20181009 TZHC Mwanza2

i, . j IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY) ATMWANZA LAND APPEAL NO. 61 OF 2018 (Originating from Misc Land Application No. 45/2018 and arising from Land application No. 156/2016 at DLHT-Musoma at Musoma) I . WAMBURA RICHARD WIRAKA (Adininistrator of Estate CHEREHANI MKIRYA WIKAMA) ............ :........ APPELLANT I VERSUS I 1. JOSEPH KITANGANYA CHARAHANI 2. ILESA BINOTI 3. MNANKA MISANGA 4. KISALE MIHORI 5. NGA'AMBO KITEME ....... '.. RES PON DENTS 6. TATU MWITA NG'ONGO 7. ROBHI ITOGORO s. MSANGA WANKURU JUDGMENT j 26.09.2018 & 09.10.2018 A.Z.MGEYEKWA, J The appellant appealed to this court following his dissatisfaction with ' the decision of the Musoma Distfict Land and Housing Tribunal in Application No. 45 of 2018 dismissing his application seeking to set aside dismissal order of his main application. j 1 The appellant was the applicant in Application No. 156 of 2016 before the District Land and Housing Tribunal for Musoma, his application was dismissed because he could not enter appearance on the date the matter was set for hearing. The appellant filed Misc. Application No.45 of 2018 before the same tribunal praying for restoration ; of the dismissed application. The application was dismissed for failure to provide sufficient reasons for his non-appearance. The appellant being dissatisfied by the said dismissal order appealed to this court on six grounds of appeal as follows; 1. That, the trial court erred in law and facts for base on extraneous matter for failure to balance the probability of evidence adduced by the appellant on the ground of sickness and had attended medical treatment at hospital but the trial chairperson as attack only the facts of the appellant who filed the application With merits over the restoration of land application which dismissed for want of prosecution. Hereby attached the medical treatment of the hospital as annexture and marked PPR-01. 2. That the trial court erred in fact for failure to recognize the name of the hospital was indicated to the lab stamp of such hospital on the medical document 2 3. That, the trail tribunal erred in law and facts for delivered the I judgement without the opinion of the tribunal qssessor~ which is contrary to the law. 4. That, the trial court erred in law and facts for failure to recognize the signature of the doctor who signed at the medical documents of the hospital at nearest of the lab stump of the hospital 5. That, the trial tribunal erred in law and fact for failed to recognized the medical documents which adduced by the appellant and proof that he failed to appear due to the sickness and iwent to hospital for treatment I 6. That, the trial tribunal erred in law and facts for dismiss the ' application for restoration, without give the rights of the appellant to be heard thus leading to unjust and biased decision for dismiss the application. Before this court the appeal was determined ex-parte because the respondents did not appear four times without notice to the court, despite being duly served and being aware of the matter. At all the material times, the appellant was appearing in person. I Having not much to say the appellant stated that he was sick at the time the application was called for hearing and the Chairman of the DLHT dismissed the application. The appellant stated that on 14th day of January 2018 he was undergoing medical treatment that he was unable to attend I I 3 the matter on the said hearing date. He submitted further that he had a sick sheet which was certified by the hospital and signed by the Doctor. The appellant also submitted that the Chairman of District Land and Housing Tribunal erred in law for delivering the judgment without the opinion of the tribunal assessors. In record it is shown that the Application No. 156 of 2016 was fixed for hearing on 17/05/2017 both parties were present, hearing was set on 25/07/2017 all parties were present except the 6th respondent. The Appellant further submitted that on 12/09/2017and the appellant presented his case and at the end it was set to proceed on 02/11/2017 where it was adjourned to 15/01/2018 when the appellant missed due to sickness. According to the Appellant, it was the only day that he missed the case and is when the trial chairman decided to dismiss the application. After having gone through the appellant's submission and extensive perusal of the records of the trial Tribunal I have realized the following: (i) That the learned Chairman dismissed the matter on 15th day of January, 2018 on account of none appearance of the applicant. (ii) The application was dismissed when the applicant had already adduced his evidence and closed his case. (iii) The respondent had opened his case. (iv) On the date which the application was dismissed the matter was to proceed with the different case. 4 From the above findings, I am not going to determine the grounds of appeal on merits, rather the question on whether the trial Chairman was justified in law to dismiss the partly heard case on non-appearance of the applicant? I am raising such question because the matter before the trial tribunal was partly heard by the date when it was dismissed on account of non-appearance of the applicant/appellant pursuant to Regulation 11(1) of the Land Dispute Courts (The District and Housing Tribunal) Regulations, 2003 GN.174/2003. In order for the Chairman to dismiss the application for non- appearance of the applicant pursuant to Regulation 11(1) of the Land Dispute Courts (The District and Housing Tribunal) Regulations, 2003 GN.174/2003, it presupposes that the matter should be coming for the th commencement of a hearing. In the present case, the matter on the 15 day of January 2018 was coming for proceeding with the hearing. According to the proceedings, the Applicant had closed his case, and it was for the respondents to defend. The question, is whether the Chairman was justified in dismissing the application where the applicant's evidence was already on record? The answer to that question is definitely not, because the procedure is that when the applicant fails to appear on the subsequent dates without any justified cause when the matter was partly heard, the Chairman has to order closure of the case of the absent party and allow the present party to present its case in the absence of that another party. 5 In the present case, the appellant had already closed his case, and on the day when the matter was dismissed it was to proceed with the defence case. In my firm opinion, if the trial Chairman was of the opinion that the applicant's non-appearance was unjustified; he ought to have ordered the respondent to proceed to present their defence case in the I absence of the applicant. It is my firm view that the circumstance of the error, calls the intervention of this Court loudly notwithstanding the merits of the appeal. From the above findings and analysis, I invoke the provision of section 43 of the Land Dispute Courts Act, Cap. 216 which vests revisional powers to this court and proceed to revise the proceedings of the District Land and Housing Tribunal for Musoma in Misc. Application No.45 of 2018 and Land Application No. 156 of 2016 in the following n,anner:- (i) The proceedings in Misc. Application No.45 of 2018 and the orders made thereof are hereby quashed and set aside, (ii)The dismissal order made on 15/01/2018 in Land ,Application No. 156 of 2016 is hereby set aside and vacated ' (iii) The matter to proceed inter-parties from where it ended before another Chairman. (iv) No order as to costs. Order accordingly. The right of Appeal is fully explained. 6 j Dated at Mwanza this date 9th day of October 2018. .. '