CIVIL APPEAL NO 231 OF 2024

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCO RAM: LILA. 3.A.. KIHWELO. J.A. And ISSA. J.A.T CIVIL APPEAL NO. 231 OF 2024 Y. P. INVESTMENT CO. LIMITED.............................................APPELLANT VERSUS PHILBERT MAHENDA........................................................1st RESPONDENT FAUSTIN MASEBU............................................................ 2nd RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Mwanza) (Mqevekwa. 3.) dated the 18th day of November, 2020 in Land Appeal No. 72 of 2019 JUDGMENT OF THE COURT 10th & 21st February, 2025 KIHWELO. J.A.: The appellant, Y.P Investment Co. Ltd, seeks the reversal of the decision of the High Court of Tanzania, Mgeyekwa, J. (as she then was) in Land Appeal No. 72 of 2019 which partly allowed the respondents' appeal against the decision of the District Land and Housing Tribunal for Mwanza in Land Application No. 77 of 2015 (the Tribunal) that was decided in favour of the appellant. Crucially, the first appellate Judge quashed the judgement of the Tribunal and ordered the matter to be placed before another Chairperson to visit the locus in quo to clear doubts or ambiguity and assess the situation on the ground and proceed to compose judgment. The facts of this appeal are quite simple and straight forward but in order to appreciate the issues in contention, we find it apt to begin with a very brief background. Before the Tribunal the appellant lodged a complaint against the respondents for the following reliefs: "(a) A declaration that the respondents have trespassedinto andhave illegally entered upon a part o f the applicant's land known as Nyanza Fishing and Processing Plot Ilemela, Mwanza prescribed in the Certificate o f Title No. 22703. (b) An eviction order against the respondents and or their agents or assigns or workmen from a part o f the applicant's land known as Nyanza Fishing and Processing Plot Ilemela, Mwanza prescribed in the Certificate o f Title No. 22703 and delivery o f vacant possession o f the said land to the applicant or its agents. (c) Permanent injunction against the respondents, their agents and workmen restraining them from entering into, trespassing, carrying on construction o f a fence or any activities o f whatever nature on a part o f the applicant's land known as Nyanza Fishing and Processing Plot Ilemela, Mwanza prescribed in the Certificate o f Title No. 22703. (d) An order requiring the respondents to demolish the fence which have been constructed by them on the suit premises. (e) Payment o f Tshs. 5,000,000.00 Generaldamages for trespass and unlawful construction o f the fence on the applicant's granted right o foccupancy. (f) Costs and (g) Any other orders the Tribunal may deem fit and just to grant" The essence of the appellant's claim before the Tribunal as can be gleaned from the record is that, historically the land which later came to be known as Nyanza Fishing and Processing Plot Ilemela, Mwanza and prescribed under the Certificate of Title No. 22703 was lawfully owned by the Bahindi Chiefdom and related chiefdoms and was utilized as a burial site for their chiefs. It later occurred that, the clan transferred part of that land to the government for industrial purposes to which Nyanza Fishing and Processing was built, and that land was registered with a Certificate of Title No. 22703 (the suit premise). Subsequently, and through an agreement executed on 10th February, 1977 the graves of the Bahindi Chiefdom and related chiefdoms were removed and shifted somewhere but within the nearby vicinity. Sometimes on 23rd August, 2002 the appellant purchased the suit premise from Tannol Holdings Ltd and was in peaceful and uninterrupted occupation until 2015 when the respondents as representatives of the chiefdom were alleged by the appellant to have trespassed into the suit premise and erected fencing poles on the part of the suit premise. The conduct of the respondents is alleged to have interfered with the appellant's peaceful enjoyment of the suit premise by denying access to that part of the land. On their part, the respondents stoutly resisted the application and in the contrary they also alleged that the appellant had trespassed into the piece of land which was not transferred to the appellant by the government in 2002. As a result, the respondents prayed for payment of general damages to the tune of Tshs. 20,000,000.00 among others. Upon full trial the Tribunal in a unanimous decision found out that the appellant proved the case to the required standard showing that it was the lawful owner of the suit premise and the respondents were mere trespassers and therefore, it granted the application with costs. Dissatisfied, the respondents approached the High Court armed with six grounds of appeal challenging the decision of the Tribunal. After listening to the parties, the first appellate Judge partly allowed the respondents' appeal as hinted above. This is what precipitated the present appeal before us. The appellant has filed this appeal which is grounded upon six (6) points of grievance. One; the High Court erred in entertaining and determining the appeal in the absence of exhibits tendered before the Tribunal. Two; the High Court erred in determining the issue of assessors' opinion not being reflected in the proceedings without affording parties an opportunity to be heard. Three; the High Court erred for holding that the trial proceedings did not contain the opinion of assessors. Four; the High Court erred for holding that the opinion of the assessors were not recorded as required by the law. Five; the High Court erred in holding that the Tribunal was required to visit the locus in qua, and six, the High Court erred in making an order to the effect that the matter be placed before another chairman to visit the locus in quo and proceed to compose judgment. When we heard the appeal on 10th February, 2025, Mr. Faustin