adam ndomba vs emilian ndomba others 2016 tzhc 2186 21 april 2016

AT SONGEA LAND CASE APPEAL NO. 1 OF 2016 (Arising from the decision of the District Land and Housing Tribunal of Mbinga in Land Appeal No. 53 of 2015, Originating from Utiri Ward Tribunal in Land Case No. 12 of 2015) ADAM NDOMBA.............................. ......... APPELLANT Versus EMILIAN NDOMBA......................... .^RESPONDENT GIDO NDUNGURO.......................... 2nd RESPONDENT VICENT NDUNGURU...................... 3rd RESPONDENT JUDGMENT ( EXPARTE) Last Order: 6™ April, 2016 * Date of Judgment: 21st April, 2016 CHIKOYO, J. Originally, at the Ward Tribunal, the appellant being the complainant ft unsuccessfully sued the respondents alleging that the respondents have trespassed, into his -land measured four (4) acres. Following that decision, the appellant was dissatisfied, but he unsuccessfully appealed to the District Land and Housing .Tribunal against the decision of the Ward Tribunal. Again herein the appellant is dissatisfied, hence has preferred the second appeal; In this appeal, the appellant through the legal services of Mr. Waryuba, the learned Advocate has raised four grounds of appeal, however from the outset and upon my perusal of the court records and the grounds of appeal, will only deal with the first ground of appeal, since it can easily dispose off this appeal. This ground is to the effect that, the District Land » i and Housing Tribunal erred in l^w

and fact by upholding the decision of thg Ward Tribunal while the Ward Tribunal was not properly composed as far as the issue of members of the Ward Tribunal is concerned. Before I venture into the merit of this appeal, the facts leading to this i i i appeal are as follows; the appellant sued the respondents alleging that, his land measured four (4) acres valued at Tshs. 3,000,000/= had been trespassed by the respondents. The appellant alleged that in 2013, he was called in the clan meeting together with his young brother one RICHARD NDOMBA by the ^respondent who is the appellant's 'baba mdogo' where 4 I « * in that meeting that is when the appellant was given / allocated the land in dispute. On the other side, the 1st respondent strongly opposed the allegations that he had allocated the land in dispute to the appellant. •i « On 06/03/2016 when this appeal was called for hearing, it was only Mr. Waryuba the learned Advocate who appeared but the respondents did not appear even though they were duly served, thus Mr. Waryuba successfully prayed this appeal to proceed with hearing ex parte. Submitting on supporting the first ground of appeal, Mr. Waryuba argued that the Ward Tribunal was composed with five (5) members but only one member was a » woman, thus according to Mr. Waryuba this irregularity contravened section 11 of the Land Disputes Courts Act [Cap. 216 R.E 2002], which

requires the Ward Tribunal to be composed with not less than four (4) members and not more than eight (8) members of which three (3) * ^ members must be female. As to me I have gone through the entire court records as well as what has been submitted by Mr. Waryuba in this appeal, where I full agree with him that, at the entire hearing of the dispute in the Ward Tribunal there were only five (5) members who were VERMUND KUMBURU, AVELINA NCHIMBI, • « WERNER KOMBA, THOBIAS KAYUNGU and ROMWAD KOMBA, of which as per the names reflects, only AVELINA NCHIMBI was a female, and more so, the records do not reveal as to who was the Chairperson and the Secretary as the law requires. (See section 11 of the Land Disputes Courts Act (supra) and section 4 (1) and (2) of the Ward Tribunal Act [Cap. 206 R.E 2002]). For the sake of clarity, section 11 of Cap. 216 R.E 2002 states as follows; 1Each Tribunal shall consist o f not less than four nor more than eight members o f whom three shall be women who shall be elected by a Ward Committee as provided for under section 4 ■« ■* 4 o f the Ward Tribunal A ct.' [Emphasis is mine] * Having said so, since the word used in the abovesection isshall, obviously as far as section 53 (2) of theInterpretationof Laws Act •i [Cap. 1 R.E•* 2002] is concerned, it means that the function < so conferred must be performed accordingly. See; Ahmed Mabrouk and

Another Versus Rafiki Mohamed Sadik, Civil Reference No. 2 of 2005 (CAT- DSM) (Unreported). From the above stated reasons, I find the entire proceedings and judgment of the Utiri Ward Tribunal in Land Case No. 12 of 2015 are nullity hence I hereby order to be tried de novo. Since the 4 • District Land and Housing Tribunal for Mbinga at Mbinga in Land Appeal No. 53 of 2015 entertained a nullity proceedings and judgment, consequently its decision also is hereby quashed and set aside. The matter is ordered to be remitted at the Utiri Ward Tribunal for a retrial. This appeal is allowed with no order as to costs since the matter at hand had not been disposed on its merits, and also the parties involved herein are near relatives. It is so ordered.

JUDGE 21/04/2016 Judgment delivered, in chambers in the presence of Mr. Waryuba Learned Advocate for the appellant, the third respondent in person, and Mr. Chris Court Clerk, in the absence of the rest of the respondents, this 21st day of April, 2016.

JUDGE 21/04/2016 COURT: Right of appeal explained. <

JUDGE 21/04/2016 <