Land Appeal No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 6544 OF 2024 (Originating from Misc. Civil Application No. 275 of2023, District Land and Housing Tribunal of Kinondoni at Mwananyamala) SERVY GOTFRED MBOYA....................................................... APPELLANT

VERSUS JANET DAVIS MASHINGIA.................................................... RESPONDENT

JUDGMENT Date of last Order: 21/5/2024 Date ofJudgment: 31/5/2024 A, MSAFIRI, J, The appellant herein above being dissatisfied with the decision of the District Land and Housing Tribunal for Kinondoni at Mwananyamala (the trial Tribunal) in Application No. 275 of 2023, has lodged this appeal advancing four (4) grounds of appeal as follows; 1. That, the learned trial Chairman erred in law and in fact by ruling that the trial Tribunal had jurisdiction to hear and determine the matter, while the dispute before the Tribunal purely arise from the breach of contract and not dispute over land, of which the trial Tribunal had no jurisdiction over it.

2. That, the learned trial Chairman erred in law and in fact by ruling that the Appellant was duly served with the summons to appear for assessors opinion andjudgment via affixation to the disputed house which the Appellant's family 1 resides white the Appellant and his family was in Kahama and the house is not in dispute at all.

3. That, the learned trial Chairman erred in law and in facts by ruling that the Appellant was duly served with summons to appear and defend the case and summons to appear for assessors' opinion andjudgment white the services did not follow proper procedure.

4. That, the learned trial Chairman erred in law and in facts for not considering the illegality in services of summonses to appellant, hence deprived him of his right to be heard and challenge the exparte judgment on time, hence reached to erroneous decision. The appeal was heard by written submissions and the appellant's submission in chief was drawn and filed by Mr. Ibrahim Obadia Malekela and Mr. Ambrose Nkwera, learned advocates while the respondent's reply submissions was drawn and filed by Mr. August Mramba, learned advocate. I have considered their worthy submissions and I will analyse them as I determine the grounds of appeal. Before determining the grounds of appeal, the brief background of the dispute is apposite. Initially it was the respondent Janet David Mashingia who instituted an Application No. 218 of 2021 against the appellant Servy Gotfred Mboya. She was claiming that the has entered a sale agreement with the appellant whereby she sold the house located at Mbezi beach, Kinondoni, Dar es Salaam to the appellant. That the agreed purchase price was TZS 170,000,000/= but the appellant paid TZS 95,200,000/= only. That the 2 appellant have failed to pay the remaining TZS 74,800,000/= within the agreed time and the respondent's efforts to demand the appellant to pay the remaining sum have proved futile hence she filed the said application. She prayed for the orders

that the appellant pay the remaining sum with interest and damages. The hearing of the application was exparte and it was claimed that the appellant was served to appear before the Tribunal but refused. After hearing the Tribunal entered an exparte judgment in favour of the respondent. The appellant then filed Misc. Application No. 275 of 2023 seeking for an extension of time within which he can file an application to set aside the exparte judgment. The Application was dismissed hence the appellant have lodged this appeal. Submitting on the first ground, the counsels for the plaintiff stated that looking at the record of the trial Tribunal particularly pleadings, it indicates that the respondent's cause of action was for breach of contract and not for recovery of possession of landed property or related dispute. That the appellant bought a residential house located at Mbezi Beach which was previously owned by the respondent for a consideration of TZS 170,000,000/= and paid TZS 95,000,000/= and remaining unpaid amount is TZS 74,000,000/=. bf I L 3 They submitted further that the issue therefore between the parties is the remaining unpaid balance hence there is no dispute in respect of ownership of the said property because the land property has already been sold to the appellant. They argued that the respondent could have opted to seek for remedies in normal civil courts as the

issue is on the breach of contract which falls under the Law of Contract Act, Cap 345 R.E 2019. The counsels pointed that it is a well-known principle of the law that for the purpose of ascertaining whether the court has jurisdiction to entertain a certain dispute, it has to assess the facts on whether they constitute cause of action and the reliefs claimed. To cement this, they cited the case of Rombo Green View Investment Ltd vs. CADSP Tanzania Ltd, Land Case No. 268 of 2008, HC Land Division (Tanzlii). They averred that the Chairperson erred for not granting the sought extension of time to challenge the exparte judgment and decree which had illegality. In response to the first ground, Mr Mramba submitted that the Tribunal had jurisdiction to entertain and determine the matter because the claim emanated from a contract which was binding between the parties which stipulated terms and rights existing for both parties with respect to a landed property. That the cited case of Rombo Green View (supra) is distinguishable from the matter at hand. LzI I 4 The jurisdiction of the District Land and housing Tribunals is derived under Section 33 of the Land Courts Disputes Act, Cap 216, R.E 2019. Section 33(1) (b) of the Act provides that; (1) The District Land and Housing Tribunal shall have and exercise originaljurisdiction- (b) in all such other proceedings relating to land under

