The Land and Housing Tribunal For in No. 180 of 2015)
The Land and Housing Tribunal For in No. 180 of 2015)
AT ARUSHA
VERSUS
JUDGMENT
ROBERT, J:-
The Appellant, Zebedayo Muyalei Laizer, filed an action at the District
Land and Housing Tribunal for Arusha seeking a declaratory order that the
1st and 2nd Respondent's action of demolishing a house located on the suit
eviction order against the third Respondent and costs of the case. At the
i
end of the case, the trial Tribunal dismissed the matter for lack of merit.
filed at the District Land and Housing Tribunal on 19/6/2017, reveals that,
in the year 2010 the Applicant bought a piece of land located at Mianzini,
any notice or order allowing her to take over the suit land unlawfully hired
the 2nd Respondent to evict the Appellant from the suit land and
the 1st and 2nd Respondents unlawfully and illegally proceeded to sell the
In the course of proceedings at the trial Tribunal, the 1st and 2nd
Defence within time as ordered by the trial Tribunal and therefore only the
Appellant and the 3rd Respondent were heard on the case. The 3rd
purchased the suit property from the first Respondent through the 2nd
emerged as the highest bidder. He stated that the Appellant's claims were
2
unfounded and prayed for the case to be dismissed. He also prayed for a
declaratory order that that the 3rd respondent is a lawful owner of the suit
land, the appellant herein to be ordered to vacate the suit land, pay
The trial Tribunal made a finding that on 6th of November, 2014 the
Appellant herein took loan of TZS 3,000,000/= from the first Respondent
and placed the suit land as security for the loan, the fact which he didn't
disclose in his pleading. Having failed to meet his obligation under the
Respondent sold the suit land in public auction to the 3rd Respondent. The
Court decided that there was no sufficient evidence to prove that the
appellant herein had repaid the loan which he admitted to have received
from the first Respondent. Hence, there was no reasonable cause to hold
that the sale of the suit land by the 1st and 2nd Respondents to the 3rd
Respondent was illegal. The case was therefore dismissed with costs.
Aggrieved, the Appellant filed a petition of appeal to this Court armed with
(1) That the trial Chairman erred in law and in fact not to consider the
3
(2) That the trial Chairman erred in law and in fact to ignore and not to
(3) That the trial Chairman erred in law and in fact not to enter default
judgment against the 1st and 2nd respondent who did not file their
by the parties and ordered by this Court. Parties in this suit were
counsel for the Appellant and 3rd Respondent respectively. The 1st and 2nd
submissions with the third ground of appeal which faults the trial Chairman
for failure to enter a default judgment against the 1st and 2nd Respondents
who did not file their Written Statements of Defence. He argued that, the
1st and 2nd Respondents having been served with the Appellants Amended
Courts (The District Land and Housing Tribunal) Regulations, 2003, G.N.
No. 174/2003.
4
He submitted further that, the cited Regulations do not provide for
invoke the provisions of the Civil Procedure Code specifically, Order VIII
Rule 14(1) and 16 as well as Order XV Rule 2 of the Civil Procedure Code.
the case, it was impossible to order for ex-parte proof against the
Respondents who failed to file their Written of Defence under Order VIII
Rule, 14(1) of the Civil Procedure Code, Cap. 33 R.E. (2019). Hence, the
Tribunal should have fixed a date for mediation under Order VIII Rule 16
sufficient to show that he was the rightful owner of the suit land without
evidence of the 1st Respondent who would have testified that the Appellant
defaulted to pay the loan and therefore breached the loan agreement.
5
In response, the learned counsel for the Respondent argued that, it is
true that the Land Disputes Courts (the District Land and Housing Tribunal)
his Written Statement of Defence but the answer to that is provided by the
Civil Procedure Code which carters for situations where other procedural
With regards to the question at hand, the learned counsel argued that
the Trial Tribunal could not order for the default Judgment under Order
VIII Rule 14 of the Civil Procedure Code, Cap. 33 (R.E. 2002) while there
was another party in the name of the 3rd Respondent who filed his Written
Statement of Defence and appeared to defend the suit. Hence, under the
thinks fit.
(R.E. 2002) which provides that, where there are more than one Defendant
and one or more of them appear and the others do not appear, the suit
shall proceed and the Court shall, at the time of pronouncing judgment,
make such order as it thinks fit with respect to the Defendants who do not
6
appear. He explained that, in the instant case the application was
circumstances, requires the matter to be fixed for hearing once the written
On the question that the evidence of the 1st Respondent was required
in order to establish that the Appellant defaulted to pay the loan and
therefore breached the loan agreement, the learned counsel argued that, it
was not the duty of the Respondents to prove ownership of the disputed
land but the duty of the Appellant herein. He argued that the burden of
proof lies on the party who alleges anything in his favour as required under
section 110 and 111 of the Law of Evidence Act, Cap. 6 (R.E.2002).
Coming to the 1st and 2nd grounds of appeal, the learned counsel for
7
failed to consider the Appellant's application and its annexures. He
maintained that, the Appellant does not dispute that he had a loan
agreement which he paid as agreed. The trial Tribunal should have made
attached to the application filed at the Tribunal which the Hon. Chairman
(1972) E.A. 223, 225; JERAJ Sharrif & Co VS Chotai Fancy Store (1960)
International (T) Ltd, Misc. Application No. 54 of 2019, H/C, Dar es salaam
counsel for the Respondent submitted that, the trial Chairman considered
come to his decision but he was not bound to decide based on the
8
whether the said annexure are relevant in the case at hand. He argued
that, this is witnessed at page 2 of the impugned judgment where the Hon.
