Suzan John Joseph

IN THE HIGH OF THE UNITED REPUBLIC OF TANZANI MOROGORO SUB-REGISTRY AT MOROGORO LAND APPEAL NO 5813 OF 2024 (Appeal from the decision of the District Land and Housing Tribunal for Morogoro District at Morogoro in Land Revision No 28 of 2023 originating from Land Dispute No 3 of 2021 of the Konde Ward Tribunal) BETWEEN SUZAN JOHN JOSEPH (Suing under power of Attorney of John Joseph Deng'ela) APPELLANT VERSUS YOHANA JOHN RESPONDENT JUDGMENT MRUMA J This appeal arises from the decision of the Land and Housing Tribunal for Morogoro District In Land Revision No 28 of 2023. In that Revision the present Applicant Suzan John Joseph who Is now suing under the power of attorney of John Joseph Deng'ela had sought to revise the proceedings of Konde Ward Tribunal In Land Application No 3 of 2021. The record available shows that originally there was before the District Land and Housing Tribunal for Morogoro District Land Application No 166 of 2017 between John Joseph Deng'ela Versus Yohana John. The dispute originated from Konde Ward Tribunal wherein John Joseph Deng'ela lost. He was aggrieved and his appeal to the District Land and Housing Tribunal was successful. The District appellate tribunal ordered the matter to be retried and accordingly the records were remitted back to the Ward Tribunal. However, when John Joseph Deng'ela was summoned before the Ward Tribunal and was informed about the order for retrial of the matter, he refused and informed the District tribunal that he will not attend any session before it because he had an appeal pending in the High Court. Following the refusal by John Joseph Deng'ela to participate in the retrial of the matter, the Ward Tribunal ordered the matter to proceed ex-parte against him. During the retrial the present Respondent Yohana John gave evidence to the effect that the suit land belonged to him having had inherited it from his grandfather on his mother's side one Alexander Mbago. He told the tribunal that in 2017 the present Respondent John Joseph Deng'ela unsuccessful sued him before the same tribunal and when he appealed to the District tribunal, the appellate tribunal ordered a retrial, hence the present proceedings which the said John Joseph Deng'ela decided not to participate. After hearing evidence from the Respondent and his witness Ridia John (PW2), the Ward tribunal found that the disputed land belonged to the Respondent Yohana John and declared him the rightful owner of the disputed land. Judgment of the Ward tribunal was handed down on July 2021. On 13^^ February 2023, that is over 17 months after the judgment of the Ward Tribunal was passed, John Joseph Deng'ela through Suzan John Joseph (to whom and for reasons not stated he gave power of attorney) instituted Miscellaneous Civil Application No 28 of 2023 in the District Land and Housing Tribunal praying for orders that:- 1. The District tribunal be pleased to issue an order for revision from ex-parte decision of Konde Ward Tribunal dated 1^ July 2021; 2. Costs of the suit. The application was preferred under the provisions of section 36 (1)(b) and (2) of the Land Disputes Courts Act which vests in the District Land and Housing Tribunal powers to call for and examine the record of any proceedings of the Ward Tribunal for the purpose of satisfying itself as to whether in such proceedings the tribunal decision has:- (a) Not contravened any Act of Parliament, or subsidiary legislation or (b) Not conflicted with the rules of natural justice and whether the tribunal has been properly constituted or has exceeded its jurisdiction and may revise any such proceedings. From the above cited law, it goes without saying that for the District Tribunal to revise proceedings of a Ward Tribunal it must be satisfied that the proceedings either contravened any Act of the Parliament or subsidiary legislation or that they are in conflict with the rules of natural justice. In the present proceedings the complaint was that the Tribunal denied the Appellant the right to be heard which is one of the principles of natural justice and which is embodied under Article 13(6)(a) of the Constitution of the United Republic of Tanzania. I have no doubt that denying a party right to be heard is a clear breach of and conflicts with the rules of natural justice, but the issue whether there was such bfeach is a question of fact which in terms of section 110 (1) of the Evidence Act, must be proved by he who so asserts. In the present case the evidence on records shows that the Appellant was summoned before the tribunal and was Informed about the retrial order but he categorically refused to participate on the ground that he had a pending appeal before the High court. While Article 13 (6) (a) of the Constitution affords equal rights to be heard to every person, the right to exercise that right is optional. In other words no person is forced by any law to exercise that right. What is mandatory under the Article is to afford a person concerned that right and the choice Is his whether to take and exercise It or not Is his. In the case at hand the Appellant opted not to exercise his right therefore he can be heard complaining that he was denied his right. That being the position of the law, this appeal has no merits and It Is dismissed with costs. Order accordingly, couRr0 O" R. MRUMA T JUDGE 6.12. 2024