land appeal no 7994 of 2024 scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 7994 OF 2024 (Appeal from the judgment of the District Land and Housing Tribunal of Kisarawe, dated 12th December 2024 in Land Appeal No. 28 of2022 originating from Land Case No. 05/2021 from KHuvya Ward Land Tribunal) ALLY MDOLI MVUNGI.......................................................... APPELLANT

VERSUS AZARIA KIMARO.................................................................. RESPONDENT

JUDGMENT 05/6/2024 & 25/6/2024 A. MSAFIRI, J. The appellant herein above being dissatisfied with the decision of the District Land and Housing Tribunal for Kisarawe (the District Tribunal) in Land Appeal No. 28 of 2022 which originated from Land Case No. 28 of 2022 before Kiluvya Ward Tribunal, has lodged this appeal advancing four (4) grounds of appeal as follows; 1. That, the trial tribunal erred in law and facts for failure to examine the evidence adduced by the applicant at the trial court.

2. That, the tribunal failed to ascertain and consider the right to be heard by failing to recall the applicant to appear to defend the matter. Alt 1 3. That, the tribunal erred in law and facts for failure to consider the value ofsubject matter and nature ofimprovement made at the suit ofpremise (sic) hence entertain the subject matter out ofpecuniary jurisdiction.

4. That, the trial tribunal erred in law and in facts for failure to consider the ratio of members before hearing the matter.

5. That, the trial tribunal erred in law and facts by including Ward Executive Officer as the member of the Tribunal in the case.

6. That, the trial tribunal erred in law and facts by allowing member of the tribunal to testify against the applicant. The appeal was heard by way of written submissions and the submissions in chief in support of the appeal was drawn and filed by the appellant himself while the reply submission by the respondent was also drawn by the respondent himself. Before determining the grounds of appeal, the brief background of the dispute is apposite. According to the records, this dispute originated from Shauri Na. KLY/BK/ 05/ 2021 at Kiluvya Ward Tribunal. Azaria Kimaro who is now the respondent instituted a dispute at the said Ward Tribunal (herein trial Tribunal) claiming that Ally Mdoli Mvungi who is now the appellant has encroached in the road area (path way) and built a foundation hence blocked the right of passage to the respondent and other road (path) users. The hearing was one sided as per the records of the trial Tribunal, the appellant refused to appear in Tribunal. On 2 11/5/2021 after hearing and visiting the locus in quo, the trial Tribunal declared the disputed area to be the roadway area and that the appellant has encroached the said roadway and that the appellant should demolish the foundation he has built on the road way. The appellant was aggrieved by the decision and lodged an appeal to the District Tribunal, the District Tribunal dismissed the appeal and upheld

the decision and order of the trial Tribunal. Again, dissatisfied, the appellant has lodged this current appeal. In his written submission in chief, the appellant consolidated the 1st and 6th grounds of appeals and submitted that the trial Tribunal failed to reevaluate the evidence hence reaching an unfair judgment. And this can be noted at page 1 of the typed proceedings. He averred that one Simon llrassa who was acting as a tribunal member testified at the locus in quo and also in the handwritten proceedings, Simon Urassa acted as a witness which is against the principle of natural justice. On the 2nd ground, the appellant submitted that he was never served with any summons to defend his interest and that he did not fault to attend and defend this matter at the lower Tribunal. That the records are silent on whether there was notice served to the appellant to inform him on the 3 matter at the trial Tribunal nor on the exparte hearing and judgment. That the appellate Tribunal proceeded without taking an account that the applicant was not served with any summons to appear at the trial Tribunal by the applicant. On the 3rd ground, the appellant submitted that the trial Tribunal did not have mandate to hear or entertain the proceedings which the amount of the property exceeds three million shillings as provided by the law. On the 4th ground, the appellant submitted that the law

requires that the number of members should not exceed eight while deciding land disputes. That the appellate court failed to consider the provision of Section 11 of the Land Disputes Courts Act Cap 216 which provides that the number of members is to be at least four but not more than eight and that at the trial Tribunal there were only two female members when the matter was scheduled and this is contrary to the law. On the 5th ground, the appellant argued that in the handwritten proceedings, it appears that one Jonathan Juma, a ward executive officer by then appeared at the trial Tribunal Coram which is contrary to the law. That this issue was raised at the first appellate Tribunal but the Tribunal did not go further to re-evaluate how the said ward executive officer appeared in the Coram. 4 The appellant prayed that the decision of the trial Tribunal and the appellate Tribunal be revised and set aside with costs. There was no rejoinder. The respondent replied very briefly and submitted that the six grounds raised by the appellant were amply clarified by the appellate Tribunal. He prayed for the dismissal of the appeal with costs. I shall determine the grounds of appeal as they were argued by the appellant in the submission in chief. On the consolidated 1st and 6th grounds, the appellant have failed to elaborate on how the trial Tribunal have failed to analyse the evidence. The

