20140917 TZHC Iringa3

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IN THE HIGH COURT OF TANZANIA [LAND DIVISION] ~AT IRINGA MISCELLANEOUS LAND CASE APPEAL NO. 17 OF 2010 (From the decision of the District Land arid Housirig Tribunal of . Iringa District at Iringa in Land Case Appeal No. 3 of ~010 and Original Ward Tribunal of Mkwawa Ward in Case No. MK/ 13 of 2009) VITUS KASIKE ................ APPELLANT

VERSUS ELIZABETH NINDI ........ RESPONDENT 31/7/2014 & 17/9/2014

JUDGMENT MADAM SHANGALI, J. The appellant Vitus Kasike has filed this appeal intending to challenge the decision of the District Land and Housing Tribunal · _ for Iringa (DLHT) in Misc. Application No. 3 of 2010 originating from Mkwawa Ward Tribunal Land Case No. 13/2009. Before Mkwawa Ward Tribunal the appellant was sued by the present ., responden_t ELIZABETH NINDI 'for tres.passing, occupying arid 1 ,,., erectin~-}~)building on ·her pi~ce of land. On 20 / 11 / 2009 the appellant appeared before the trial Ward Tribunal and clai1ned that he was not the owner of the alleged piece of larid but a n1ere •· witness because the land was entrusted to him by one Mama Sambagi. When the case was fixed for hearing before the \A.Tard Tribunal neither the appellant nor Mama Sambagi appeared despite several efforts by the Ward Tri_bunal to summon them. As a result the matter was heard exparte and the suit premises/land was declared the property of the respondent on 11/12/2009. Later on the respondent filed Misc. Application No. 3/2010 before the Iringa District Land and Housing Tribunal seeking for execution of the decree of the trial Ward Tribunal in Land Case No. 13/2009. In that application the appellant who appeareq-as an objector raised several issues regarding to the other pending cases/appeals between Mama Sambagi and the respondent but the District Land and Housing Tribunal rejected

the objection and granted the application for execut_ion as prayed. Dissatisfied with that decision, the appellant has now filed this appeal based on four grounds of appeal namely; 1. That the learned Chairman erred in law in allowing one EDGAR NINDI, - who was not a .party to the proceedings, to conduct the matter which . was· 2 ... • • }~ ':. :··_,£:.• · -~ ,.i..,.·. . - ,..... " • ..,. • "4 - . before him · and finally come up ·w1.th a · final decision . .

2. That the learned Chairman and the Mkwawa Ward Tribunal .erred in law iri entertaining a matter touching on a dispute where the real contending parties are ELIZABETH NINDI, MAMA SAMBAGI · and ALEX KASIKE; VITUS KASIKE is just being dragged in.a dispute which does not concern him.

3. That the learned Chairman grossly erred in taking judicial notice of the judgement of the High Court between ELIZABETH NINDI and MAMA SAMBAGI which ·said judg~ment is _peing contested before the 1-iigh Qourt by MAMA SAMBAGL 4. A copy of the ruling/ judgement of the District Land and Housing Tribunal was supplied to the appellant on 25/06/2010. The provision of Section 3_8 of the land Disputes Courts Act, Cap. 216 R.E. 2002 ate hereby complied with. In this appeal the appellant was represented by Mr. Kingwe learned advocate while the respondent wa~ represented by the late Mr. Mkwata plld the matter was l?,ter taken oyer by Mr. Zuberi Ngoda learned'_ .adv9cate. ~ On ··_the- requ_est of both--· ·-"' . ,1••, .• ~ : ... ~ I.'. . (::.:• •. ,•t • ,••. . \ '1 advocates the appeal was argued by way of written submission: 3 record of proceedings and decisions of the lower tribunals, I have · disGovered that this is a very interesting appeal succumbed to unnecessary protracted arguments by the appellant. The record of proceedings of the trial Ward Tribunal indicate that the . decision in execution against the appellant was given exparte on 11/12/2009. The appellant never attempted to set it aside and instead he appeared as an objector in the execution proceedings ·hence appellant. Be as it may, the first ground ·of appeal has no merit whatsoever. Section 13 (1) of the Land Di'spute

