robert francis kawishe vs workers development corporation t limited 2017 tzhc 2205 15 may 2017

IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA LAND APPEALNO. 49 OF 2014 (Appeal from the DistrictLand and Housing Tribunal o f Dodoma Land REVIEW No. 1 o f 2014 Original Land Application No. 3 o f 2015) ROBERT FRANCIS KAWISHE.................. APPELLANT VERSUS WORKERS DVELOPMENT CORPORATION (T) LIMITED..................... RESPONDENT JUD GEM ENT Mansoor, J: Date of FINAL SUBMISSIONS -28/04/2017 Date of Ruling- 15/05/2017 The Appellant was the Tenant in the suit premises owned by the Respondent. The Respondent filed Land Application no. 3 of 2005 for rent arrears and for vacant possession. On 15th March 2014 the respondent won the case, and the Appellant was ordered to pay THz 7,886,875/80 as rent arrears and VAT, and interests. He was also ordered to pay THz 250,000 plus 20% VAT and interest at 7% from September 2004 to the date he yield vacant possession of the suit premises, he was also ordered to yield vacant possession of the premises, and to pay costs of the suit.The Appellant herein opted to file a Review of the decision of the DistrictTribunal. The Counsel for Respondent, Mr Nyangarika raised an objection against the Review, that the remedy of Review is not available in law as the Judgement of the District Tribunal was appealable. Iam reading the Ruling dated 28/08/2014, by Honourable Mwihava in Memorandum of Review N ol of 2014, and I cannot grasp as to why he decided to nullify and quash the decision of the District Land and Housing Tribunal of Dodoma in Application No. 3 of 2005 while upholding the preliminary objection raised by the Counsel for the Respondent. I agree fully with the submissions of the Appellant that the Ruling of Hon. Mwihava did not state as to what proceedings and decisions he/she is quashing, and he did not give any reasons as to why he is quashing the decisions and why he/she is nullifying the proceedings. She/he simply said, and I quote: “I therefore take it that the applicant counsel has conceded to the preliminary objection raised by the respondent's counsel. I strike out the application with costs.” This is the decision made on 18/09/2014, in Review NO. 1 OF 2014, however , attached to the Memorandum of Appeal, I see another ruling dated 28/08/2014, which has pages 1,2,and 3 similar to the Ruling of 18/09/2014 but the last page reads differently, it reads as follows: “Wholeproceedings as I hereby nullify. The decision is too quashed. Parties at their liberty file a fresh suit before competent tribunal. No order as to the costs.” I really do not know what proceedings were quashed and which decision was nullified. On record, I do not have the proceedings for Review N o.l of 2014.1 have read Mr Nyangarika's submissions on this point, and I see that he is trying to shift the blame to the Appellant’s Counsel, that he might have cooked (forged) the ruling of 28/08/2014 since the page numbers are confusing, and the flow of the arguments does not tally. I agree, however, since I don’t have the records of Review No. 1 of 2014, I cannot say now as to who created the said confusions, it could be the Tribunal itself. Since these are serious allegations towards the appellant’scounsel, I advise Mr Nyangarika to take proper legal cause for establishing the allegation before the proper body. For now, as I have said hereinabove, the records and the proceedings availed before me are confusing. It is my considered view that the courts and tribunals must adhere to the well settled maxim that justice should not only be done but manifestly and undoubtedly seem to be done. The Advocate acts as an officer of the Court and he is duty bound to help the administration of justice. He is duty bound to answer all questions to the Court and to make statement of facts on which the Court must implicitly rely. These duties which are inherent in this noble profession both towards the Court and towards his client can be performed independently and fearlessly with a dispassionate; approach only if the lawyer plays an independent role as the officer of Court helping the administration of justice. When an Advocate explains to the Court his/her un-readiness to continue with the hearing of the matter fixed for hearing, and if the court is satisfied, it is prudent that the matter be adjourned to a next session. In the ruling, I did not see anywhere written as to why the Counsel for the Appellant refused to reply the submissions of Counsel Nyangarika. The Tribunal could at least give him/her a short adjournment for making Reply submissions. It is against natural justice to deny any party in the proceedings a fair trial. For this reasons, and for the reasons that the Counsel for the Appellant was denied a chance to argue the preliminary objection raised by Mr.Nyangarika, the learned Counsel for the Respondent, and since this is against natural justice, I allow the appeal, and order that the preliminary objection raised by Mr Nyangarika for the Respondent in Land Review No. 1 of 2014 before the District Land and Housing Tribunal of Dodoma, be heard on merits by a different Chairperson. Appeal allowed, costs to be in the Application for Review before the District Land and Housing Tribunal. DATED at DODOMA this 15Tflday of MAY,2017 !N //■■■/ - ,,fc SOOR ;■ 'if, ’ '\l?v £ j)-jl JUDGE C , . ‘C J>!k \\ <- ;■ 15th MAY 2017 ''i X I T ^