Anton Malongo, learned counsel, stood for the appellant while the respondents were represented by Mr. Deocles Rutahindurwa who was assisted by Mr. Magusu Mugoka both learned counsel. Mr. Malongo prayed to adopt the written submissions which were lodged earlier on in terms of rule 106 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). We hasten to remark that, in the course of this Judgment, we will not be able to recite each and every fact comprised in the submissions but we can only allude to those which are conveniently relevant to the determination of the matter before us. Addressing us on the first ground of appeal, Mr. Malongo contended that before the Tribunal, parties tendered exhibits which formed part of the record of proceedings. Elaborating, he argued that, the appellant tendered a certificate of title number 22703 which was admitted in evidence and marked exhibit PEI, while the respondents tendered minutes of the clan meeting, exhibit DEI as well as various letters which were admitted in evidence and marked exhibits DE2, DE3 and DE4 respectively. Illustrating further, the learned counsel argued that, the respondents collected their exhibits on 26th November, 2019 while the appellant collected its exhibit upon request vide a letter dated 5th March, 2020 and the appeal was lodged on 5th December, 2019 which is nine (9) days from the date the respondents collected their exhibits on 26th November, 2019. In this regard, he argued that when the High Court was hearing and determining the appeal, exhibits were not part of the original records despite the fact that these were crucial documents in determining the rights of the parties. He took the view that, it was prejudicial for the High Court to determine the appeal without exhibits and therefore implored on us to allow the appeal. For the respondents, Mr. Rutahindurwa strongly disagreed with his fellow learned counsel. At first, he contended that the impugned decision was arrived at without any reliance to exhibits but rather based upon matters of law, particularly, the issue of assessors' opinion and visit of the locus in quo. Accordingly, he urged us to find that the exhibits were on record as stated by the first appellate Judge at page 328 of the record of appeal. We have examined the record of appeal and considered the contending submissions of the learned trained minds. To begin with, we feel it apt to recapitulate that, none of the parties raised the issue of exhibits not being part of the original record when the matter was placed before the High Court and throughout the proceedings on appeal. That being the case, we cannot therefore, completely render a decision on that issue which was never raised and decided by the High Court. It bears reaffirming that, the mandate of this Court is, in terms of section 4(1) of the Appellate Jurisdiction Act, Cap. 141 (the AJA) limited to matters raised and decided by the High Court. Put simply, this ground is immature before us. It is also evident on record that the first appellate Judge in her Judgement at page 328 of the record of appeal by implication acknowledged in passing about the existence of exhibits on record. For clarity, we wish to let record of appeal at page 328 speak itself: "I am In accord with the learned counsel for the appellant that with the evidence on record, documents tendered In court, nature, and circumstance o f the case which involves the issue o f boundaries It was important for the trial court (sic) to visit the locus in quo before issuing the orders." It follows from the above that, apart from referring to the documents tendered before the Tribunal the first appellate Judge did not refer anywhere to exhibits which were part of the original record nor did she use them in the outcome of the impugned decision. A cursory scrutiny of the original record of appeal we have been unable to locate any exhibits that were tendered before the Tribunal. As to the way forward, we shall, at a later stage of our judgment, revert to this disquieting aspect of the proceeding below to determine its consequences. Arguing the second ground of appeal whose complaint is on the issue of assessors'opinion which was raised and determined without neither leave of the court nor affording opportunity to the parties to address the court before its determination, Mr. Malongo contended that, the respondents' counsel while arguing the fourth ground of appeal raised a completely new ground that the opinion of assessors were not reflected anywhere in the proceedings. However, this was not part of the fourth ground of appeal which related to erroneous inclusion of the name of Mama Juma as one of the assessors in the Tribunal's judgment. The learned counsel was of the view that, in considering and making finding on that issue the first appellate Judge erred in relying on the ground which was not raised in the memorandum of appeal and without leave of the court. He further argued that, the first appellate Judge did not afford parties the opportunity to be heard on the issue which is erroneous and cited to us Order XXXIX rule 2 of the Civil Procedure Code, Cap. 33 (the CPC) to fortify his argument. Reliance was also placed in the case of Kumbwandumi Ndemfoo Ndossi v. Mtei Bus Service Limited (Civil Appeal No. 257 of 2018) [2018] TZCA 23 (19 February 2021) for the proposition that cases must be decided on the issue or grounds of appeal on record and where the court desires to decide the matter on a new issue or ground not taken by the parties, then parties must be given an opportunity to be heard failure of which the proceedings become nullity. As to the consequences that should befell the anomaly pointed out above, the learned counsel submitted that, the appeal be allowed and the judgment of the High Court be reversed and set aside and the respondents be ordered to pay costs. Mr. Rutahindurwa had an opposing view, in his considered opinion, he argued that the