WEREMA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA LAND APPEAL NO. 000012739 OF 2024 (Arising from a decision of the District Land and Housing Tribunal for Tarime in Wise. Application No. 158 of2023) BETWEEN WEREMA MARWA WANKOGERE....................................................... APPELLANT AND MSETI MARWA WANKOGERE.......................................................RESPONDENT JUDGEMENT OF THE COURT 20/01/2025 & 18/02/2025 Kafanabo, J.: This is a judgment in respect of an appeal arising from a decision of the District Land and Housing Tribunal for Tarime at Tarime (Mahelele, M.S.), (hereinafter referred to as the Tribunal) in Application No. 158 of 2023, dated 15/12/2023. A brief background of the matter is that the Applicant herein filed Application No. 128 of 2023 against the Respondent claiming to be declared a lawful owner of the disputed land located in Magoto Village, at Nyanswega Hamlet in the Tarime District. However, the said application was dismissed for want of prosecution on 21/09/2023. Being dissatisfied with the order of the Tribunal dismissing the application, the Appellant preferred an application for restoration of the i dismissed application vide Miscellaneous Land Application No. 158 of 2023 which was also dismissed on 15/12/2023 for want of sufficient cause. The Appellant, undeterred, filed the present appeal challenging the decision of the Tribunal refusing to restore the dismissed application. The petition of appeal before the Court sets forth two grounds of appeal whose substance is as follows: 1. The trial Chairman misdirected himself for failure to notice that there were sufficient grounds on record for restoration of Application No. 128 of 2023 before the trial Tribunal. 2. The trial Chairman was biased to rely on the counter-affidavit of the Respondent to reject the Appellant's grounds for restoration of Application No. 128 of 2023 which resulted in a miscarriage of justice to the Appellant. At the hearing, Mr. Cosmas Tuthuru, a learned Advocate, entered an appearance for the Applicant and the Respondent fended for himself. The Court invited the parties to address their respective cases as regards the appeal. At the driving seat was Mr. Cosmas Tuthuru who, at the outset, made it clear that he would argue the two grounds of appeal together. In support of the appeal, the learned advocate submitted that the Chairman of the Tribunal misdirected himself in not restoring Application No. 128 of 2023 because the affidavits in support of the application for restoration demonstrated sufficient cause. The affidavits of the Applicant and his spouse showed that the Applicant and his spouse were in Bunda on 20-21 2 September 2023 attending a wedding ceremony of their daughter. Therefore, since the Appellant was unable to attend the Tribunal's session on 21/09/2023, he asked his spouse to go and attend the proceedings of the Tribunal and the said Appellant's spouse proved that he went to the Tribunal. The learned counsel dismissed the averments of the Respondent contained in his counter affidavit that he did not see the Appellant's wife at the Tribunal, but he saw the Appellant at the Tribunal on the said day when the matter was set for hearing. It was submitted that the Respondent was lying under oath and his Counter affidavit should not have been relied upon, citing the case of Bashir Ally v. Nyegile Andendekisye Mamaluka and Three Others, Civil Appeal No. 49 of 2023. The Appellant's learned counsel also submitted that the Chairman of the Tribunal was supposed to consider Regulation 15 of the Land Disputes Courts (District Land and Housing Tribunal Regulations) G.N. No. 174/2003 (hereinafter referred to as the 'DLHT Regulations') before dismissing the Application because the Appellant failed to appear in Court once and thus the application was not supposed to be dismissed by the Tribunal. He prayed that the appeal be allowed with costs. Responding to the Appellant's submission, the Respondent submitted that the Applicant lied under oath, and the Advocate's submission in Court was hearsay because he was not at the Tribunal on the said day, and on 21/09/2023 the Appellant was personally present in the Tribunal and did not send his wife as alleged. Also on 21/09/2023, there was no wedding at the Appellant's home. Moreover, it was submitted that if the Applicant's wife 3 went to the Tribunal she should have heard the matter called and thus should have attended the Tribunal's proceedings. The Respondent further submitted that since the commencement of this dispute in 2019, the Appellant has been a hurdle to the determination of cases in Court. This is the second time he has come to this Court requesting for restoration of the case because he has not been attending Court where required. The Respondent prayed for the dismissal of the Appeal. In rejoinder submissions Mr. Tuthuru reiterated his submission in chief and added that the wedding was not at the Appellant's home at Tarime, it was in Bunda and Bariadi districts. After considering the parties' submissions this court is now called upon to determine the appeal in light of the submissions made and the law. The major reason advanced by the Applicant for failure to attend the Tribunal