Jacob Lemanya vs Village Chairman Hombolo Makulu Village & Another (Land Appeal 36 of 2016) [2016] TZHC 2058 (6 December 2016)

IN THE HIGH COURT OF TANZANIA AT D O D O M A LAND APPEAL NO. 36 OF 2016 (From the Decision of the District Land and Housing Tribunal of_ Dodoma District at Dodoma in Land Application No. 55 of 2016) JACOB LEMANYA .................... APPELLANT ‘ VERSUS 1.THE VILLAGE CHAIRMAN HOMBOLO MAKULU VILLAGE 2, REGISTERED TRUSTEES OF CATHOLIC DIOCESE OF DODOMA. JUDGMENT 10/11/2016 & 06/12/20 f 6 SEHEL, J, This is a judgment on an ap p eal filed by the appellant against the ruling of the District Land and Housing Tribunal for Dodoma at Dodom a District in Land Application No. 55 of 2016 that dismissed the'appellant's application. The facts of the case that g ave rise to the present appeal can be canvassed that-the appellant, an administrator of the estates of his iate father, instituted a suit in his own nam e against the respondents. The respondents through their ad vo cate , Mr. N yab iri-^ 1st RESPONDENT 2ndRESPONDENT

raised a preliminary objection that the 1st respondent, the village Chairm an of Hombolo Makulu village is not a legal entity ca p a b le for being sued, so the application is incom petent. The trial Tribunal upheld the objection. Apart from upholding the preliminary objection, the Honourable Chairm an also considered two more issues that were not raised by any party. The a c t of the Honourable Chairm an in posing issues in his decision without giving parties right of being heard,' caused grievances to the appellant. In one of his five grounds of ap p eal he com plained that they w ere not given right of being heard. As this ground is sufficient to dispose of this ap p eal I shall not dwell on other grounds. Mr. M achibva, learned a d v o ca te for the appellant argued that the Honourable Chairm an raised the issues of time limitation and locus of the appellant in his ruling without giving parties the opportunity of being heard. On this Ms. Gabriel, learned a d v o ca te I for the respondents said it was proper -since the issues raised have merit. From the parties’ submissions, it is not in dispute that the Honourable Chairm an who heard the dispute raised two issues when he was composing the ruling and parties were &ot given a right of being heard. The Court of A ppeal of Tanzania has held' time and again that a denial of the right to be heard in any proceeding would ’ vitiate the proceedings. See for exam ple, ECO-TECf^ 2

(Zanzibar) Limited vs Government, of Zanzibar, ZNZ Civil Application No. 1 of 2007 (unreported); Abbas Sheraliy & Another vs Abdul S. H. A A . Fazalboy - Civil Application No 33 of 2002 (unreported); and Mbeya-Rukwa Auto Parts & Transport Limited vs Jestina George Mwakyoma- Civil A ppeal No. 45. of 2Q00 (unreported) just to mention a few. Referring to the right to be heard as enshrined in the Constitution the Court of Appeal of Tanzania in the Mbeya- Rukwa case (supra) held; “In this country natural justice is not merely a principle of com m on law; it has b e c o m e a fundamental constitutional right. Article 13 (6) (a) includes the right to b e heard amongst 1 he'attributes of equality before .the law and declares in part: (a) Wakafi haki na v/ojibu wa mtu yeyofe vinohitaji kufanyiwa uamuzi na Mahakama au c h o m b o kinginecho kmachohusika, basi mfu huyo atakuwa na haki ya kupewa fursa ya kusikifizwa kwa ukamilifu. ” Further in the case of Abbas Sheraliy (Supra) the Court of Appeal of Tanzania held; “The right of a party to b e heard before adverse action is taken against such party has b een stated and em phasized by the couris in numerous decisions. That right is so basic that a decision which is arrived at in violation of it will b e nullified , even if the sam e decision would have b een re a c h e d had the party .

b e e n heard, b e c a u s e the violation is considered to b e cj b rea ch of natural justice. ” ! ! ! As indicated earlier, parties were not invited to address th 4 | Honourable Chairm an on the issues of time limitation and locus i standi. Therefore, the parties were denied the right to be heard ori

• » l the questions raised and I am satisfied that in the circum stances of i this ca se the denial of the right to be heard on the question of time bar and iocus standi vitiated the whole ruling and drawn order of th$ District Land and Housing Tribunal. I find merit in this ap p eal which I accordingly allow by declaring the ruling of the District Land and Housing Tribunal dated 22nd d ay of M arch, 2016 and its drawn order as null and void..I proceed to quasln i i and set them aside, i further make an order that the case b& remitted to the District Land and Housing Tribunal and be heard by. another set of Tribunal members and they shall proceed from the I proceedings of 2nd d ay of March, 2016 when the matter was set down for ruling. Should the new Tribunal members consider thct there is need to look into the questions of limitation of time and lo cis standi then they should invite the parties to address it on the issues. Since the ap p eal is allowed on legal technicality, I m ake no order to costs as the mistake was o ccasioned by the District Land and Housing Tribunal. It is so ordered.

DATED at Dodoma this 06th d ay of Decem ber, 2016. B.M.A Sehel JUDGE Judgm ent, delivered at Dodoma, under my. hand and seal of the court, this 06th d ay of Decem ber, 2016 in the presence of Ms. Gabriel, a d v o c a te holding brief for Mr. M achibya , a d v o ca te for the appellant and Ms. Gabriel, a d vo cate for the respondents. B.M.A Sehel JUDGE 06th December, 2016. 5