amonth later meaning· on 11 th March, 2011 the appellant filed their appeal in this Court. Responding to. this Rev. Lahui, for the respondent submitted that the case . before the . . . :",.. District, Land Tribunal was adjudge.ct a~d . . . ,.. ' . ,., ,. ,'. th delivered on 30 July, 2010 and the appellants were given time to appeal. After the time for appeal elapsed the Tesporident sought for execution of decree Olil 2nd Dec, 2010. He argued further· that on 15th January, 2011 they were called by the Tribunal and all parties were present, including the appefra~ts' advocate and the tribunal .()rde'r~cf. the appellants to vacate the respondent's premises within 14 days. ~- - - .. -- ~ 2 lk- ' . . -:·.: .• ...... -- ....:. . ... ---------- ~..:___:..::..::..~- ___ _, ___ - - - - · • ·.- ... - ____ · • ·--'-:--~~ ~ _._ • --~-·-· -----:-•'·-_- ---.___-4.'-'." ..--:- - ,_·---=- =---:::::-·~----_:_:~;_ - - __ ti ~ // . ,·.·· ·:·· ... . ~ ·. . . .. .· . ' . . . / When the s~id 14 days had elapsed it is when the ~espondeni __ / went back to the· Tribunal where they were told the. file has b~en .., •moved to High Court· as the appellants wishes: to appeal out of time. •' )~ - ·-• •· He finally requested this court to. dismiss the appeal as it is time barred. It is undisputed that on ·30th July, 2010 the judgment was delivered by the District Land and Housing TribunaL The -tdbunal's record also shows that on 2nd August, 2010 appellants wrote to tribunal indicating their intention to. appeal, and finally the exchequer receipt no. 41786318 shows that on 11 th February, 2011 the appellant obtained a copy of judgment and decree and exchequer receipt no. 41786319 shows that the copy of proceedings were obtained on 17th February, 2011. ·,with· the above explanation I'm satisfied that this appeal is within the prescribed time, so it is not time_ barred as thought. Now as earlier statep, in their memorandum of appeal the appellants filed ten (10) grounds of appeal as follows: 1. The trial . chairp~rson erred in_ law and fact in entertering Judgment in favourof the respondents. 2 .. The trial·iChairperson erred in law and in fact in dismissing the· ,"- preliminarily objection with Cost without giving reasons. ~ 3 II ._, . 3. The trial Chairperson ·erred in. law ·and in ,.fact in holding that ·. -~ . ', . . the applications number 131 and 132 both of 2008 were not religious dispute. 4. The trial Chairperson erred in· 1a·w and in fact in proceeding with consideration· on a matter which was subjudice. . ._.. 5. The trial Ch~irperson erred in law and in fact in proceeding of· the matter ·pending determination of . the·,_- disciplinarily. .' · "· -r:>rocedures ·which·were pending within the respondents di9cese , · . and Anglican· Church in general. . . . .. 6. That the trial chairperson erred in law and in fact in taking into.· ·. · · account the matters that were never pleaded by the parties. 17; .. The <Chairperson erred in law and in fact in entering the judgment bas_ing on hearsay evidence.; · 8: The trial Chairperson erred in law and in fact in holding that , the appellants were service tenants. SL The trial Chairperson erred in law and in fact in not holding that the religious titles of the appellant were life time ,·, designation .. . ') ·...10. That the decisi.on of the trial -Chairperson is otherwise at ' default and bad in law .. ' Before canvassing the submissions of both th~ appellants and the respondent, I find it imperative to give a concise account of JBlr- 4 ............. _. background of the cause of action· gathered from the: record of the. tribunal. .·.•·· The appellants were pastors.· working with. the respondent in Mwanza City and_ by:\~irtue of their positrons they were servic:e tenants in the respondents' houses. , It is alleged that on 19/4/2008 the appellants' services as pastors were terminated by .the . respondent and notice to vacate the ~ respondenfs houses,wasissued to ·appellants the same day;···Hespite···· -;:. ·· - ' . . th~ · said notice appeflants unlawfully : refused to give vacant possession of the said houses. The appellants, refusal to vacate forced the respondent to seek -legal redress before the District Land . . ' - .. st and Housing Tribunal on 31 October, 2008. The relief sought were·• .· inter alia:- . ' ' . -- ~ · L Declaration that th·e appellants are not ent'itled ·to remain in the disput<=d hous1=s . . :. . . •~r,_,.. . . '.', 2. Evictiqn order for\t~~antpossession. . :_ It should be borne in mind that at the trial only two issues werj· . ' ' . ~ ... . framed :to be determined, namely, whether or· not the respondents . . (appellants):_;ere and or are service tenants and the relief~~: To prove .its case the applicant/respondent gave evidence ,.,-. '. .through · Pwl,. one Rev. Nesta Mheta who in his evidence he specifically told the trial court that and I quote ''I instituted the case . . against the respondents that they can vacate the suit premises one of house is in the church s area/ the other one is on the headquarters of the Diocese. All of the 5~ ;,-rwil'-•;;;;:.::;.;"!..;;::;::·====---==x~=--=c ----- .. /:/ • 1-' // . ·.·.