Edward Asajenye Malango vs John's andongolile Mwakabela (Misc. Land Appication 103 of 2022) [2023] TZHC 16645 (29 March 2023)

Key Facts

Issues

• The applicant claims that the tribunal's proceedings were irregular due to conflicting evidence from PW1 and PW3 regarding plot ownership. Specifically, PW1 claimed plot 2585 while PW3 claimed plot 2595, which is the same plot asserted by the applicant. The court found the applicant's submissions on this point to be insufficient as they were not supported by the affidavit evidence.
• The applicant argues that the Commissioner for Land should have been joined as a necessary party because the surveyor's testimony pertained to the applicant's plot. The court acknowledged that non-joinder of a necessary party is a legal issue that can be raised at any stage and concluded that it merits the attention of the Court of Appeal. They referenced the case of Tanzania Railways Corporation vs GBP (T) Limited to support this point.
• The applicant contends that a letter from the Land Office permitting development of plot 2590 was accepted into evidence without objection but was not referenced in the tribunal's final judgment. The court noted that this omission was not addressed in the judgment but did not provide further analysis on its significance.
• The applicant submitted that the respondent's evidence contained contradictions which were central to the case. The court determined that this issue requires evaluation of evidence and can be addressed by the Court of Appeal. They cited the case of National Microfinance Bank Ltd vs Neema Akeyo to support the inclusion of such a question of law on appeal.

Holdings

• The third ground (contradictions in the respondent's evidence) was upheld as a valid question of law. The court ruled that the Court of Appeal could address whether the Tribunal properly evaluated evidence, referencing precedents on failure to evaluate evidence as a grounds for appeal.
• The court determined that the non-joinder of the Commissioner for Land raised a serious legal question. While the necessity of joining the Commissioner could not be resolved at this stage, the issue was deemed significant enough to warrant Court of Appeal review, citing the duty of courts to ensure complete adjudication.
• The first ground of the application (irregularities in Tribunal proceedings) was rejected. The court found the applicant's submissions lacked evidentiary support, as they were based on counsel's statements rather than the affidavit, which was insufficient to establish procedural flaws.
• The court granted the applicant leave to appeal to the Court of Appeal, finding the application meritorious. The decision was based on the presence of serious legal questions, including the non-joinder of the Commissioner for Land and the evaluation of contradictory evidence in the respondent's case.

Remedies

• The applicant was granted leave to appeal to the Court of Appeal against the High Court's decision in Land Appeal No. 47 of 2022. The court found the application meritorious based on legal grounds including irregularities in tribunal proceedings, non-joinder of necessary parties, and contradictions in the respondent's evidence.
• The ruling specifies that costs shall abide the results of the intended appeal to the Court of Appeal. This means the court will determine cost allocation after the appeal is resolved.

Legal Principles

• Courts have a duty to proactively join necessary parties to facilitate complete adjudication. This principle was highlighted in Tanzania Railways Corporation vs GBP (T) Limited, stating decisions excluding such parties may be set aside on appeal.
• Failure to evaluate evidence by a tribunal constitutes a question of law on appeal. This was reinforced by National Microfinance Bank Ltd vs Neema Akeyo and a Kenyan case, defining a 'question of law' as a tribunal's failure to assess evidence properly or reach legally sound conclusions.
• Leave to appeal is granted if the intended appeal on prima facie has merits, factual or legal. This was established in cases like Henry Julius Nyela Sauda Mtunguja Rajabu and Wambele Mtumwa Shahame vs Asha Juma, where courts emphasized the need for serious judicial consideration of arguable grounds.

Precedent Name

• Gatirau Peter Munya vs Dickson Mwenda Kithinji & Three Others
• Jane Kasambala vs National Bank of Commerce Limited
• Tanzania Railways Corporation (TRC) vs GBP (T) Limited
• Leonard Peter vs Joseph Mabao & 2 Others
• Henry Julius Nyela Sauda Mtunguja Rajabu
• National Microfinance Bank Ltd (NMB) vs Neema Akeyo
• Wambele Mtumwa Shahame vs Asha Juma

Cited Statute

Judge Name

Passage Text

• The question that the respondent's evidence had contradiction requires evaluation of evidence which as it can now be dealt by the Court of Appeal.
• Non-joinder of a necessary party in my view is a serious question that merits the attention of the Court of Appeal.
• The first ground is tested negatively.