IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(IRINGA SUB REGISTRY)

AT IRINGA

MISC. LAND APPLICATION NO. 15 OF 2022

(Original Application No. 104/2021 of the District Land and Housing Tribunal for Iringa at

Iringa before Hon. A. J. Majengo - Chairman)

ERASTO NGAILO ..................................................... APPLICANT

VERSUS
BLASTUS ALLEN MGIMWA ..................................................... RESPONDENT
RULING

29th May & 30th May, 2023

I.C. MUGETA, J:

Regulation 10 of the Land Disputes Courts (The District Land and

Housing Tribunal) Regulations, 2003 - G.N 174/2003 (the Regulations)

provides:-

"10-(l) The Tribunal may at the first hearing

receive documents which were not
annexed to the pleadings without
necessarily following the practice and
procedures under the Civil Procedure
Code, 1966 or the Evidence Act, 1967 as
regards documents.
(2) Notwithstanding sub-regulation (1) the
Tribunal, may, at any stage of the

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 proceedings before the conclusion of
hearing allow any party to the proceeding
to produce any material documents which
were not annexed or produced earlier at
the hearing.
(3) The Tribunal shall before admitting any
document under sub regulation (2) -
(a) Ensure that a copy of the document is
served to the other party.
(b) Have regard to the authenticity of the
documents.
On 1/3/2022, the applicant testified at the tribunal as SU1. He

sought to tender a sale agreement which was not annexed to the Written

Statement of Defence. However, it had been filed in court as part of the list

of additional documents on 25/2/2022 and filing fees paid on 28/2/2022.

Unfortunately, up to the hearing date, the copy thereof had not been

served to the respondent. Counsel for the respondent objected to its

admission under rule 10(3)(a) of the Regulations. The learned Tribunal

Chairman upheld the objection, hence, this application. The learned

Tribunal Chairman held that the applicant violated rule 10(3)(a) of the

Regulations.

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 Dr. Ashery Utamwa for the applicant has argued that The chairman

misdirected himself as it was upon him to ensure that the documents are

served to the other party upon a request under Regulation 10(2).

Eneles Kitta, learned advocate for the respondent hold a different

view. She supported the decision of the chairman on account of failure by

the respondent to serve the document to the other party.

In rendering his decision, besides applying on Regulation 10(3)(a) of

the Regulations, the learned Chairman also relied on the holding in the

case of Puma Energy Tanzania Ltd V. Spec - Check Enterprises Ltd,

Commercial Case No. 19 of 2014, High Court - Commercial Division - Dar

es Salaam (unreported) which held that documents cannot be admitted

where they have not been served to the other party.

I agree with the learned chairman that the adverse party deserves

prior notice of the document before it is admitted. However, he misdirected

himself to rely on cases where the law applicable was the Civil Procedure

Code (CPC) and not the Regulations. The Regulation bars strict reliance on

the CPC in adjudicating land disputes, therefore, the case of Puma

Energy is distinguishable as its principle is based on the Civil Procedure

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Code. The application of the principle stated in that case in land disputes

has been relaxed by Regulation 10 of the Regulations.

I understand that the relaxed conditions on admission of documents

under rule 10 of the Regulations are exercised at the discretion of the

Tribunal Chairman. Therefore, the chairman can refuse to admit a

document that was not served to the other party prior to the hearing.

However, that discretion must be exercised judiciously because there are

good reasons for disapplying the CPC in land disputes. One of them is

deciding disputes on merits without too much reliance on strict rules of

procedure. The purpose is to avoid failure of justice on technical reasons.

In this case the applicant filed the document in court before the

hearing and it was, indeed, not served to the other party. Upon a request

to use such document in evidence under Regulation 10 and objection

raised, the learned chairperson was duty bound to decide the objection on

the basis of the provision of Regulation 10(2) not Regulation 10(3). The

only condition for consideration under Regulation 10(2) is whether the trial

has been concluded. If the answer is in the positive, then the document

would be time barred on its admissibility. In this case the answer was in

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the negative. Once the answer is in the negative, the duty to ensure

service shifts to the Tribunal Chairman per Regulation 10(3). Unfortunately,

the learned chairman is not happy with the duty imposed on him. As a

result he had this to say:

"MawakHi wakiwa Maafisa wa Mahakama/Baraza

wanatakiwa kujua wajibu wao kuhusu kubadiiishana
nyaraka zinazotegemewa katika kesi husika Hi
matakwa ya sheria yatimizwe. Siyo wajibu wa
baraza hili kuanza kuagiza nyaraka fuiani
igawiwe kwa wadaawa."(msisitizo ni wangu).
I have already held that Regulation 10 is aimed to ensuring that

justice is not defeated for technical errors. Whoever entrust with a duty to

enforce it must comply with the conditions therein however distasteful it

may be. Therefore, it was an error for the Tribunal Chairman to reject the

document for a reason that it had not been served to the respondent by

the applicant.

For the foregoing, I find merits in the application. I allow it. I quash

the decision rejecting admission of the document. Since the trial had not

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been closed, I direct the tribunal chairman to order its service to the other

party and to admit it if it is authentic. Costs of the case to be in the course.

I.C. MUGETA

JUDGE

30/5/2023

Court: Ruling delivered in chambers in the presence of the parties and

Eneles Kitta, advocate for the respondent also holding brief for

Dr. Ashery Utamwa, advocate for the applicant.

Sgd. I.C. MUGETA

JUDGE

30/5/2023

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