JUDGMENT RIZIKI NYELELE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MWANZA SUB-REGISTRY AT MWANZA LAND APPEAL NO. 18583 OF 2024 (Arising from the Order dated 30th July, 2024 from the Misc. Land Appl. No. 214/2024 in the District Land and Housing Tribunal for Mwanza before Hon. Paulos L.S. Lekamoi Chairman Originating from the Land Appl. No. 319 of 2019) RIZIKI NYELELE………………………………………………………..…..1st APPELLANT TABU LUCAS……………………………………………………………..….2nd APPELLANT MATHIAS NYELELE MHYENI………………………………………..…..3rd APPELLANT VERSUS CELESTINA MAGUTA NDAKI (As Administrator of The Estate of the Late RHODA JOHN YATABU………………..……… RESPONDENT JUDGMENT 19th September & 1st November, 2024 ITEMBA, J. The appellants are aggrieved by the order of the District Land and Housing Tribunal for Mwanza (the tribunal) which dismissed Misc. Application No. 214 of 2024 for being an abuse of court process. The background of this matter is easy to narrate. The respondent filed application No. 319 of 2019 before the tribunal for vacant possession of Plot No. 35 ‘A’ located at Mhandu Nyakato, Mwanza (the suit property). It was alleged that the late Roda John Yatabu whose estates are administered by the respondent herein, bought the suit property from the 3rd appellant herein. That the 1st and 2nd appellants herein being the son and ex-wife of the 3rd respondent respectively, forcibly 1 entered into the suit property and refused to vacate. The matter before the tribunal was settled by the parties on 8/5/2024 after the 2nd respondent said; “kwa kuwa eneo hilo lilikuwa langu na mme wangu na kwa kuwa yeye mme wangu (mjibu maombi wa 3) ameliuza mimi staki ugomvi naomba mimi nirudishe Tsh. 20,000,000/= kwa mwombaji ili eneo hilo ambalo ninaishi liendelee kuwa langu na ninaomba nilipe ndani ya miezi miwili tu na endapo stalipa…eneo hilo likabidhiwe kwa mwombaji” Meaning that, in 2 months she will return to the applicant (respondent herein) TZS. 20,000,000 which is the purchase price and if she fails, the applicant should be given the suit property. The 3rd appellant recorded no objection and prayed for costs from the 2nd respondent. The respondent too registered no objection. After considering the parties’ concession, the tribunal recorded the terms of settlement and marked the matter settled. On the date of settlement, the 1st appellant was not present. After that settlement, the appellants filed an application for extension of time to file review (Misc. Application No. 214 of 2024on 11/7/2024) for reason that the 1st appellant was not a party to a deed of settlement. The tribunal dismissed the application for being an abuse of court process. The tribunal said; 2 “Baada ya kumsikiliza wakili tajwa hapo juu na baada ya kuzingatia kuwa mgogoro husika ulihitimishwa tarehe 08/05/2024 ni wazi kuwa maombi haya ni “abuse of court process” na hivyo natumia kifungu cha 95 cha sheria ya 33 R.E 2019 kwa kutupilia mbali Maombi haya kwa gharama” The appellants were not pleased by the order of the tribunal. They filed three grounds of appeal that; 1. the Trial Tribunal erred in law and fact for struck out the appellant’s application without availed the right to be heard to the parties. 2. the Trial tribunal erred in law and facts for struck out the Appellant’s application without proof of the allege abuse of court process. 3. the trial tribunal erred in law and facts for deciding the Application No 214/2024 without assigning the reasons for reaching that such decision. When the appeal was tabled for hearing Messrs. Marwa Samwel and Antony Nasimire appeared for the appellants and respondent respectively. Mr. Samwel submitted that, the appellants had applied for extension of time to file review against the decision of the tribunal in Misc. Land Application No. 319/2019. That, on the first day for mention, the chairman asked for the appellants’ counsel to address on competency of application, then the application was dismissed under section 95 of Civil Procedure Code (supra) 3 for being an abuse of court process. That, the respondents were absent therefore their right to be heard which is a constitutional right was violated. With regards to the second ground, he submitted that, the chairman misled himself for dismissing the application without proof of abuse of court process considering that, the application before the tribunal was for extension of time and it is a lawful application. That, the tribunal would have heard the application and satisfy itself based on the grounds of application. That the court needed to satisfy itself whether there is abuse of court process including whether the application is incompetent or aiming at wasting time and other reasons. I was referred to the case of Twalib Lubandamo vs. Machemba Tangimu Gamano Misc. Civil App. No. 23/2022; and JV Tanfrem Construction Co. Ltd and another v. TPA and Others Commercial Case No. 117/2015 (both unreported). That, the impugned decision of 8/5/2024 based on a consent judgement was delivered in absence of the 1st appellant. On the last ground he submitted that, the decision of tribunal was not supported with reasons for decisions. He prayed under section 43(1) of Land Dispute Courts Act, Cap 216 R.E 2019 for this court to use its 4 supervisory powers, set aside the decision and restore Misc. Land Application No. 214 of 2024. In reply, Mr. Nasimire submitted that, going by records of 8/5/2024 parties except for 1st appellant entered a consent agreement on how to dispose the suit property. That, pleadings filed before the tribunal show that 1st appellant is a child of 2nd and 3rd appellants and therefore his interest are basically not there. That under section 70 (3) of the CPC, there cannot be an appeal against consent decree. If there were probably errors in consent decree the proper move would have been making corrections in terms of section 96 of the CPC. That, applying for extension of time, appeal or any other remedy is an abuse of court’s process. That, on 10/7/2024 the appellants’ counsel before the tribunal was given an opportunity to address the tribunal therefore, the argument that the appellants were not given rights to be heard holds no water. That, the 3rd appellant did not bring any affidavit in support of that application before the tribunal therefore, he might have been joined in the appeal without his consent. He finalised his submission by stressing that, this appeal is a continuous process of abuse of courts’ process. He therefore prayed for the appeal to be dismissed. 