appellant has stated that this is shown at page 1 of the typed proceedings. I have read the whole page 1 of the typed proceedings of the trial Tribunal and have failed to detect how the trial Tribunal have failed to analyse the evidence. Since this is in the knowledge of the appellant himself and did not bother to elaborate to this court on this alleged error by the trial Tribunal, then I will disregard this 1st ground. On the 6th ground, the appellant has claimed that one Simon Urassa who was acting as a member of the Tribunal has testified as a witness during the visit at the suit premise and during the hearing. This was well elaborated and determined by the appellate Chairman at page 5 of the 5 appellate Tribunal judgment in which I wholly agree with his findings. I have also read the proceedings of the trial Tribunal and have seen that Simon Urassa was the witness but was not in the Coram which made the disputed decision and orders on 11/5/2021. On the 2nd ground, the appellant said that the Tribunal failed to consider the right to be heard by failing to call the applicant to appear to defend the matter. First, this is a new matter which is raised in the second appeal as it was not among the grounds of appeal tabled before the appellate Tribunal. Nevertheless, I have read the proceedings and it is shown that during the trial at the Ward Tribunal, the appellant then as the

respondent failed to enter appearance to defend the case against him despite the fact that he was served. It is in the records of the Ward Tribunal that the appellant was served on 13/4/2021 with a summons to appear to the Tribunal for trial on 20/4/2021. The summons is addressed to the appellant. In the proceedings, it was stated that the appellant was served three times and refused to appear hence the Tribunal proceeded on one side against the appellant. Indeed the appellant has a right to be heard as he has pointed out as the right to be heard is constitutional. However the right to be heard goes hand by hand with an obligation to appear in court so as to exercise your right to be heard. On the service of the judgment notice, it is my view. that this was not mandatory to the Ward Tribunals as they have the control of their own proceedings and unless otherwise provided, they are not bound by the procedures which applies under the Civil Procedure Code Cap 33 R.E 2019. The 3rd ground is about the pecuniary jurisdiction of the trial Tribunal. This was also well determined by the appellate Chairperson who found that the trial Tribunal had pecuniary jurisdiction to hear the matter before it. In the trial Tribunal records, the applicant who is now the respondent produced a sale agreement which shows that he purchased the suit premises at the price of TZS 800,000/=. In his

submission in chief, the appellant did not state the value of the disputed property despite his argument that the trial Tribunal did not have mandate to hear the matter which the subject matter exceeds three million Tanzania shillings. Since it was the applicant who was to prove and he produced the sale agreement which shows the subject matter to worth TZS 800,000/=, then the appellate Tribunal was right to find that the trial Tribunal had jurisdiction. I uphold this finding of the appellate Tribunal that the trial Tribunal had jurisdiction to hear and determine the matter. L11 7 On the 4th ground, as already shown, the appellant has argued on the composition of the trial Tribunal that it was improperly composed contrary to the law. He cited Section 11 of the Land Disputes Courts Act Cap 216 which provides that the number of members is to be at least four but not more than eight. Section 11 of the Land Disputes Courts Act provides for the composition of the members of the Ward Tribunal whereby each Tribunal is to be consisted of not less than four and not more than eight members. However, going through the proceedings, it is my view that the composition of the Tribunal was well within the requirement of the cited law and that the law does not necessitate that during the hearing, the quorum should be composed by three women. I agree with the findings of the appellate Tribunal

that both the composition and the quorum during the hearing before the trial Tribunal was complete. On the 5th ground, the appellant claims that the Ward Executive Officer was included as a member of the trial Tribunal in the case. In the claim the appellant named one Jonathan Juma, a ward executive officer as the one who was included as a member of the Ward Tribunal. Having read carefully the proceedings, it is my finding that indeed Jonathan Juma is shown to appear in the list of attendees at the trial 8 Tribunal on 04/4/2021 when the Tribunal was visiting the locus in quo. However, the said Ward executive Officer did not attend as a member of the Ward Tribunal but he was there as the judicial officer ensuring that peace is maintained at the area. The proceedings shows that there were other people who were not members of the Tribunal including the complainant and the witnesses of the complainant. It is my view that this ground is misconceived and it lacks merit. For the foregoing reasons I find the entire appeal to have no merit and I dismiss it with costs. It is so ordered. 9