stivin clemens vs julius pendakazi nkwazi 2022 tzhclandd 22 28 january 2022

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SUMBAWANGA DISTRICT REGISTRY AT SUMBAWANGA MISC. LAND APPEAL NO. 15 OF 2020 (Originating from Decision of the District Land and Housing Tribunal for Rukwa District at Sumbawanga in Land Appeal No. 93 of 2017 Civil Case No. 51 of 2017 Kipande Ward Tribunal) STIVIN CLEMENS ~| APPELLANT CRISPIN CLEMENS VERSUS JULIUS PENDAKAZI NKWAZI.................................. RESPONDENT JUDGEMENT Date of last Order: 08/11/2021 Date ofJudgment: 28/01/2022 NDUNGURU, J. This is a second appeal. The matter has its genesis from Kipeta Ward Tribunal (henceforth the trial tribunal). At the trial tribunal the respondent herein unsuccessfully sued the appellants claiming ownership of 20 acres of land. Dissatisfied the respondent appealed to the District Land and Housing Tribunal for Rukwa (henceforth the Appellate Tribunal) where he was declared the rightful owner of the disputed land. Aggrieved by the appellate tribunal decision, the appellants have preferred this appeal by lodging the following grounds of appeal; i 1. That the appellate tribunal erred in deciding the dispute without analyzing and considering evidence adduced by the appellants. 2. That the appellate tribunal erred in deciding the dispute in favour of the respondent for lack of cogent evidence in proving the ownership of the land. 3. That the appellate tribunal erred in law and fact to give decision in favour of respondent while one of the Ward tribunal members was not present when Donatha Mgawe was not present when respondent adduced his evidence. 4. That the appellate tribunal erred in law to give decision in favour of respondent which does not show how it was arrived. As this appeal was called on for hearing, the appellants had a legal service of Mr Peter Kamyalile learned advocate whilst the respondent did not appear despite substituted service by way of publication The learned advocate for the appellants prayed to this court for ex-parte hearing of the appeal by way of written submission. This court ordered the case to proceed ex-parte and set a date for the counsel for the appellants to file submission. Mr. Peter Kamyalile first prayed leave of this court under Order XXXIX Rule 2 of the Civil Procedure Code, Cap 33 RE 2019 to address the irregularity he found in the tribunals below. Mr Peter Kamyalile submitted that the second appellant was not accorded the right to a fair hearing since he was denied the rights to defend his case. He stated 2 that the record shows that second appellant was not given the right to testify in the trial tribunal. The legal consequences of violation of right to a fair hearing/trial is to render the proceedings and judgement a nullity. He referenced the position to the decision of this Court in the case of Moses Koyo and 3 Others versus Peter Mpulo, Misc. Land Appeal No. 12 of 2016, High Court of Sumbawanga, unreported. Learned counsel abandoned ground 3 and 4 of the appeal and he went on submitting as regards ground one and two together. He contended that the evidence adduced by the first appellant proved on the standard required that the disputed land belongs to him. That first appellant started to own the disputed land since 2000 when he cleared the virgin forest. That he stated his ownership was also proved by local leaders and other witnesses of the locality. Mr Kamyalile further contended that the evidence of the respondent was very weak and contradictory. The respondent testified that the disputed land belongs to him and he started to own it on the 1987 when his father become very old. But when he was asked the question for clarification by Romano Mgawe, he stated that the disputed land belongs to his family, also when he cross-examined by the 2nd appellant, he said that he was given the disputed land as caretaker. Therefore, he was the view that the respondent failed to discharge his 3 legal burden by proving whether he is the lawful owner of the disputed land personally or the disputed land is owned by his family. Mr Kamyalile further contended that the evidence adduced by first appellant was very strong and heavier than that of the respondent. Therefore, it was wrong for the Appellate Tribunal to set aside the decision of the trial tribunal on the ground that the evidence of the appellant was weak compared to that of respondent. He referenced the case of Hemedi Said versus Mohamed Mbilu [1984] TLR 113, HC where this court held thus; "According to law both parties to a suit cannot tie, but the person whose evidence is