sylvester paul massawe vs akiba commercial bank another 2018 tzhc 2155 24 september 2018

Page 1 of 6 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA DISTRIC REGISTRY) AT ARUSHA LAND APPEAL NO. 12 OF 2018 (Arising from the decision o f Arusha District Land and Housing Tribunal Miscellaneous Application No. 76 o f 2017 as per Hon. Kagaruki, Chairperson) SYLVESTER PAUL MASSAWE......................................... APPELLANT VERSUS AKIBA COMMERCIAL BANK LIMITED ...................^RESPONDENT MAJEMBE AUCTION MART.................................... 2ndRESPONDENT JUDGEMENT MAIGE, J. The history of this appeal traces its background in 2014 when a Land Application No. 48 of 2015 against the respondents herein was instituted at the District Land and Housing Tribunal for Arusha, (henceforward, "the trial tribunal"). Initially, the applicant had represented himself as Herman Masawe. This is evident in the initial application which was filed on 31st March 2014. The proceedings of the trial tribunal reveal that on 18th August 2015, the applicant was granted an order for amendment of the application within 14 days from the date thereof. It is equally event on the record of the trial Page 2 of 6 tribunal that; the applicant filed an amended application on 25th August 2014 wherein he represented himself as SYLVESTER PAULO MASAWE. On 1st December 2012, the application was dismissed for want of appearance on the part of the applicant. In the dismissal order however, the name of the applicant was Herman Masawe. The applicant was not happy with the dismissal order. He henceforth filed Miscellaneous Land Application No. 76 of 2017. He was inviting the trial tribunal to set aside the dismissal order and readmit the application. The application was dismissed on account that the applicant has no locus stand to prefer the application. Once again aggrieved, the applicant has filed the instant appeal. In essence, he is faulting the trial tribunal in holding that he had no locus stand to pursue the application. By leave of the Court, the appeal was argued by way of written submissions which were filed in due compliance with the Court order. For the appellant, the submissions were prepared and filed by Mr. Lengai Nelson Merinyo, learned advocate whereas for the respondent by Mr. Edwin Slayo, learned advocate. Owing to the narrowness of the line of the contention, the counsel submissions were very brief. I have duly considered the submissions and I will no determine the appeal. As I said above, the proceedings and the record of the trial tribunal indicates that the initial application which was in the name of Herman Masawe as the applicant was amended, on 25th August 2014 pursuant to the order of the trial chairman dated 18th August 2014. In his reasoning, which has been Page 3 of 6 reflected in the submissions in reply, the trial chairman, while admitting that there was a copy of the amended application in the file, he could not consider it on a suspicion that it might have been fabricated. His suspicion was based on the claim that the amended application does not bear a seal of the tribunal to indicate the date of reception. With great respect to the trial chairperson, it was terribly wrong for him to dismiss the application for mere suspicion and more importantly without making a proper inquiry to establish if at all his suspicion was well founded. I have taken time to study the proceedings and the whole record of the trial tribunal. Mr. Lengai is quite right. There is everything in the record of the trial tribunal to suggest that the initial application was legally amended to reflect the correct name of the applicant. First, there is an order of the trial chairman dated 18th August allowing the appellant to amend his pleading. Two, there are two copies of amended application on the record indicating that the amended application was filed on 25th August 2014. Contrary to the claim by the trial chairman, one of the copies of the application bears a stamp of the trial tribunal signifying that it was duly received on 25th August 2014. Three, in the proceedings of the trial tribunal on the record, the name of the appellant is reflected. The name of Herman Masawe does not appear. This indicates that the amended application was filed. In addition, the proceedings of the trial tribunal indicate that on 3rd April 2014, the trial chairperson granted an ex parte injunctive order restraining the respondents from disposing of the suit property pending Page 3 of 6 reflected in the submissions in reply, the trial chairman, while admitting that there was a copy of the amended application in the file, he could not consider it on a suspicion that it might have been fabricated. His suspicion was based on the claim that the amended application does not bear a seal of the tribunal to indicate the date of reception. With great respect to the trial chairperson, it was terribly wrong for him to dismiss the application for mere suspicion and more importantly without making a proper inquiry to establish if at all his suspicion was well founded. I have taken time to study the proceedings and the whole record of the trial tribunal. Mr. Lengai is quite right. There is everything in the record of the trial tribunal to suggest that the initial application was legally amended to reflect the correct name of the applicant. First, there is an order of the trial chairman dated 18th August allowing the appellant to amend his pleading. Two, there are two copies of amended application on the record indicating that the amended application was filed on 25th August 2014. Contrary to the claim by the trial chairman, one of the copies of the application bears a stamp of the trial tribunal signifying that it was duly received on 25th August 2014. Three, in the proceedings of the trial tribunal on the record, the name of the appellant is reflected. The name of Herman Masawe does not appear. This indicates that the amended application was filed. In addition, the proceedings of the trial tribunal indicate that on 3rd April 2014, the trial chairperson granted an ex parte injunctive order restraining the respondents from disposing of the suit property pending Page 4 of 5 pending hearing and determination of the dismissed application. Had it been that the appellant had no locus in the application number 48 of 2014, he would have not procured the injunctive order in question. For those reasons therefore, I find this appeal with merit. The trial tribunal was wrong in dismissing the application for want of locus standi. As a result, this appeal is allowed. The ruling and the drawn order of the trial tribunal are hereby quashed and set aside. The file is remitted to the trial tribunal for determination of the application on merit by another chairperson. The same should be concluded within 45 days from the date of remittance of the file to the trial tribunal. The respondents shall pay the costs of prosecuting the appeal. Right to appeal is dulv exnlained. Delivered this 24th day of September 2018 in the presence of Lenagi Nelson Merinyo, advocate for the appellant and Mr. Edwin Shiyo advocate for the respondents. Page 5 of 5 Date: 24/9/2018 Coram: I.Maige, J Appellant: For the Appellant: 1st Respondent: Present is person. 2nd Respondent: For the Respondent: Absent C/C: Mariam Court: Judgment delivered; Appeal allowed with costs.