SUBIRA KAONEKA JUDGEMENT 2

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MOROGORO SUB-REGISTRY AT MOROGORO LAND APPEAL NO. 28439 OF 2024 (Originating from Land Application No. 14 of 2023 before the District Land and Housing Tribunal for Morogoro) SUBIRA ABDALLAH KAONEKA ……………………………………………………. APPELLANT VERSUS JANE OSCAR MAPUNDA …………………………………………………………. RESPONDENT JUDGMENT Date: 18th February, 2025 & 03rd March, 2025 SINDA, J.: The appellant is aggrieved and wishes to challenge the decision of the District Land and Housing Tribunal for Morogoro at Morogoro (the Tribunal) in Land Application No. 14 of 2023 delivered on 30 October 2024. The brief facts of the case are that the appellant filed an application at the Tribunal and prayed to be declared as the lawful owner of the house situated on Plot No. 251 Block ‘A’ Kilimanjaro within the Morogoro 1 Municipality (the Disputed Property). That, the appellant acquired the Disputed Property through inheritance from her deceased mother one Clara Sebastian Tarimo (the Deceased). The Deceased purchased the same for a consideration of Tanzanian Shillings Twenty-Seven Million (TZS 27,000,000/=) via a public auction held on 14 September 2017. The vendor was the National Microfinance Bank (NMB), who utilized an auctioneer named Gadau Auction Mart & Company Limited. In alternative prayers, the appellant sought an order from the Tribunal that the respondent be ordered to vacate the Disputed Property, pay rent at the rate of Tanzanian Shillings One Hundred and Fifty Thousand (TZS 150,000/=) until the house is surrendered, and the costs of the application. The application was dismissed due to procedural irregularities, hence the instant appeal. The appellant, being aggrieved with the decision of the DLHT, made this appeal on the following grounds that: 1. That, the District Land and Housing Tribunal of Morogoro erred in law and facts by introducing a new issue which was not pleaded and raised. 2. That, the District Land and Housing Tribunal of Morogoro erred in law and fact in introducing a new issue without affording parties the right to be heard. 2 3. That, the District Land and Housing Tribunal of Morogoro erred in law and fact in failure to address the issue raised. 4. That, the District Land and Housing Tribunal of Morogoro erred in law and fact in awarding cost on the matter which was raised suo moto. At the hearing, the appellant was represented by Mr. Jackson Liwewa learned advocate, and the respondent was represented by Ms. Kay Zumo, a learned advocate. The hearing was conducted orally. On the first ground of appeal, Mr. Liwewa submitted that the Tribunal erred in law and fact by introducing a new issue not raised by either party during the hearing at the Tribunal. He referred to pages two (2) and three (3) of the Tribunal's judgment (the Judgement) that the issue of an irregularity was raised concerning the non-joinder of Sillas Samson Magalla and NMB as parties to the case which was not pleaded or raised in the appellant application or the respondent's response. He further submitted that it is a well-established principle that courts are bound by pleadings asstated in James Funke Ngwagilo vs. Attorney General, [2004] TLR 161 in which the court emphasized that parties are bound or restricted to the issues arising from their pleadings. 3 He also stated that the Tribunal's act of introducing an issue not raised by the parties was improper. Arguing on the second ground of appeal, Mr. Liwewa submitted that the Tribunal erred in law by introducing an issue of non-joinder of parties without affording the parties the right to be heard. He stated that on pages two (2) and three (3) of the Judgment, the Tribunal raised the issue of irregularities concerning the non-joinder of Sillas Samson Magalla and NMB as parties while neither the appellant nor the respondent were given an opportunity to address the court on the issue. The counsel further stated that the right to be heard before adverse action is taken is fundamental as consistently emphasized by the courts in the cases of Abbas Sherally and another vs. Abdul Sultan Haji Mohamed Fazalboy, (Civil Application No. 133 of 2002) [2005] TZCA 105 (17 November 2005), (Tanzlii) and Darish Industries Limited vs. Mount Meru Milleers Limited, (Civil Appeal No 144 of 2015) [2016] TZCA 2076 (27 October 2016) (Tanzlii) at page 10 which stated that: "The right of a party to be heard before adverse action or decision is taken against such party has been stated and emphasized by the courts innumerous decisions. That right is so basic that a decision which is arrived at in violation of it will be 4 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 natural justice”. In addition, Mr. Liwewa stated that, the act of the Tribunal to decide on the issue of irregularities without first affording the parties a right to be heard contravenes the established legal principles of natural