Chairman cited the case of Abdallah Abass Najim vs Amin Ahmed Ali
(2006) TLR 55 that, "It is now settled that annexure to the pleading
with the attached annexure and found that the said application and its
the Appellant failed to consider that, the issue of loan agreement was not
in dispute, the Appellant was required to prove that he paid the said loan
judgment that:-
9
In a rejoinder, the learned counsel for the Appellant reiterated the
duty in this matter was to prove that the suit land belonged to him and not
Respondent as that was not one of the issues framed before the trial
Tribunal.
respective submissions.
determination is whether the trial Tribunal was at fault for not entering a
default judgment against the 1st and 2nd Respondents for failure to file their
amend the pleadings by writing the proper names of the 1st and 2nd
Defence. The trial Tribunal refused a prayer for extension of time to file the
io
amended written statement of defence and therefore only the Applicant
(Appellant herein) and the 3rd Respondent were heard on the case.
The Appellant's argument is that since the Land Disputes Courts (the
District Land and Housing Tribunal) Regulations, 2003 which prescribes the
practice and procedure governing the proceedings at the District Land and
Defence, the Tribunal should have invoked the provisions of the Civil
Procedure Code, Cap.33 (R.E.2019) specifically, Order VIII Rule 14(1) and
16 as well as Order XV Rule 2 and enter a default judgment against the 1st
It is not disputed that, the provisions of the Land Disputes Courts (the
District Land and Housing Tribunal) Regulations, 2003 are silent on the
agreed that under section 51 (2) of the Land Disputes Courts Act, the
provisions of the Civil Procedure Code are applicable at the District Land
it should also be noted that the 1st and 2nd Respondent's failure to file their
li
respective written statements of defence occurred in 2017 hence, the
applicable provisions are of the Civil Procedure Code, Cap. 33 (R.E. 2002)
Reading Order VIII, Rule 14 along with Order VIII, Rule 5 of the Civil
Procedure Code, Cap. 33 (R.E. 2002) it is clear that even though the Court
statement of defence, still the discretion of the Court has been preserved
to pass any other order as it may think fit under Order VIII, Rulel4 or the
Court may in its discretion require any particular fact mentioned in the
plaint to be proved as laid down in Order VIII, Rule 5 of the CPC. Order
VIII Rule 14(1) of the Civil Procedure Code, Cap. 33 (R.E.2002) reads as
fol lows:-
this Order and fails to present the same within time fixed by the
12
Order VIII, Rule 5 of the Civil Procedure Code, Cap. 33 (R.E.2002) provides
that:
Provided that the Court may in its discretion require any fact
It is evident from the facts of this case that the Appellant's claims are
largely connected to the ownership of the land in dispute which was sold to
the 3rd Respondent who had filed his written statement of defence and was
ready to proceed with the case. The Appellant prayed for eviction of the 3rd
possible for the trial Tribunal to grant a default judgment in respect of the
claims sought by the Appellant without proof of the said claims after
hearing of the 3rd Respondent's defence. Hence, the trial Chairman cannot
be faulted for using his discretion under the law to proceed with the
hearing of the case and decide on the Appellant's claims at the end of the
case.
13
The Appellant also faulted the trial Tribunal for not invoking the
(R.E.2019) and proceed with mediation between the Appellant and the 3rd
introduction of the new Rule 15 vide G.N. No. 381 of 2019. Since Order
circumstances of this case, the trial Tribunal was not required to proceed
with mediation as proposed by the learned counsel for the Appellant. The
and the reply (if any) thereto, or the last reply if there are more
Further to this, as rightly argued by the learned counsel for the 3rd
Respondent, the provisions of the Land Disputes Courts (the District Land
14
and Housing Tribunal) Regulations, 2003 which governs the proceedings at
the District Land and Housing Tribunal did not require the trial Chairman to
Chairman to fix the date of hearing once the written statement of defence
ground of appeal.
faulted the trial Tribunal for failure to consider the evidence adduced by
the Appellant and to ignore or not consider the annexure in the Appellant's
application. Proceedings of the trial Tribunal indicates that, the main issue
framed for determination of this case was whether sale of the suit land by
the 1st and 2nd Respondents to the 3rd Respondent was illegal and to what
The Appellant was the only witness in his case, although he did not
state in the pleadings that the disputed property was placed as security for
loan, he testified as PW1 and informed the Tribunal that, he was granted a
is
the loan but he was told he still owed the 1st Respondent TZS 1,030,000/=.
couldn't fail to repay the loan. He described the suit property as a house
of TZS 22,000,000/=and warned him that if he fail to repay the debt his
signed the letter on 22/6/2015. When he went to the 1st Respondent to get
his bank statement he was put under custody. He stated that he knows the
3rd Respondent as his neighbour who bought the disputed property from
the bank.
that the house was valued at TZS 18,000,000/=, he was asked to put it as
security and agreed with it. When he showed them the house he intended
to apply for a loan of TZS 16,000,000/=. His wife also signed on the
16
didn't know if the house was placed as security in the contract. That it was
evidence brought before him and his decision that there was no reasonable
cause for the Tribunal to hold that the sale of the suit land by the 1st and
2nd Respondents to the 3rd Respondent was illegal. The trial Tribunal was
right in its finding that the evidence adduced was not sufficient to establish
that the Appellant had repaid the loan which he admitted to have received
from the first Respondent after placing the disputed property as security
Further to this, the Appellant's argument that the trial Tribunal erred
is untenable. The annexures were not admitted by the Tribunal after being
objected by the learned counsel for the 3rd Respondent which means they
were not admitted in evidence and therefore they could not form the basis
17
On the basis of the analysis above, it is clear that the trial Tribunal
its decision. I therefore find no merit in the 1st and 2nd grounds of appeal.
It is so ordered.
18