Stephen Henrico scanned

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 20002 OF 2024 (Arising from the Judgment and Decree of the District Land and Housing Tribunal for Bagamoyo in Application No. 114/2021 delivered on 20h June, 2024) STEPHEN HENERICO MENGO.......................................... APPELLANT VERSUS KAOMBWE STEPHEN HENERICO............................... RESPONDENT JUDGMENT 24h October & 26“ November, 2024 L, HEMED, J. The Appellant one STEPHEN HENERICO MENGO is the father of the Respondent one KAOMBWE STEPHEN HENERICO. He is the one who instituted the suit at the District Land and Housing Tribunal for Bagamoyo which was admitted as Application No. 114 of 2021. In the said suit, the Appellant who was the Applicant claimed for the following reliefs against the herein Respondent; - "(a) The trial Tribunal to deciare the Respondent trespasser into the suit property, plot No. 103 Block 'P' Bagamoyo; i (b) That the place where the Respondent erected houses is part of the land which belong to the Appeiiant/Appiicant. (c) The Respondent be ordered to demolish his structures erected in the suit piece of land. (d) The Respondent to pay costs of the suit. (e) Any other reiief(s) the Tribunal may deem fit to grant." The Respondent herein who was also the Respondent during trial, disputed the claims. He asserted that the Appellant had bestowed the suit land to him in 1995 as a reward for the care he offered the Appellant during hard times. The Respondent asserted to have erected his first house in 1997, of which up to the year 2006 he managed to build four (4) houses in the suit land without any interference from the Appellant, almost 27 years. Having heard evidence from the parties, the trial Tribunal ruled that the Appellant was time barred to institute the suit contrary to section 9(2) of the Law of Limitation Act [Cap. 89 RE 2019]. The learned trial chairman ended up dismissing the suit, hence this appeal on the following grounds: - 2 "1. Kwamba Mwenyekiti wa Baraza amefanya makosa kimantiki na kisheria kwa kuibua pingamizi ia ukomo wa madai wakat wa kuandaa hukumu, na kutoa maamuzi pingamizi hi/o biia kuwapa wadaawa haki ya kusikiiizwa juu ya pimgamizi hi/o. 2. Kwamba Mwenyekiti wa Baraza amefanya makosa kimatiki na kisheria kwa kutoiea maamuzi hoja ambayo haikuwa sehemu ya Ushahidi kutoka pande zote wakati wa kusikiiizwa kwa shauri. 3. Kwamba Mwenyekiti wa Baraza amefanya makosa ya Kimatiki na kisheria kwa kutoa maamuzi ambayo hayaakisi ushahidi uiiotoiewa na pande zote Pamoja na majibu ya dodoso ya Mjibu Rufani 4. Kwamba Mwenyekiti wa Baraza amefanya makosa kisheria kwa kutoa Hukumu ambayo inaathiri Had ya umiiiki iiiyotoiewa kwa jina ia Mrufani ambaye ndiye mmiiiki wa eneo Hlilovamiwa wakati Baraza ia Ardhi na Nyumba ia Wiiaya haiina mamiaka hayo." Hearing of the appeal was done by way of written submissions. Parties complied with the filing schedule directed by the court. Mr. George Kawemba Mwiga, learned advocate acted for the Appellant while the Respondent enjoyed the legal service of Loishiye Kisota, learned counsel. 3 Let me start with the first ground in which the Appellant is complaining that, the trial chairperson raised the point of time limitation and decided on it without affording the Appellant with the right to be heard. The learned counsel argued that the point was raised suo moto by the trial chairperson and the parties were not called to address on the said point. In his opinion, the trial chairman acted contrary to the rules of natural justice. He supported his argument with the decision in Wegesa Joseph M. Nyamaisa vs. Chacha Muhogo, Civil Appeal No. 161 of 2016 where the court of Appeal of Tanzania insisted on the importance of giving the parties the right to address when the court raises a point or issue suo moto. In response, the learned counsel for the Respondent argued that, the point of time limitation emanated from evidence on record. It was contended that, the respondent herein had testified to have been given the suit landed property in 1995 by the Appellant and constructed a house in 1997. In the opinion of the learned counsel, since the matter before the trial Tribunal was instituted in 2021, then 24 years had lapsed making the matter before the trial tribunal time barred. It was stated further that what the trial chairman used to decide the matter was not a point of law rather a 4 point of fact that emanated from evidence. Reliance was made on the decision in Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd (1969) EA 696. The learned counsel urged the court to find the suit time barred. I have gone through the proceedings and the judgment of the trial tribunal and found that the point of time limitation was raised by the trial chairman suo motto when composing judgment. The proceedings do not show if parties were called to address on the point prior to making verdict. I also revisited the issues framed at the commencement of the trial and found that there were three issues framed as follows: - 1. Whether the Applicant had given to the Respondent the suit land measuring 1,768 square meters within Plot No. 103 Block 'P' MWANAKARENGE BAGAMOYO. 2. Whether the Respondent is a trespasser to the suit land. 3. Whether the Respondent has to vacate and remove all his properties from the suit land. From the above, list of issues, whether the suit before the trial tribunal was time barred was not among the issues framed. In the first 5 place, the trial chairman was bound to determine the matter before him based on the issues which were framed on the first day of hearing. The fact that there was no issue in regard to the time limitation, the parties ought to have been called to address on it prior to making the decision on it. I am holding so because, in our jurisdiction the right to be heard is a constitutional one stated under articlel3(6) (a) of the Constitution of the United Republic of Tanzania Cap 2. The right to be heard has been emphasized by courts in plethora of decisions. One among many is that of the Court of Appeal of Tanzania in Luckson Rutatubibwa Kiiza (The administrator of the estate of the late Angelina Bagenyi) vs. Erasmus Ruhungu (The administrator of the estate of the late Gaudensia Rwakailima), Civil Appeal No. 375 of 2021, where it was stated thus: - "It is a cardinal principle of natural justice that a person should not be condemned unheard but fair procedure demands that both sides should be heard." In line with the above authority, it has been the position of the law that, a decision made without giving parties the right to be heard is considered a nullity. This was also insisted by the Court of Appeal of 6 Tanzania in Wegesa Joseph M. Nyamaisa vs. Chacha Muhogo, Civil Appeal No, 161 of 2016. In the present case, it was quite important for the trial chairman to call the parties to address the court on the point of time limitation which he found in the course of composing judgment. Failure to afford the parties opportunity to address on the said point amounted to denial of the right to be heard which is basic in administration of justice. In the light of the foregoing, I find the entire judgment and decree to be a nullity. The fact that the 1st ground disposes the entire appeal, I cannot labor to determine the other grounds. In the upshot, I proceed to make the following orders: - 1. Appeal allowed; 2. Proceedings of 26th June 2024, Judgment and decree of the trial Tribunal are quashed; 3. Records of the trial Tribunal are returned to proceed before another chairman with same set of assessors; and 4. Each party to bear its own costs. Order accordingly. z~\ 7 DAT^^XfeSWLAAM this 26th November 2024. MED 8