WELA NGWIBHOMBI Land Appeal 69

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB REGISTRY OF SHINYANGA AT SHINYANGA LAND APPEAL NO. 69 OF 2023 (Originating from Misc. Application No 66 of2023 on Land Application No. 76 of 2023 at Maswa District Land and Housing Tribunal). 1. WELA NG’WIBHOMBI.……………….……… 2. DOMA WELA …………………………………. APPELANTS VERSUS EVARIST SAMWEL ……….….…………………………..RESPONDENT (As the Administrator of the estate of the late SAMWEL NOTI) JUDGMENT 7th March & 22nd April, 2024. MASSAM J. Respondent before the District Land and Housing Tribunal of Maswa in Maswa in Land Application No, 76 of 2014, sued the Appellants, claiming to be declared as the lawful owner of piece of Land of about 20 acres located at Kidabu village in Maswa District since it was owned by his late grandfather one Samwel Noti who purchased it from One Maduka Masegani way back in 1979, the 2nd respondent in that suit and invited the 1st Appellant in this matter to stay on the land who also invited his son 2nd Appellant herein, who sold a piece of land to the 4th respondent by that time. Before the Tribunal, the 1st Appellant and 1 the 4th respondent resisted the claim against them whereas the 1st Appellant contended that, he was given that land by the 4th respondent after he had left to live to Geita. After the full trial the Tribunal found out that, 1strespondent (1st the appellant) proved his case so he was the lawful owner of the disputed land. Dissatisfied with that decision, the respondent herein appealed to this court in Land Application No 16 of 2015, before V.L. MAKANI, J. who dismissed the appeal by holding that, the trial Tribunal addressed itself well in respect of the evidence before it so she cannot fault its decision. Being unhappy, again, the respondent made an application for review of the Judgment, decree and orders contained in Land Application No 16/2015, but unfortunately, the respondents (now the appellants) choose not to appear though they were issued with notice. In the result, C. P. Mkeha, Judge made an order by quashing the trial tribunal proceedings and set aside the judgment, decree and orders thereto, and remitted the matter to the tribunal to be tried again and dealt with in terms of what the law directs. The Trial tribunal then heard the matter ex parte and held in favour of the Respondent herein on 20/07/2023 by declaring that the disputed land belongs to the deceased one Samwel Noti whose 2 administrator is the respondent in this matter. Aggrieved therein the appellants herein filled Misc. Land Application No. 66 of 2023 before the Tribunal for setting aside the ex-parte judgment delivered on 20/07/2023 in Land Application No. 76/2014 but unfortunately was dismissed for lack of merit. Being pained by the ruling and orders of the trial tribunal, the appellants chose to appeal to this court based on two grounds that, 1. That, the Honourable Chairman of the Tribunal erred in law and facts for going against the principles of natural justice by denying the appellants right to be heard as they were not served with summons to appear and time to file WSD as they were directed by the law. 2. That, the Honourable Chairman tribunal erred in law and facts for failure to interpret properly the Order of the High Court of Tanzania at Shinyanga dated on 26, November, 2019 hence unfair ruling was delivered. They therefore prayed to this court to allow this appeal with costs, to quash and set aside the ruling of Maswa District land and housing tribunal and order the case to be heard on merit. 3 When the matter was called for hearing, it was argued by way of written submissions, whereas the appellants enjoyed a legal service of Mr. Timotheus Mophath Sullusi, learned advocate and the respondent was represented by Geofrey M. Tuli advocate. Submitting in support of his grounds of appeal, the appellant's counsel argued on the submitted grounds that, as per the orders dated on the ruling of Misc Land Application No 24/2017 it was ordered that, the matter in Land Application No. 74/2014 to be retried before the trial tribunal as the law directs. Subsequently, at the Tribunal, the learned Chairman denied the appellants the right to be heard as they were again not served with the summons. Later on, they were surprised by the eviction order and after a follow up to the tribunal, they were informed that, the matter was heard against them. They filled Misc. Land application No. 66/2023 praying to the Tribunal to set aside the ex-parte judgment for the reasons that, they were not dully served with the summons hence failed to appear and enter their defence but their application was dismissed due to the reasons that, the ruling in Misc. Land Application No. 24/2017 ordered the matter be heard without their presence as they did not file WSD, thus the trial