any written law in respect of which jurisdiction is conferred on a District Land and Housing Tribunal by any such law. (Emphasis added). The counsels for the appellant have claimed that the matter at hand falls purely under contractual obligations. However, having read the pleadings from the main application, it is my view that the dispute is not on purely contractual obligations because it involve landed property which is the subject of the sale agreement between the parties. From the facts of the dispute and the pleadings thereof, this matter falls under "such other proceedings relating to land". For that reason, I find that the trial Tribunal had jurisdiction to entertain the matter before it as it is related to land. I therefore dismiss the first ground as it lacks merit. On the second ground, the counsels for the appellant submitted that it is a well-known principle of law that before the court has to announce exparte judgment, first it has to summon the defendant/respondent to 5 appear on the date of the delivery of exparte judgment otherwise the defendant will be deprived his right to be heard. To support this point, they cited the case of Shabani Khalfani Kondo vs. Tajiri Abdi Barua, Civil Appeal No. 232 of 2021, CAT at DSM (Tanzlii). They submitted further that looking in the records of proceedings of Land Application No.218 of 2021 there is no any proof which shows

that the respondent served the appellant with the summons to attend on the date the court delivered exparte judgment. That the respondent alleged that she had affixed the summons on the disputed house while actually the appellant was not residing in the said house but lives with his family in Kahama. The counsel for the respondent contended that the appellant was duly served and the appellant was notified on the delivery of the exparte judgment. That at page 7 of the judgment, it shows clearly that the appellant was served through court process server and that at some time, the Tribunal took initiatives to call the appellant personally but did not heed the call as per page 8 of the judgment. He argued that the cited case of Shabani Khalfani Kondo vs Tajiri Abdi Barua (supra) is distinguishable from the instant matter. Going through the proceedings and the judgment, it is clear that the appellant was aware of the Application which was filed against him, he 6 was aware that the matter was set for hearing and was informed on the date set for assessors opinion and judgment. This is shown at from page 7 of the impugned judgment where it is stated that the appellant was served through a court process server, he was not found at his home. He was then called through a phone by number 0666106320 which was registered by the appellant's name Servy Gotfred Mboya. That the appellant replied

through phone call that he is in Geita on official duty. That he was informed about the case filed against him and the date but on that date he did not enter appearance in court nor did him sent a representative or gave a notice of absence. On 14/01/2022, the Chairperson Hon. Rugarabamu called the appellant by his number, the appellant received and he was informed about the case and told to appear in court but he replied that he was in Geita and has no fair to come to the court. It is also on record that the appellant was served by affixation and the summons was affixed to his house. In addition the appellant was called by his phone and informed that the summons was affixed to his house and that it shows the date of judgment, but the appellant did not appear in court. Pages 7,8, and 9 of the impugned judgment all shows how the appellant was served on diverse dates, he was called by his phone but did not show up before the Tribunal. All these shows that the appellant at all the time 7 was aware of the proceedings before the trial Tribunal and was aware of the judgment date but for the reasons known to himself, he chose not to enter appearance and defend his matter. The appellant has a right to be heard but this right goes with a responsibility to enter appearance before the court to be heard as the records shows that he was aware of the matter. I find this ground also not to

have merit and I dismiss it. The counsels for the appellant consolidated the third and fourth grounds of appeal and submitted that the law has set a very clear principle that before issuing an order of exparte hearing which leads to exparte judgment, the person seeking for that order has to prove/justify that all necessary means of serving the defendant/respondent with the summonses has not succeeded. That the applicant was supposed to bring the affidavit of service which has been duly served by the court process server and after that she was required to pray for substituted service either by affixation or publication. The counsels argued that there is no any affidavit of court process server in the records but the applicant brought the pictures of summons fixed on the wall before the Tribunal on which their authenticity is questionable. That the said pictures does not show the whole house which raise a doubt on whether the summons was truly affixed on the house the subject matter. They added that the 8 appellant and his family are now living in Kahama and not in Dar es Salaam. They prayed that the appeal be allowed and the appellant be granted extension of time to file application to set aside exparte judgment. In response, Mr Mramba for the respondent argued that it is trite law that illegality should be apparent on the face of record. That nothing hindered the appellant of

his right to be heard as he was aware of the case as he admitted himself. He prays that the appeal be dismissed with costs. In these consolidated grounds, the appellant shows that he was well aware of the pending matter before the Tribunal. As said earlier, the judgment shows the efforts which were done to summon the appellant to appear in court. I am satisfied that the proper procedure were followed as shown in the records. The records shows that the appellant was even served by affixation when all other methods have proved futile. The appellant acknowledge the service by affixation but raise a doubt whether the affixation was done on the house of the subject matter. This clearly shows that the procedure for service was duly done. Therefore there is no error apparent on the face of record. By doubting the authenticity of affixation, the appellant raise issues which leads to long arguments between the parties to prove that issue. It was observed in 9 the case of Ngao Godwin Losero vs. Julius Mwarabu Civil Application No. 10 of 2015 CAT Arusha (unreported), that the illegality of the impugned decision has to be clearly visible on the face of the record. In the present appeal what is seen is the accusations which attracts long drawn argument or process. In the upshot, I find that records of the trial Tribunal with the judgment shows clearly that the appellant was duly served and

was made aware of the Application which was instituted against him but he chose to ignore the matter. The appellant has not responded nor denied on the fact that he was even called by the trial Tribunal through phone call and was informed about the case but replied that he was in Geita. For those reasons I find the appeal to have no merit and it is dismissed in entirety, with costs. Right of further appeal explained. 10