5 In rejoinder it was submitted that, the 1st appellant was an important part in entering consent judgment since his rights were at stake. On the fact that consent decree is not appealable and it is challenged by way of review. I was referred to the case of Wasike v Wamboko (1976-1985) EA 625 and Arusha Planters and Traders Ltd & Others v. Euroafrican Bank (T) Ltd, Civil Appeal No 78 of 2001 Having considered the submissions of parties. I will consider the grounds of appeal. According to the first ground, the appellant challenges the order of the tribunal for the reason that the respondent was yet to reply and he was absent. That, only the appellants’ counsel was present therefore the respondents were deprived the right to be heard. I agree with the counsel for the appellants that, right to be heard is fundaments. Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977 provides that: "13(6) To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles, namely: (a) when the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair 6 hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned; " It is a cardinal principle of the law that, a decision reached without affording right to be heard is a nullity. See the case of Alisum Properties Limited v Salum Selenda Msangi (administrator of the estate of the late Selenda Ramadhani Msangi, Civil Appeal No. 39 of 2018 (unreported). However, without further ado, I agree with the respondent’s counsel that this argument is baseless. It is on record that; the appellants were ordered to serve the respondent on 10/07/2024. On the next date the advocate for the respondent said nothing about service to the respondent he only prayed for next date on the following words; “shauri linakuja kwaajili ya kutajwa tunaomba tarehe nyingine” Thereafter the trial chairman invited the appellants’ counsel to address on competence of the application based on settlement dated 8/5/2024. Hence, the appellants were heard before an adverse order was given against them. The argument that the respondent was absent is baseless and the appellants are not justified to lament on behalf of the respondent who was not affected by the order of the tribunal. 7 With regard to the second ground, it was the argument of the appellants that the tribunal erred to dismiss an application for extension of time to file review because the application was not an abuse of court process. That, the tribunal was enjoined to hear the application. That the 1st appellant was not part of the settlement before the tribunal and the remedy to challenge consent judgement is by way of review. I agree with the counsel for the appellant that the consent judgement may be challenged by way of review. In the case of Arusha Planters and Traders Ltd & Others v. Euroafrican Bank (T) Ltd (supra) “In other words, there is no doubt that a consent judgment was entered into between the appellants and the respondent. There is also no doubt that no appeal shall lie to this court from a decree passed by the High Court with the consent of the parties without leave of the High Court in terms of section 5 (2)(a)(i) of the Appellate Jurisdiction Act, 1979. Equally there is no doubt that a consent judgment may be challenged by way of a review.” The court further referred to Mulla Code of Civil Procedure 14th Edition Vol.1 page 581 where it is stated that; “A consent decree can be set aside on any ground which would invalidate an agreement such as misrepresentation, fraud or mistake. This can only be done by a suit” 8 In this matter at hand, there is no dispute that the 1st and 2nd appellants before the tribunal claimed the suit property to belong to the 2nd appellant and the 3rd appellants as spouses. The 2nd appellant unequivocally promised to pay Tshs. 20,000,000/= to the respondent. The 3rd appellant and the respondent had no objection. In my view, from the circumstances of this case, parties cannot claim misrepresentation, fraud or mistake. The argument that the 1st appellant was not part of settlement is baseless because he had no any interest over the suit property. Absence of the 1st appellant therefore cannot affect the proceedings of the tribunal since no injustice on his part was caused. Section 45 of Cap 216 Provides; " No decision or order of a Ward Tribunal or District Land and Housing Tribunal shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings before or during the hearing or in such decision or order or on account of the improper admission or rejection of any evidence unless such error, omission or irregularity or improper admission or rejection of evidence has in fact occasioned a failure of justice." Likewise, in this matter at hand neither the decision of the tribunal dated 8/5/2024 nor that of 10/7/2024 prejudiced the 1st appellant. The 9 appellants only intended to waste time and delay justice. Therefore, I agree that their application before the tribunal was an abuse of court process. The last ground of appeal will not detain me for long, as hinted above, the chairman dismissed the application because of the settlement dated 8/5/2024. Therefore, he assigned the reason for his decision. That being said and done, all grounds of appeal lack merit. I proceed to dismiss the entire appeal with costs. It is so ordered. Right of Appeal fully explained to the parties. Dated at Mwanza this 1st day of November, 2024. L.K.J. ITEMBA JUDGE 1/11/2024 10