on the fateful day was his attendance at his daughter's wedding at Bunda and thus his wife attended the Tribunal, facts which had been strenuously disputed by the Respondent. However, this Court chooses to commence with the issue raised by the Appellant's counsel in the submission that the Tribunal dismissed Application No. 128 of 2023 without considering the provisions of regulation 15 of the DLHT Regulations because the Appellant failed to appear in the Tribunal only once but his application was dismissed. Even though the said issue was not initially part of the grounds of appeal, this Court is of the view that it is a vital legal point and the parties were particularly required to address the 4 same, especially the Respondent, when he entered appearance before this Court on 18/02/2025. The Appellant had already addressed the same in his submissions in support of the appeal, and thus his submissions sufficiently covered the said point. The Respondent submitted that he stands with his earlier submissions taking into account the fact that he is not knowledgeable in law. He further submitted that the Appellant was present at the Tribunal on the day the matter was called for hearing. Given the additional submissions on the point raised distinct from the grounds of appeal, this Court proceeds to determine the appeal in light of the initial and additional submissions. For ease of reference regulation 15 of the DLHT Regulations provides as follows: "The Tribunal may, where the Application is left unattended by the Applicant for a period of three months- (a) Dismiss the application for want ofprosecution; or (b) where part of the facts or claim are admitted, make such orders as may be appropriate in respect of admitted facts or claim." In light of the above provision, the application before the Tribunal can only be dismissed for want of prosecution if it has been left unattended by the Applicant for three months and not otherwise. The Application being left unattended may mean twofold, one the applicant does not enter appearance in the Tribunal either personally or by an advocate, or enters appearance for the said period but for one reason or another is reluctant to prosecute the application. 5 Reverting to the present case, the record of the Tribunal shows that the application was filed on 31/07/2023 and was dismissed on 21/09/2023 which is a period of one month and twenty-one days. Moreover, the period between the date of filing and the date of dismissal of the Application may not be important in light of regulation 15(a) of the DLHT Regulations which requires dismissal where the application is to be dismissed if it is left unattended for three months. Combing through the record of the Tribunal, it is indicated that on 31/07/2023 the Appellant entered Appearance and the matter was adjourned to 31/08/2023 when both parties attended. Then the matter was adjourned to 21/09/2023 when the Appellant defaulted appearance and the Tribunal proceeded dismissing the Application for want of prosecution. Counting from 31/08/2023 when the application was adjourned to 21/09/2023 when the same was dismissed it is a total of twenty-one days. This means if the application was left unattended, it was only for twenty-one (21) days and thus did not fall within the ambit of Regulation 15(a) of the DLHT Regulations to warrant the dismissal of the application. Given the above, it is undoubtedly clear that Application No. 128 of 2023 was unlawfully and erroneously dismissed by the Tribunal. It also follows that Miscellaneous Land Application No. 158 of 2023 should have been allowed and Application No. 128 of 2023 should have been restored. Therefore, Miscellaneous Land Application No. 158 of 2023 was also wrongly dismissed because, as rightly argued by Mr. Tuthuru, the Tribunal should have considered the provisions of Regulation 15(a) of the DHLT Regulation, 6 unfortunately, it did not, and thus the dismissal of the two applications occasioned a miscarriage of justice on the part of the Appellant. It is a view of this Court that the above-considered factors are sufficient to dispose of the appeal and thus will not determine other grounds of appeal as it will be of no practical value for the parties but for scholarly purposes. This Court, therefore, invokes the provisions of section 43(l)(b) of the Land Disputes Courts Act, Cap. 216 R.E. 2019, and in the exercise of revisionary powers vested upon this Court, hereby nullifies the entire proceedings of the Tribunal emanating from Miscellaneous Land Application No. 158 of 2023, and the ruling and order thereof are hereby quashed and set aside. Also, the dismissal order of Application No. 128 of 2023 is quashed and set aside for being unlawfully procured and Application No. 128 of 2023 is hereby restored. The record is thus remitted to the Tribunal which is ordered to hear and determine Application No. 128 of 2023 according to law, as soon as practicable. It is so ordered. Under the circumstances of this case, and given how the appeal has been determined, each party shall bear their costs. It is so ordered. The judgment was delivered in the presence of the Respondent and in the presence of the Respondent. K. I. Kafanabo Judge 18/02/2025 8