heavier than that of the other is the one who must win". Learned counsel submitted that there is no any evidence of the 2nd appellant adduced at the trial tribunal. It is a wonder where the evidence of the 2nd appellant alleged to be weak compared to that of respondent narrated in the Judgement come from. He cited the position of this Court in the case of Anthony Kingazi versus Milka Maiga, Misc. Land Case Appeal No. 84 of 2016 held that; "Also, after perusing the proceedings of the trial tribunal, it is nowhere indicated that the appellant's evidence narrated in the judgement of the lower tribunal came from." 4 He finally prayed for the appeal be allowed and nullify the entire proceedings and decision of the tribunals below or declare the first appellant the lawful owner of the disputed land with costs. I have keenly followed the arguments of the appellants, learned advocate and I have read between the lines the appellants grounds of complaint and the entire proceedings of the tribunals below. Let me, first start with the irregularity raised and addressed by the learned advocate for the appellants during the hearing of the appeal as regard the right to fair hearing. Determining that irregularity may alone suffice to dispose of this appeal without addressing other grounds. It is apparent, upon my perusal of the records of this appeal, that before the trial tribunal Julius Pendakazi Nkwazi , the respondent sued the two appellants herein, Stivin Clemens and Crispin Clemens. After the closure of the complainant case, only the first appellant one Stivin Clemens testified to defend his case as regards the claim of land by the complainant, the second appellant was not given opportunity to defend on his part. In civil litigation, the law is very clear that both parties' complainant cum appellant and defendants cum respondent should prosecute their cases. The complainant starts with the building of his 5 case along with witnesses if any, then follows with cross examination by the adverse party and the tribunal members. After the closure of the complainant case, then comes respondent's case with his witnesses if any, cross examination follows by the adverse party and tribunal members. However, in this case at the trial tribunal, Crispin Clemens, the second appellant herein was not given an opportunity to defend his case at all. Thus, he was not afforded a right to a fair trial as guaranteed in the Constitution of the United Republic of Tanzania in Article 13 (1) and 6 (a) which stipulates as follows: - All persons are equal before the law and are entitled without discrimination, to protection and equality before the law. (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 hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned." (Emphasis is mine). 6 There are numbers of authorities of this Court and Court of Appeal which has repeatedly been emphasizing on the right to a fair trial; See the case of Tan Gas Distributors Ltd vs Moahmed Salim Said, Civil Application for Revision No. 68 of 2011, DPP vs Daudi Pete [1993] TLR 22, Ndyanabo vs Attorney General [2001] 2 E.A 483, Abbas Sherally & Another vs Abdul Sultan Haji Moahmed Fazalboy, Civil Applocation No.33 of 2002, unreported. The decision in Abbas Sherally & Another vs Abdul Haji Fazalboy above, the Court of Appeal of Tanzania held that; "The right of a party to be heard before adverse action or decision is taken against such a party has been stated and emphasized by the Courts in numerous decisions. That right 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, because the violation is considered to be a breach of naturaljustice." In the circumstances of this case, there is no gainsaying that the second appellant did not receive a fair trial in the sense that he was not afforded an opportunity to defend his case in the trial tribunal which was an infringement on his constitutional right, and there was no reasons advanced on records for such flaw, 7 therefore, the lower trial and appellate tribunal proceedings and decisions cannot stand, hence a nullity and the same cannot be salvaged by the provision of section 45 of the Land Disputes Courts Act, cap 216, RE 2019 as the same has in fact occasioned a miscarriage of justice. The Orders made consequent to such nullity proceedings and decisions of both tribunals below are accordingly quashed and set aside. This court further order that the status quo before institution of the case before trial tribunal be maintained. Any party is at liberty to institute a fresh case. No order as to costs. It is so ordered. D. B. Ndunguru JUDGE 28. 01. 2022 8