appellant had an opportunity to respond to the complaint that the opinion of assessors were not reflected anywhere in the proceedings since that complaint was raised in the written submissions by the respondents. Admittedly, he contended that the respondents did not raise it in the memorandum of appeal nor were they granted leave of the court to do so. In his view this ground has no merit and therefore should be dismissed. We have carefully examined the rival submission by the parties and we think it is useful that we predicate our deliberation by starting with the provisions of Order XXXIX rule 2 of the CPC which states thus: "The appellant shall not, except by leave o f the Court, urge or be heard In support o f any ground o f objection not set forth in the memorandum o f appeal; but the Court in deciding the appeal, shall not be confined to the grounds o fobjection set forth in the memorandum o f appeal or taken by leave o f the court under this rule: Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity o f contesting the case on that ground." Certainly, the provisions above empower the Judge on appeal to raise any matter suo motu. However, under the proviso to that rule the Judge is enjoined to give the parties an opportunity to be heard on that issue before resting his decision, failure of which it will amount to contravening rules of natural justice. With respect, we are constrained to decline the energetic argument by the learned counsel for the respondents as we are decidedly of the settled view that parties were not afforded an opportunity to be heard before the first appellate Judge resting her decision. It seems to us that the first appellate Judge did not comply to the provisions of rule 2 of Order XXXIX of the CPC. She admittedly observed that the issue of assessors' opinion not being reflected in the court proceedings was not featured in the grounds of appeal and therefore it was fatal. The first appellate Judge was of the view, and rightly so in our considered opinion that, the court cannot justifiably close its eyes in case there is a glaring anomaly even if that anomaly has not been raised in the memorandum of appeal. However, quite surprising and for an obscure cause the first appellate Judge went ahead to determine that matter without inviting the appellant to address on it. This is contrary to the requirements of the law as we have always emphasized. One that particular case is the case of Raza Somji v. Amina Salum [1993] T.L.R. 208 in which we emphasized the need for judges to invite parties to address the court, upon raising an issue suo motu before resting its decision in the spirit of the right to be heard in line with rules of natural justice. Time and again courts have emphasized that, the right to be heard is a fundamental principle of natural justice which should be observed in the administration of justice. Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977 provides: "When the rights and duties o fanyperson are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right o f appeal or other legal remedy against the decision o f the court or other agency concerned." We are firmly of the view that, a denial of the right to be heard in any administration of justice vitiates the entire proceedings and ultimately makes it nullity. We took similar stance in the case of Abbas Sherally and Another v. Abdul S.H.M Fazalboy, Civil Application No. 33 of 2002 (unreported) we observed that: "The right o f a party to be heard before adverse action is taken against such party has been stated and emphasized by courts in numerous decisions. That right is so basic that a decision which is arrived at in violation o f it w ill 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 o fnaturaljustice." The logical conclusion drawn from the above, is that, the High Court did not comply to the dictates of the rules of natural justice and therefore, the impugned proceedings and the subsequent judgment fell far below the required standard and for that reason, it was not a proceeding known in law. It was a nullity. Whilst we unhesitatingly accept the nullification of the entire proceedings of the High Court, we have pondered over the learned counsel invitation to allow the appeal, reverse and set aside the judgment of the High Court. We should interpose here and observe that the first appellate Judge nullified the proceedings and quashed the judgment of the Tribunal and ordered the matter to be placed before another chairman to visit the locus in quo and compose judgment which in our view is not tenable. Having nullified the entire proceedings and set aside the judgment, the Tribunal will remain with nothing upon which to rely in composing the said judgment upon visiting the locus in quo. It follows therefore, that, the totality of the above disquieting aspects we are inclined to invoke our revisional powers under section 4 (2) of the AJA and nullify the proceedings and judgment of the High Court. Having nullified the impugned judgment and its proceedings we remit the record to the High Court so that parties can be properly heard on all contentious matters in the appeal in accordance to the law. For avoidance of doubts, the proceedings and judgment of the High Court shall be presided by another Judge. Since this appeal can sufficiently be disposed of within the narrow circumference of the second ground, it will be hypothetical and merely an academic exercise to deliberate on the remainder of the grounds. The appeal is therefore allowed, but given the circumstances of this case, each party to bear own costs. DATED at MWANZA this 20th day of February, 2025. S. A. LILA JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 21st day of February, 2025 in presence of Mr. Imani Mfuru, learned counsel for the appellant and also holding brief for Mr. Deocles Rutahindurwa, learned counsel for the Respondents is hereby certified as a true copy of the original.