Tribunal was wrong as the order stated that, “ the matter 4 is remitted before the trial tribunal to be reheard with in terms of what the law directs” Additionally, he submitted, that the trial tribunal erred to proceed to entertain the matter with improper procedure. He refers this court to the provisions of Order VIII Rule 14 of the CPC that, “Where any party required to file a written statement of defence fails to do so within the specified period or where such period has been extended in accordance with sub rule 3 of rule 1, within the period of such extension, the court shall, upon proof of service and on oral application by the plaintiff to proceed ex part, fix the date for hearing the plaintiff’s evidence on the claim.” Once more, he refers this court on Page 2 of the Trial proceedings where the Chairman observed that, only one respondent has been served with the summons but others, including the appellants were not dully served and also there was no proof of summons to them and the tribunal did not consider it and opted to proceed with the matter. He refers this to the case of Caritas Kigoma Versus K.G. Dewsi Ltd, Civil Appeal No. 47 of 2004 TZCA at Mwanza. 5 He added that, the Chairman stated on the second paragraph in the file of land Application No 76 of 2014 that there are summons which show that the appellants were served and received the same thus it contradicts with the proceedings at Page no 2. Again, he submitted that, despite the appellants being stating several times that, they were never served with the summons the Chairman did not consider it. He therefore prays this appeal be allowed with costs. On his replying submissions, the counsel for the respondent argued on ground number one that, the claim by the appellant that they were not served with the summons is not true since the trial proceedings at Page. 10 shows that, the 1st appellant was aware of the matter that is why he appeared and testify. Again, he referred this Court to the decision in Misc. Land Application No. 24 of 2017 before Mkeha J. to be cleared when noted that “…… neither did the respondent’s file their respective written statement of defence on the subsequent dates. However, the chairperson proceeded according to chance to the respondents to make defence whereas they had 6 failed to file their respective written statement of defence …….” It is then, from the respondent that, the allegations that Misc. Land Application No 24/2017 was wrong interpreted by the Trial Chairman does not suffice since it was clear that, the case to be handled ex parte. He also refers this court to the provision of Order 14 (1) by starting that the Honourable Judge use it to make its decision thereto. Further to that, he contended that, the claims by the appellants that they were denied their right to be heard was not true since the law is not a bush of dumping every fault committed by parties in suit hence the first ground in meritless. With the second ground, the counsel for the respondent submitted that, the claim by the appellant does not sound. Again, the issue of extension of time as suggested by the appellant, he submitted that, the tribunal does not put automatic truck to parties but to address it or apply for it. He cemented his claim by referring this court to the case of Faustini Mundikaya Versus Charles Faustin and Another, Land Appeal No. 03 of 2015, HC, Land Division at Shinyanga, Pg 9 that; “…… the tribunal may extend within which to file WSD. leave has to be sought 21 days after expiry of the initial 21 7 days. It is clear that extension is not automatic, then leave has to be sought and a good cause have to be given to extension…...” Therefore, the trial tribunal was obeying what has been ordered in Misc Land Application No. 24 of 2017, and not as was suggested by the appellants as it was shown on page 3 of their submissions that“ ….. therefore the tribunal was expected to start by extending time and serve again the application so that they can reply to it by preparing WSD as required …..” Finally, he argued that, there are some issues the appellants failed to establish on how the Tribunal wrongly interpreted the order made by the High Court of Tanzania at Shinyanga dated on 26th day of November, 2019 hence unfair ruling and also the appellants had failed to connect the ground with what they were trying to convince this court, thus the appellants failed to establish good grounds and cause to fault the decision of the trial tribunal accordingly this appeal need to be dismissed for want of merit. Resting his submissions, the counsel from the appellants insisted on what they have submitted and stated further that, the appellants were never served with the summons and even the application itself was 8 not served to them. Again, he succumbed that, the submissions by