sophia fredrick mgongo vs amiry shaban kupaza 2020 tzhclandd 137 13 may 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 67 OF 2019 (Arising from the decision o f the District Land and Housing Tribunal for Kibaha (Hon. Njiwa) in LandApplication No. 90 o f 2015) SOPHIA FREDRICK MGONGO ...................APPELLANT VERSUS AMIRY SHABANI KUPAZA (ADMINISTRATOR OF THE DECEASED ESTATE OF HASHIM SHABANI KUPAZA .......... ........ ...... RESPONDENT JUDGMENT MAIGE, J This is an appeal against the decision of the District Land and Housing Tribunal for Kibaha in Land Application No. 90 of 2015 as per Hon. Njiwa, learned chairman. The respondent herein was sued as the administrator of the deceased estate of the late Hashim Shaban Kupaza. He was being accused of trespassing unto the appellant's landed property at plot number GT/CR/35B, within Kibaha ("the suit property") by creating a new plot and constructing another house thereon. The appellant claimed to have purchased the suit property from the Tanzania Building Agency. In his written statement of defense, the respondent denied the allegation. In accordance with the various documents of title attached in his written statement of defense, the respondent was in essence claiming that the suit property belonged to her late mother Rahia H. Kupaza who purchased it from the Government. In his evidence as DW1, the respondent made a similar account. His attempted to tender the relevant sale agreement into evidence did however not succeed. The trial chairperson refused to admit it on account that the respondent was not the administrator of the estate of the late Rahia H. Kupaza. In his own words, appearing at page 51 of the typed proceedings, the trial chairperson stated as follows:- The witness is the Administrator o f the Estate o f the fate HASHIMU KUPAZA but the objected Sale Agreement shows the suit land belongs to Mrs. RAHIA H. KUPAZA, who is also dead. The two were husband and wife. DW1 cannot tender it since he is not the Administrator o f the estate o f the late RAHIA H. KUPAZA. The Applicant is also aware that vide the documents attached to the Written Statement o f Defence, it was shown that the suit land is claimed to be the property o f RAHIA H. KUPAZA but she never therefore to join her. Let the witness give evidence only in line with how the said Hashim Kupaza was connected with the suit land as he is not capable to tender the documents in the name o f RAHIA H. KUPAZA. Quite unusually, the trial chairperson granted a decree in favour of the said Rahia who was not a party to the proceedings. With that background therefore, it did not come as a surprise to me when the appellant in his first 2 ground of appeal, doubted the propriety of the judgment of the trial tribunal in so far as it declared Mrs. Rahia Kupaza, who was not a party to the proceedings, the lawful owner of the suit property. In her written submissions, the appellant wonders how possible would it be for the respondent to assert ownership interests on the suit property on behalf of her mother without there being an instrument mandating him so to do. In his written submissions in refutation, the respondent contents that, failure to implead the said Rahia does not bar the Court from determining ownership of the suit property. He did not cite any law in support of that view. I have given the rival submissions due consideration. More importantly, I have examined the judgment and proceedings of the trial tribunal. For the reasons that I am going to assign hereinafter, I am in agreement with the appellant in his first ground of appeal. The dispute at the trial tribunal was essentially on the ownership of the suit property. In the first relief, the appellant was calling upon the trial tribunal to declare her the lawful owner of the suit property. She claimed to have purchased it from the Government when she was a public servant as per exhibits P I and P2. The land wherein the house in dispute has been constructed is within the suit property in accordance with her pleadings and evidence. In his defense, the respondent claimed in effect that the suit property belonged to his late mother Rahia who purchased it from the same Government. The trial chairperson while aware that, the legal personal representative of the said Rahia was a necessary party and that, the respondent had not claimed any ownership interest on the suit property, determined the suit in favour of the said late Rahia despite being a stranger to the proceedings. With all respects to the learned trial chairperson, he did not properly exercise his jurisdiction. Indeed, his decision amounts to curtailment of the right to be heard on the party of the late Rahia. This is so notwithstanding that the judgment was in her favour. The trial tribunal being not the tribunal of the last instance, there was a likelihood of a vice versa decision being made on appeal without the personal legal representative of the late Rahia being heard. In my view, once established that there was another person besides the respondent asserting interests on the suit property, the trial tribunal would have not permitted the appellant to litigate on the suit property with a person without interests on it. It should have ordered for joinder of the said Rahia or her legal representative so that she is afforded a right to be heard. A decision made in violation a right to be hard, it is trite law, is null and void. There are many authorities in support of this position. For instance, in ABBASI SHERALLY AND ANOTHER VS ABDULSULTAN FAZALBOY, CIVIL APPLICATION NO. 72 OF 2012, it was held that, the right of a. party to be heard before adverse action or decision is taken against him is so basic that a decision which is arrived at in violation of it will be nullified even if the same decision would have been reached had the party been heard. A similar position was stated in MBEYA-RUKWA AUTOPARTS AND TRANSPORT LTD VS. JESTINA GEORGE MWAKYOMA (2003) TLR 251 On that account therefore, I find the appeal with merit. Since the first ground entails an issue of legality of the judgment and proceedings of the trial tribunal and having established that the same was illegal and therefore null and void, there is no judgment upon which I can consider the remaining grounds. In the final result, the appeal is allowed. The judgment of the trial tribunal is hereby set aside and the proceedings thereof quashed with costs. The file is hereby remitted to the trial tribunal for retrial denovo before another chairperson and new set of assessors. It is so ordered. JUDGE 13/05/2020 5 Date: 13/05/2020 Coram: Hon. C.M. Tengwa - DR For the Appellant Present via video conference For the Respondent- RMA: Monica COURT: Judgment delivered today in the presence of both parties C. Tengwa DEPUTY REGISTRAR 13/05/2020