Co'LJ.rts (The District Land and Housing Tribunaij Regulations, .2002 provide; ( 1) The parties to the proceedings may during the hearing of proceedings be represented by an advocate ~ or any other representative. (Emphasize mine). The record of proceedings of the lower tribunal is clear that Edgar Nindi was -duly appointed and granted Special Power of Attorney to represent the respondent on -6 th April, 2010 and that document is vividly appearing in the District Land and Housing Tribu.nal case file. 4 t~~:~i,~i;,~ ·.. < ~:-~; ~~·~"'~-·, < :-::.. ·; ·.: ... --'." .. ' . !: ;;, -t·. - On the second ·ground of appeal the ·appellant who was not a party in the hearing and detennination of land Case No. . . 13/2009 before ·Mkwawa_ Ward ' Tribunal is merely .attempting to. drag this court to the issues which were determined and resolved in that case against hini. If the appellant concedes and admit ~-- that the land in dispute is not his property and that he was a mere supervisor of the construction and that he was supposed to be a mere witness, why is he prolonging this matter by filing this unnecessary appeal. In my considered opinion having lost the case before the trial Ward Tribunal the appellant should have - surrenden~d the piece of land in dispute to tli.e execution process and leave the matter to be contested by the so called real owners. The fact that the appellant was

declared a looser before the trial Ward Tribunal means that the execution must be carried against him. The appellant has been dragging other people in his case against the respondent in order to create confusion and prolong the matter for no ·apparent reason. The decision of the trial Ward Tribunal was against him and the same should be executed against him. The second ground of appeal has no merit at all. Regarding to the third ground of appeal the appellant have no justification to complain against the District Land and Housing Tribunal to take judicial notice of the Juclgement of the High Court between the respondent and Mama Sambagi because the alleged judgement and the pending appeal· before the High Court have nothing to dp with the app.~pant's ~vi.9ti9n from the 5 · ;,['", :? · > ·. · · · · ·cc·': ?!'r ·. '· _.'''"f'l'f~~,~'! -: ·~--·.·•~!. ·. ~- :·.: . .' .. • • • .. . ... ',·· '::• ' • , ·. ·... ✓- . . . . ' ·';!;:• • •• '·.· ,.. :_•~;•,:(~~!·.ff.\};::>.:,~ .c>'.~:; r· ~--- .• •:•:.·,,•.~~,i_'.~.:~.-~•.'._f.i~,:;,\(·_,/,'1<,.:_,·, ~ ~~ ~-~ .. ..; .. ::.,: ·•' •'~_},,•:.t:. • . ,,-: ; ,. ·-- ' -· ,-.,- . ,-,~'., ':' .. . ·;:t(\~t~·);l;:}f~ -.:· .· /:'~;; ,·. . · .. :··. _,.·,.,;~i'.:::··· ··. .· · - . •. :.;:~·:_- ·~J:>/ -/~ land in dispute:·: The ·:alleged judgement and pe_nding appeal is _a· - : -~:c·• .. ~ matter between the respondent and Mama·: s·ambagi . and

that·. I should be treated separately and. determined or{ its own merits. I took pain to call and peruse the alleged pending· matter Misc. Land Case Application No. 23/2010 between Mama Sambag(an·d Elizabeth·-;Nindi and discovered that it !s a separate case which ,. •" ~ • I started before Ilala Ward. Tribunal at Iringa in 2007 between the respondent and the said Mama Sambagi over the same piece of land in dispute .. · In my considered opinion that matter has nothing special to do with the present execution proceedings against the appellant. In any case the said pending case is the correct venue for the . . . determination of tp.e ownership of the said piece of land as between the respondent and mama Sambagi. The present appeal and execution process is against the appellant personally. The fact is that the respondent~ for one reason· or another opted to sue the appellant and Mama Sambagi separately. Therefore the third ground of appeal equally crumbles. The 'fourth ground of appeal 1s totally misplaced and misconceived. -The issue of prescribed time limit for filing appeal and its mode of computation was adequately raised and d_iscussed b~fore· this very court in a preliminary objection filed by the respondent. That p_reliminary objection 'Yas resolved in · 6 : :. -; '¥,{~v,:; _ ,._' " _ --9'' favour of the· appellant in the ruling delivered on 29 / 11 / 20.13. I am perplexed-

to see the 1earn:ed advocates raising it again .at this stage.· \7'lith due tespect to the learned advocates, I see no reason - to waste time on that issue. · It is a dead issue with no merit at all. In conclusion, the appellant has simply filed this appeal without any sufficient cause of complaint. All his grounds of appeal have no merits. The decision of the District Land and •· . Housing Tribunal is hereby upheld and the appeal is dismissed - __in its entirety with costs. ""Execution against the appellant should . proceed as ordered. M. S. SHANGALI

JUDGE 17/9/2014 Judgement delivered today in the presence of Mr. Kingwe learned advocate for the appellant and Mr. Kenyunko Edward learned advocate for the responderit. M. S. SHANGALI JUDGE · 17 /9 /20·14 7 . . 1o.. ,~-: -:.41 •; -.. - • - ·:. . _ • ...!r