the counsel for the respondent contradicts itself at the 2nd Page paragraph 1. Similarly, they don’t understand which court and proceedings the respondent is referring to, as he failed to properly address the appellants as some of them who were respondents in Land Application No. 16 of 2015 did not appeal to any decision regarding this matter at hand. Yet again, the records from the tribunal shows that, not all the respondents were served with summons but only the 2nd respondent and the tribunal did not get approval as to whether other respondents were dully served and proceed with the matter exparte. He insisted that, if the chairman pronounced the case to be conducted exparte, he was expected to withdraw his orders after being satisfied by the reasons as to why the defendants failed to file their WSD and extend time for them. He bold his arguments by referring this court to the provisions of Regulation 7(3) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations 2003, which provides for the procedures in the tribunal instead of order VII Rule 14 of the CPC, as claimed by the respondent in his submissions, to the effect that, “The Chairman may, in good cause being shown by any party to the proceedings extend time within which to file 9 the written statement of defence or counter claim as the case may be…….” He therefore insisted that, the regulations require a party who failed to file WSD to be given a chance to do so. Again, even if the order given in Misc. Land Application No 24 of 2017 aimed to allow the court to proceed with the matter ex parte, before doing so, the tribunal was supposed to be satisfied that, the defendant was dully served with the summons and failed to file WSD, hence it was the tribunal who failed to follow the proper procedure when entertaining the matter. I have systematically crossed though the trial tribunal records on the evidence given, and the arguments by both parties at the appeal level, and the issue for consideration is whether this appeal has been brought with sufficient cause. With the grounds submitted by the appellant who complained that, the trial Tribunal Chairman erred to deny the appellants right to be heard as they were either not issued with summons to appear nor supplied with the application for filling WSD hence denying their right to be heard, this was replied negative by the counsel for the respondent that summons was dully served to the appellants but failed to enter appearance. 10 From the above, this court made a thoroughly perusal of the trial proceedings preferably after this court had delivered its order dated on 26/11/2019 by Mkeha, Judge in Misc. Land Application No. 24 of 2017 when make a review on the judgment, orders and decree in Land appeal No 16/2015 before Makani Judge, gave the following directions that, “I, for the foregoing reasons vacate this court’s judgment dated 21 July 2017. I, in its place, make an order quashing the trial tribunal’s proceedings. The resultant, judgment, decree and orders are set aside. The matter is remitted before the tribunal to be reheard and dealt with in terms of what the law directs.”(Emphasis added) It is from these findings by my brethren brother Mkeha, J come to that conclusion after he had been satisfied that, there were some procedural irregularities made by the trial tribunal preferably when hearing the matter that is why he also proceeded to vacate this court’s judgment dated 21 July 2017, which arises from Land application No. 76 of 2014. In Misc. Land Application No. 24 of 2017. My fellow Judge observed by writing at Page 2 that, “Upon carefully perusing the trial tribunal’s record, I have come to realise that the applicant’s complain is sound. At Pg. 2 of the typed 11 proceedings the Honourable Chairman observed that the 2ndrespondent had been served but failed to fail his Written Statement of Defence. The trial Chairperson added that, the other respondents had not been served at all. Neither did the respondents file their respective Written Statement of defence on a subsequent date. However, the Trial Chairperson proceeded according chance to the respondent to make defence whereas they had failed to file their Written Statement of Defence” It is from this sounding reasons which blessed my learned brother to reach into that conclusion after he had been observed that, the trial proceedings were not properly followed as the law under the provision of Order VIII Rule 14 (1) of The Civil Procedure Code Cap 33 R; E 2019, which directs that, 14.