·.: -.i~/' ·:. ' '' ' :, ' ' ' ' ' '·.' . _: ··., ' if/ ,, :· ·. ,· ' ' *. , ~/ 1:7houses are the prop~riy of the church. There are other employees of the churchl , ~:f/ who are in need of the houses./✓ ... ~;(' ~ Now let me canvas the submissions of both the appellants and· respondent. On their 1st and 2nd ground of appeal the counsel for the appellants Mr., Nkanda~ ·submitted that the triai Chairperson er.red in ' . law and ·in fact in dismissing the preliminary objection With cost· without giving reasons; He assigned no further explanation on that· ground. The ground is ·obvious meritless~ no wonder Mr. Nkanda, 0 failed to sub~cribe or fortify_his,ground. - .,,,,.,,-,, ,,.,.,,, . :. . As for ground 3, 4 and 5 appellants complained that by the time applicant filed the application . for eviction there was· a disciplinary dispute -between the applicant/respondent and · · respondents/appellants which the Chairman of Tribunal ought. not to.. ' . ' ignore that fact, instead ought to stay the proceedings. : He · further submitted that and I. quote~ hi.m · "in the XXD of -i Boniface Kwangu at pg. l4 line 13 of typed proceeqif)gs he said ''the - ,. Registered Trustees only deals with the property' of the Diocese when is been sold//this means a question of eviction is out of question. He Went further "the}udginent council is the one dealing .with behaviour of · pastors -and other.persons. However, the diocese coun~il . ' /$ .·_,... .tbe ·' .. highest . ' ' ·, . ._ ~ .. '.... organ compared to the Judgment council"~ .. · With due respect to the learned counsel,_ ~he only witness - adduced evidence in respect of the applicant/respondent's claim is as '' I earlier statec( one Rev. Nesta Mheta and the record is silenton the above referred evidence of Boniface Kwangu. ,JJ. _ 6 ~ :·. ,, ·. ·Again, along the same line· of argument, it is compiained and·. suggested that the trial tribunal ought to had :stayed proceedings. He.. actually argued "It is our submission therefore that the dispute bern;een the applicant and respondent was in existence but for no reason failed to· stay the proceedings'~ Why stay of proceedings, is not .clearly explairie_d. r However, assuming that this is argued ln connection of the above· quoted ·evidence of the so called Boniface K_wangu(whom does not exist) which in respect of the "the Registered. Trustees on!f ·deals with. 0 · · the property of the -Diocese whettis been sold" and "the Judgment council· is the one dealing with behaviour of pastors and other persons. However, the diocese council is the highest organ compared to the. judgment council'~ This was not an issue to be determined. The issues .frarned for determination are clearly stated and they are, I reiterate,· :whether •Or not the respondents '(appellants) were and. or are,service. tenants.and the -· . ' . ,. , reliefs. I'm therefore asking myself whict, · proceedings were to be stayed and for wh~t reasons. Mr. Nkanda's arguments suggests that the issues to be determined by the trial tribunal relates the termination of the appellants the then respondents, which suggestion is quite wrong ... · · I again ffrid the th'ree grounds meritless. I '. I Grounds 6 and 7 were abandoned. As for £frounds '8 and 9, it is submitted that the title of the ;: . appellants is- life. time so the eviction was wrong because they were I not service tenants. ~ 7 .'/. /.1/ · . While I appreciate that question of the title being of life tim~ or ./ not to be is a question of belief, that is not an issue to be determined . :-~:) either. ·so as It was not entertained as an issued to be deterrnJned at ./ the trial this court too cannot entertain it. The same also is· unfounded. In conclusion Mr. Nkanda, prayed the appeal to be allowed. In reply to the grounds of appeal Rev. tuhui for the respondent 0 briefly submitted that the ~ppeal is devoid of merits because:~ . First of all .this -. is not an employment suit. That the issue . . . . before the Tribunal. was eviction of the appellants from the houses of the applicant/respondent :· That they were issued a noticet t6 vacate .;': .. ,.. :, .... and. upon the expiry of the said notice applicant, now the respondent . •. went to the District Land Tribunal which is a legal organ to .. issue . eviction order. So in the trial Tribunal it is not true that the issue was that of employment. He howeve·r, conceded that as stated it is true I the appellants' title is life time title. But that was not an issue before l. ! the trial Tribunal. .He v.eh,emently submitted and insisted that the application was · :. ·. obvious because the appeJlants.were service.tenants and their s~rvice• · . ended on 19/4/2008, and that is when their right to stay· in the . applicant's houses seized. - Indeed. the.appeUar1ts .service tenancy seized after their .service. .. i ' ended on 19/04/2008. ~ 8 .' further to that he prayed the appeal to be dismissed for ·it i~ devoid of merit I join hands with the respondents' submission · that the ,appellants' appeal is devoid of merit for the reasons stated above; · Co~·~equently, the appeal is dismissed with costs. ' :' . ~ ' XN.:M.. Sumari .TV.V§'E .: . . -.· Delivered.in presence of Rev. Luhui for respondent arid in absence of the appellants. AtMwanza 23/9/2011 9