20131011 TZHC Iringa

IN THE HIGH COURT OF TANZANIA [LAND DIVISION]

ATIRINGA MISCELLANEOUS LAND CASE APPEAL NO. 10 OF 2012 (From the decision of the District Land and Housing Tribunal of Njombe District at Njorribe in Land Case Appeal No. 58 of 2011 and Original Ward Tribunal of Mjimwema Ward in Application No. 11 of 2011) ABDALLAH NGIMBUDZI ............ APPELLANT

VERSUS MELIDA MWOGOFI ............... RESPONDENT (Date of last Order 4.9.20-12 Date of Judgement 11.10.2012) .

JUDGEMENT KIHIO, J., This 1s a second appeal. The appellant, Abdala Ngimbudzi unsuccessfully sued the respondent, Melida Mwogofi in Mji mwema Ward Tribunal over the disputed one acre piece of land. He appealed to the District Land and Housing Tribunal but his appeal was not successful. 1 He is now before this court in this appeal. This-1s--as1~ __ ,___ _ say, a second appeal. _The appellant filed a Petition of Appeal containing three grounds of appeal, namely:- - 1. That the District Land and Ho1:1sing Tribunal erred the strong evidence given by the appellant as proper in relation to administration of estate of the deceased.

2. That the learned District Land and Housing Tribunal erred in law and fact by not recognizing that the ·documentary evidence · produced by the respondent was forgery document so long it doesn't have even ·signature of the sellers of that land.

3. That the District Land and Housing Tribunal failed to determine that transfer of Land need prove by more than one person, but in the respondent's document no witness shown both parties, the owner of that land and the purchaser. The appellant appears in person while the respondent is represented by Mr. Fred Kalonga, learned Counsel. The appellant submitted that the disputed land was belonging to his late father. He further submitted that there 2 I ·. ·--.-~-;;;: ··- . was strong evidence . 1n the Ward Tribunal that he was the administrator of the estate of his late father. He contended • that there was his (appellant's} evidence and that of his (appellant's} / sisters I 1n the Ward Tribunal. He further contended that the witness, Beatus Misulile gave testimony that the respondent hired the disputed land from his (appellant's} father while the other witnesse~ ~ave testimony that the respondent's husband bought the said land from his (appellant's} father. He argued that the District Land and Housing Tribunal erred in law because it upheld the decision of the Ward Tribunal when there was no sufficient evidence on the respondent's side. Mr. Fred Kalonga resisted the first ground of appeal by submitting that the appellant did not produce any document in the Ward Tribunal that he was the administrator of the estate of his (appellant's} late father. He further submitted that there

is no truth that the appellant was the administrator of the estate of his (appellant's} late father. He argued that under Section 71 of the Probate and Administration of Estates Act, Cap. 345 R.E. 2002 the appellant had no powers to sue the respondent because he had no lette!"s of appointment . issued to him in respect of his late father's estate. As for the second ground of appeal he submitted that the document produced in the Ward Tribunal was tendered by Naft~li Mwinuka who established that he (Nafteli Mwinuka) 3 . --- ~- -- ----~-----~- . ~ was the one who purchased the disputed land__frc5m _ th_e____ - - ----- ----- - appellant's late father. He further submitted that the District Land and Housing Tribunal found that the appellant had sued a wrong party. He contended that Nafteli Mwinuka was not sued in respect of the disputed land. He further contended that the second ground of appeal has no merit. . As regards the third ground of appeal he submitted that three witnesses signed on the sale agreement in respect of the disputed land. He further submitted that the owner of the sold disputed land .was the appellant's late father, Keneth Ngimbudzi and the purchaser was the respondent's husband, Nafteli Mwinuka. He contended that Chaser Mwaisule (DW.3) was one of the witnesses who signed the sale agreement in respect of the disp-q.ted land. I cannot go into the merit of the

appeal because the proceedings in the Ward Tribunal were fatal and a nullity. First of all, the Ward Tribunal's proceedings clearly show that the members who constituted the Ward Tribunal during trial were not indicated. Under Section 11 of the Land Disputes Court Act, Cap. 216 R.E. 2002 the Land Ward Tribunal should consist not less than four no more than eight members of whom three should be women. 4 As the members who constituted the Ward Tribunal are not indicated in the purported .Ward Tribunal's proceedings it ~ is obvious that the. trial Ward Tribunal was not properly constituted and the proceedings were a nullity. Secondly, the Ward Tribunal's purported proceedings dated 10.6.2011 show that the appellant and his witness, Elizabeth Ngimbudzi (PW.2) gave testimony in the Ward Tribunal. Although the members who c6nstituted the Ward Tribunal were not indicated, as already indicated, but the purported proceedings show that the appellant was cross- examined by one Chaula and the Chairman. Elizabeth Ngimbudzi (PW.2) was cross-examined by one Fungo and the Chairman only. The purported Ward Tribunal's judgement dated 8.7.20.11 shows that one Rhoida Ngimbudzi (PW.3), the respondent, one Beatus Lisulile (DW.2) and one Chasamu Lisulile (DW.3) gave testimony but the Ward Tribunal's proceedings do not show that the said witnesses ever testified in the tribunal. As the evidence of

Rhoida Ngimbudzi (PW.3), the - respondent, Beatus Lisulile (DW.2) and Chasamu Lisulile (DW.3) is not recorded in the Ward Tribunal's proceedings, the said Ward Tribunal's proceedings are incurably fatal and in fact, the irregularity has occasioned injustice. 5 - Thh~dfy,'-tlie purporlea.· ward Tribunal's judgement-date-a - - - - - - - ~ - - - 8.7.2011 indicates that the members of the Ward Tribunal gave opinions and the saidjudgement relied on the opinions of the members but the Ward Tribunal's proceedings do not show that there were any opinions of tribunal's members given. Surely, the judgement of the Ward T:i;-ibunal relied on opinions which do not exist and so the Ward Tribunal's decision is a nullity. As the proceedings in the Ward Tribunal and the decision thereon were a nullity the decision of the District Land and Housing Tribunal was also a nullity as it emanates from proceedings which are a nullity. From the foregoing demonstrations the whole Ward Tribunal proceedings and the District Land . and Housing Tribunal's decision and orders thereto are quashed. The parties should bear their respective costs. J~ s.s.s. KIHIO -

JUDGE 11.10.2013 Court:- Judgment delivered 1n the presence of the appellant 6 and Mr. Fred Kalonga, learned Counsel for the· • respondent. .J~ S.S.S. KiHIO

JUDGE 11.10.2013 7