-(1) “Where any party required to file a written statement of defence fails to do so within the specified period or where such period has been extended in accordance with sub rule 3 of rule 1, within the period of such extension, the court shall, upon proof of service and 12 on oral application by the plaintiff to proceed ex part, fix the date for hearing the plaintiff’s evidence on the claim” This is because the honourable Judge observed that, the trial tribunal erred to hear the respondent while they did not file their written Statement of Defence hence though they appeared before the tribunal and enter their defence but it was infringement of the above provisions hence, he ordered the matter to be reheard. Consequently, the matter on 08/03/2023 started as it was ordered and the appellants were represented by Mr Masunga, learned advocate who on 26/06/2023 from Page. 3 – Page 4 addressed the tribunal that; Mr. Masunga; “shauri limekuja kusikilizwa na wajibu maombi wanatakiwa walete majibu yao. Hivyo naomba tarehe nyingine” Baraza; Kwa tafsiri yangu uamuzi wa mahakama kuu una maanisha kwamba shauri hili lisikilizwe upande mmoja. Mr. Masunga; Kutokana na maelekezo hayo ya mahakama kuu na kusudia kuweka pingamizi kwa kuwa wateja wangu wamekuwa barred na kama pingamizi litasikilizwa basi shauri lifutwe na kama 13 litakataliwa basi shauri litaendelea kwa maelekezo ya Mahakama Kuu. Baraza; kwa tafsiri yangu ni kuwa hata hiyo haki ya kuleta P.O kwa sasa haipo, kwa hali ilivyo kwa sasa ni mdai kuendelea na kesi yake. Mdai; Niko tayari Baraza; kesi ya mdai naanza ……………...” Thereafter the respondent gave his testimony and the tribunal entered a judgment against the appellants. Yet again, the appellants did not get tired they then filed Misc. Land Application No. 66 of 2023 to set aside the ex-parte judgment but the same was dismissed by the trial Tribunal. From these findings, this court is of the view that, this appeal has merit since the learned Chairman openly and intentionally without any sound reasons denied the appellants the right to be heard by wrongly misinterpreting the order of Judge Mkeha, by terming the word reheard to mean ex parte, while according to Oxford Collocation Dictionary to rehear (reheard) something to hear or consider a case again in court and ex-parte means A legal Latin phrase meaning 'in the 14 interests of one side only or of an interested outside party'. Source (googles). From this meaning this court is doubting on how could the trial Tribunal treat these two words to be the same while they are absolutely dissimilar. This is because since the whole proceedings were quashed that the make an order quashing the trial tribunal’s proceedings, and that the matter “…….to be reheard and dealt with in terms of what the law directs ……” the trial tribunal was entailed to start the matter afresh by hearing both parties since the whole proceedings were totally nullified and there is nowhere the orders state that the matter be heard ex- parte. Even if my learned brother Honourable Mkeha meant the matter to be heard ex parte,he could have been started in his orders and he could not nullify the whole proceedings but rather part of it preferable from where the irregularities started to emanate. This court is therefore having its view that to say that, the findings by the trial tribunal that, the matter was ordered to be heard exparte was against the principle of natural justice by denying their right to be heard since the orders does state so. This court directed its mind in the case of Abbas Sherally and another vs. Abdul Sultan Haji 15 Mohamed Fazalboy, (Civil Application No. 133 of 2002) [2005] TZCA 105 (17 November 2005) at Pg 8, the court had this to say; 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 the principles of natural justice. For example, in the case of General Medical Council v. Spackman, [1943] A.C. 627, Lord Wright said: -If principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision” That principle of the law was followed with approval by the Court of Appeal of Eastern Africa in the case Hypolito Cassiano De Souza v. Chairman and Members of The Tanga Town Council [1961] E.A. 377 and by this Court in D.P.P. v. I. Tesha and Another [1993] TLR 237. 16 In my conclusion, this court is of the view that, since the trial Chairman failed to properly exercise his duties by misdirects himself from the year 2014 when this dispute arose, I therefore allow this appeal by nullify the whole proceedings of the trial tribunal, quashing the Judgments, orders, and decree there to.I remit the case file to the District Land and Housing Tribunal for Maswa at Maswa District for trial de novo to mean (A trial de novo is a new trial on an entire case, where both questions of fact and issues of law are determined as if there had been no trial in the first) [Emphasis is mine], and before another Chairman and other set of assessors, and I order the same to be done expeditiously. No order as to costs regarding the nature of this appeal. It so ordered. DATED at SHINYANGA this 22nd day of April, 2024. R. B. Massam JUDGE 22/04/2024 17