justice. Concerning the third ground of appeal, Mr. Liwewa contended that the Tribunal erred in law and fact by failing to address the issues raised in the pleadings. He argued that the primary issues before the Tribunal were: one, who is the rightful owner of the Disputed Land, and two, what reliefs are the parties entitled to. He added that these issues as framed from the pleadings were not adequately addressed. He emphasized his argument by citing the case Kellu Kamo Lucas vs. Dr. Luis B. Shija, (Civil Appeal No. 63 of 2022) [2023] TZCA 17924 (12 December 2023) (Tanzlii) at pages 23 and 24 stating that: “It is trite law that, cases must be decided on the issues framed and not otherwise”. Also, the counsel cited the case of Africarriers Limited vs. Millenium Logistics Limited, (Civil Appeal No. 185 of 2018) [2021] TZCA 3535 (16 5 November 2021) (Tanzlii), Justice Fikirini (as he then was) at page 10 emphasized that: “The court is obliged to decide on each and every issue framed in Making its decision”. Furthermore, the counsel stated that the impact of failing to address issues framed was highlighted in the case of Omary Rishael Kitomari vs. Kuringe Real Estate Co. Ltd, (Civil Appeal 250 of 2022) [2024] TZCA 799 (22 August 2024), (Tanzlii) at page 14 Ismail, J.A. stated that: “The issues raised by parties to a case should be addressed and resolved. Failure to do so has the effect of rendering the decision Bred out of the failure flawed”. Submitting on the fourth ground, Mr. Liwewa argued that the Tribunal erred in law and fact by awarding costs on a matter raised suo moto. He stated that it is an established practice in the High Court and the Court of Appeal that costs are not awarded for issues raised suo moto. The advocate further submitted that in Application No. 14 of 2023, the Tribunal raised issues suo moto, the parties were not heard and costs were awarded which contravenes the established practice. He prayed the appeal to be allowed with costs. 6 In reply submission, Ms. Zumo prayed that the reply to the memorandum of appeal be adopted. Submitting on the first ground of appeal, she strongly contended that the Tribunal did not introduce new issues suo moto. That, what was addressed by the Tribunal was the core factor of the case to determining the issue of ownership. She asserted that the Tribunal considered the pleadings and testimony from both sides and reached its decision. She emphasized that on page three (3), paragraph three (3) of the Judgment it is states that: "Kwa kupitia kumbukumbu katika maombi haya, ni wazi mdai anadai nyumba yenye mgogoro ni mali yake na aliipata kama mnufaika wa mirathi ya mama yake ambaye alinunua nyumba katika mnada wa NMB, mdaiwa ambae yuko ndani ya nyumba hiyo amekiri kuchukua mkopo NMB lakini anadai nyumba sio yake, ni ya Sillas Samson Magalla na kwamba hata hati aliyotumia kukopea ni ya Sillas, na Sillas hajui juu ya mkopo huo". She further submitted that at page two (2), paragraph two (2) of the said Judgment it states that: 7 “Upande wa mdaiwa alieleza kuwa nyumba yenye mgogoro ni mali ya Sillas Samson Mangala” Therefore, she stated that the Tribunal's decision was based on the pleadings and proceedings before it. Concerning the second ground of appeal, Ms. Zumo maintained that the issue regarding Sillas Samson Magalla and NMB to be joined in the matter arose from the testimonies of the parties and not raised suo moto by the Tribunal. To emphasize her argument, she cited the case of Juma Said Chande vs. Morogoro Municipal Council & Two Others, (Land Appeal 40 of 2022) [2022] TZHC 14389 (9 September 2022), (Tanzlii), the court quoted the case of Norman vs. Overseas Motor Transport [1959] 1EA 131, which held that: "If, though no issue is framed on the fact, the parties adduce evidence on the fact and discuss it before the court, and the court decides the point, as if there was an issue framed on it, the decision will not be set aside on appeal on the ground merely that no issue was framed...Nevertheless, the failure to frame the issues is an irregularity and the question is whether, notwithstanding the failure to frame the issues, the parties at the Trial knew what the real 8 question between them was, that the evidence on the question had been taken and the court duly considered it." The counsel further argued that the parties at the trial knew the real question and that there were necessary parties required to be joined. Ms. Zumo submitted on the third ground of appeal that the Tribunal addressed the issue of ownership and noted that it could not decide on the matter without Sillas Samson Magalla and NMB joined as parties to the case. In conclusion, on the fourth ground of appeal, Ms. Zumo contended that there was no issue raised suo moto and that the Tribunal's decision was based on pleadings and evidence. She asserted that the appellant should have known the necessary parties required to be joined initially and not