zephrin rutakyamirwa mpambo vs hamad shuliza 3 others 2023 tzhc 23378 30 november 2023

IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF BUKOBA) AT BUKOBA LAND APPEAL No. 30 OF 2023 (Originating from Land Application No. 26 of2022 in the District Land and Housing Tribunal for Muieba at Muieba) ZE PH RIN RUTAKYAMIRWA M PAM BO.................... APPELLANT VERSUS HAMAD SHULIZA........................................... .. 1st RESPONDENT GERALD DOMITIAN......... .................................2nd RESPONDENT PROTAZE DAUDI........... ................................... 3rd RESPONDENT JOSEPH PANCRAS.....................................................................4thRESPONDENT JUDGMENT 31st October & 30th November 2023 OTARU, J.: At the District Land and Housing Tribunal for Muieba at Muieba (DLHT), the Appellant Zephrin Rutakyamirwa Mpambo filed Application No. 26 of 2022 against the respondents Hamad Shuliza, Gerald Domitian, Protaze Daudi and Joseph Pancras alleging them of selling trees from his land situate at Omurukindo, Nyamutundu Area in Buhangaza Village within Muieba District. The respondents raised four points of Preliminary Objection. One which was sustained by the chairman (point No. 3) who consequently dismissed the Application with costs. Aggrieved, the Appellant filed this Appeal based on the following grounds;- 1. That the District Tribunal erred in law and fact to raise suo motu a matter ofjurisdiction on ground 3 abandoned by the Respondents during the hearing thus denying the Appellant i the right to be heard, causing the whole judgment to be fatal. 2. That the District tribunal erred in law and facts not to consider Applicant's, now Appellant's submission during the hearing of the Preliminary Objection on grounds 1, 2 and 4, also not composed into the ruling. 3. That the District trial tribunal erred in law and facts to allow the costs to the respondents who fall to prosecute grounds 1, 2 and 4 by abandoning ground 3 causing the ruling to be below the required standard. 4. That the trial District Tribunal erred in law and facts by showing biasness against Applicant now the Appellant for not considering the submission made by the Appellant in the Tribunal. When the matter was scheduled for hearing, parties prayed for the matter to be disposed of by way of written submissions. A schedule was agreed and complied with. The Appellant's submissions were drafted by Mr. Samwel Kiula, learned Advocate, while the Respondents drafted theirs. Through the learned Advocate, the appellant argued the 1st ground separately and combined 2nd, 3rd and 4th grounds. He started by arguing that the trial tribunal decided the matter basing on the respondents' abandoned ground that the cause of action was not disclosed, he thus argued that the appellant was denied the right to be heard under Article 13(6)(a) of the Constitution of the United Republic of Tanzania of 1977, as amended from time to time. He also cited the cases of Wegesa Joseph M. Nyamaisa 2 v. Chacha Muhogo, Civil Appeal No. 161 of 2016 (CAT Mza) (unreported) and Mbeya Rukwa Autoparts and Transport Ltd v. Jestina George Mwakyoma [2003] TLR 251 that;­ ' natural justice is not merely a principle of common law, it has become a fundamental Constitutional right under Article 13(6)(a) includes the right to be heard among the attribute of equality before the law.' ° On the rest of the grounds, Counsel did not agree with the trial finding that the cause of action was not disclosed. He referred the court to paragraph 6 of the Application which he stated had clearly indicated that the respondents were in the process ofselling the appellant's trees. Counsel argued further that, if the cause of action is not disclosed, the remedy is to reject the pleading and not dismiss it. To support his contention, counsel cited the case of John Byombalirwa v. Agency Maritime International (T) Ltd [1983] TLR 1. On the part of the Respondents, they supported the trial decision and were adamant that same is based on one of the points of objection raised by them and never abandoned. That, the parties had equal opportunity to address the tribunal on the point, which they did, even if not intensely. The Respondents added that the trial Chairman, after observing that the cause of action as per Q the Application was criminal in nature, held that the tribunal had no jurisdiction to hear the matter. The jurisdiction of the court is to deal with issues of land ownership as provided for under section 4 of the Land Disputes Courts Act (Cap. 216 R.E. 2019). 3 The Respondents distinguished the case of Wegesa Joseph (supra) claiming different circumstances pertaining in the two cases. In the cited case, the trial judge did not decide the case in accordance with the issues raised by the parties, instead she raised a new issue suo motu. The court had jurisdiction to deal with the matter, which is not the case here. They therefore prayed for the Appeal to be dismissed with costs. Having heard the parties, perused the case file as well as the relevant law, I find that the question for determination before this court is, whether the appeal has merits or otherwise. It is not in dispute that the matter was not decided on merits. It was decided on a point of objection. I am in agreement with the appellant that the right to be heard is crucial and consequences of denying it is to nullify the decision reached in violation of this right. The same has as well been held in the case of Abbas Sherally & Another v Abdul Sultan Haji Mohamed Fazaboy, Civil Application No. 33 of 2002 (CAT Dsm) (unreported), that:- 'the right of 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 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 naturaljustice. '■ In the case at hand, the respondents raised four points of objection at the trial and argued them jointly, without mentioning which of the grounds they 4 were arguing. Neither is it on record that any of the points were abandoned. Thus, on the 1st ground of appeal, I support the position as raised by the respondents that none of the parties were denied the right to be heard. The point upon which the trial Tribunal based its decision reads as follows;­ ' that the application lacks the legal basis and misconceived for failure to disclose the cause of action, thus abuse of the court process.' The trial chairman agreed with the point basing on the cause of action disclosed in paragraph 6(i) of the Application, which reads as follows;- 'That on 25th April 2022, all Respondents collaborated and entered into suit land, put charters on my calibean trees while putting sign on bulk to identify the sold trees among other amounting to 350 using machete forpurpose to sell the same to 1st Respondent without my consent, the proper owner of the purported trees.' The trial tribunal had interpreted the paragraph as not disclosing the cause of action. In my view the cause of action is disclosed. However, the disclosed cause of action is criminal in nature, which falls outside the jurisdiction of the trial tribunal. By virtue of section 3 of Land Disputes Courts Act (supra), the District Land and Housing Tribunal has jurisdiction to determine land disputes or complaints of civil nature only. Any proceedings of criminal nature under the Land Act (Cap. 113 R.E. 2019) and the Village Land Act (Cap. 114 R.E. 2019) fall under the Jurisdiction of the magistrates' courts 5 established under the Magistrates7 Courts Act (section 4 of the Land Disputes Courts Act (supra)). Therefore, as per the disclosed cause of action, the Tribunal had no jurisdiction to determine the matter. I am in agreement with the learned Advocate for the appellant that the trial chairman was wrong to dismiss the application. As explained earlier, I am of the view that the cause of action was disclosed, and the trial chairman observed it and even stated that the dispute before him was criminal in nature. That is why, he held that he did not have jurisdiction to determine the dispute of criminal nature. As the matter was not determined on merits for lack of jurisdiction, the trial chairman had no mandate of dismissing it. Consequently, I find the appeal to be meritorious. It is hereby allowed. The decision of the trial tribunal is quashed and set aside. The order of Dismissal in Land Application No. 26 of 2022 at the District Land and Housing Tribunal for Muleba at Muleba is hereby quashed and set aside, the same is substituted with an order to strike it out. Each party is to bear own costs. DATED at BUKOBA this 30th day of November, 2023. . M.P. Otaru Judge 6