for the Tribunal to say so. She also insisted that the Tribunal's decision to award costs was correct. She prayed this honourable court to dismiss the instant appeal with costs and that the Tribunal's decision be upheld. In rejoinder, Mr. Liwewa reiterated his submission in chief by adding that the issue of irregularities regarding joining Sillas Samson Magalla and NMB was not pleaded. That, they were denied the right to be heard and the 9 Tribunal's decision did not consider their pleadings. He prayed that the appeal be allowed with costs. I have gone through the submission by the parties, the Tribunal records, the proceedings, and the Judgment. In determining the merit of this appeal, I will labour and discuss the first, second and third grounds of appeal together which I believe is sufficient to dispose off this appeal. I will not deal with the fourth ground of appeal as it will be an academic exercise. In the cause of determination of the first, second, and third ground of appeal this Court addresses that, it is a trite law that the court is bound by the pleadings of the parties to the case. This principle was stated in the case of Barclays Bank T. Ltd vs. Jacob Muro (Civil Appeal 357 of 2019) [2020] TZCA 1875 (26 November 2020) Tanzlii, at pages 11 and 12 of the judgment the court of appeal of Tanzania at Mbeya referred, with approval, to a passage in an article by Sir Jack I.H. Jacob bearing the title, "The Present Importance of Pleadings," first published in Current Legal Problems (1960) at p. 174 thus; “…The court itself is as bound by the pleadings of the parties as they are themselves”. 10 The matter before the Tribunal was initiated by the application lodged by the appellant and it is evident that among the orders sought was, to be declared as the lawful owner of the Disputed Land, and an order for the respondent to vacate the Disputed Property. However, when the Judgment was delivered the issue of non-joinder of Sillas Samson Magalla and NMB was raised by the Chairman. This court observed that the Tribunal in the course of composing the judgement clearly noted the irregularity that in order to properly address and determine the issue raised in the pleadings by the parties, it was crucial that the necessary parties that is Sillas Samson Magalla and NMB be joined to avoid the miscarriage of justice and properly determine the matter. In consequence, the Tribunal failed to deal with the issues raised in the pleadings and dismissed the matter with costs. However, from the proceedings it is evident that the Tribunal in the course of composing the judgment failed to afford the parties an opportunity to be heard in accordance to the principles of natural justice on the issues raised by the Chairman of non-joinder of Sillas Samson Magalla and NMB. Upon reviewing the Tribunal's proceedings and the Judgment, I found that nothing was recorded to indicate that the parties were given an opportunity to address the irregularities concerning the non-joinder of 11 Sillas Samson Magalla and NMB before the pronouncement of the Judgement. As such, the chairperson of the Tribunal addressed that issue in her judgment, which is contrary to the law, as stated in the case of Alisum Properties Limited vs. Salum Selenda Msangi (Civil Appeal 39 of 2018) [2022] TZCA 389 (24 June 2022), Tanzlii at page 14 of the judgment of the court of appeal of Tanzania at Dar es Salaam stated that; “We are increasingly of the view that, what was done by the learned High Court Judge to introduce the said new two issues in the course of composing the judgment was contrary to the law and principles of natural justice on the right to be heard. Basically, cases must be decided on the issues or grounds on record and if it is desired by the court to raise other new issues either founded on the pleadings or arising from the evidence adduced by witnesses or arguments during the hearing of the appeal, those new issues should be placed on record and parties must be given opportunity to be heard by the court”. Accordingly, the appeal is found with merit. Therefore, I see no need to proceed with the fourth ground of appeal. As the first, second, and third ground of appeal are enough to dispose of this matter. I will therefore not 12 discuss the fourth ground of appeal as it will be an academic exercise to do so. Consequently, the appeal is allowed. Therefore, I hereby quash the judgment and decree of the Tribunal in the Land Application No. 14 of 2023, save for the proceedings. I order the matter be remitted to the same Chairperson of the Tribunal, to resume proceedings at the stage of judgment composition in an expeditious manner, specifically to afford the parties an opportunity to address the issue of non-joinder of Sillas Samson Magalla and NMB. No order as to costs. It is so ordered. Right to appeal is explained. DATED at MOROGORO on this 03rd Day of March, 2025. A. A. SINDA JUDGE 03rd March 2025 13