Amani Kanali vs Amani Nzunda PC Civil Appeal No

IN THE HIGH COURT OF TANZANIA AT MBEYA APPELLATE JURISDICTION (Mbeya Registrty) PC CIVIL APPEAL NO. 12 OF 2004 (From Mbeya District Court Civil appeal No. 42 o f 2004 - Original Santilya Primary Court Civil Case No. 3 o f 2004) AM ANIKANALI .......................................... APPELLANT VERSUS AMANI NZUNDA .......................................... RESPONDENT JUDGEMENT OTHMAN. J. This appeal is against the judgment o f the Mbeya District Court delivered on 3/02/05, which revised the decision o f the Santilya Primary Court issued on 28/07/04 that held that the appellant, Amani Kanali had not established his title over the disputed land plot. The respondent is Amani Nzunda. O f the five grounds o f appeal contained in the memorandum o f appeal instituted on 2/03/05, ground 5 represents the clear cut issue on which this appeal can be disposed. This ground put forward that as:- 5. The cause of action is a claim for a land plot on which a house has been built, then the proper way o f instituting the case is not before the Primary court, but the Village Land Council under the Land Disputes Courts Act (No.2 o f 2002). In its bare essentials the dispute arises this way. Before the Primary Court, the respondent’s case was that his younger brother had given the appellant a land plot to build, not farm. Moreover, upon the farmer’s death, the appellant in 2002 invaded another area, clan land, estimated at % acre. The appellant’s case was that in 1989 he was allocated a farm area by the ten cell leader, one Ostin Sambilkimwaya, who died in 2002. He was not told anything about farming. Thereon he built a house, and had planted various fruit trees in 1991. The land also had four graves. As observed earlier, the trial court held in favour o f the appellant. On first appeal, the District Court held that the evidence on record supported the respondent’s case. It upset the Primary Court’s judgement. Adverting next to the merits o f the appeal, after a close examination o f the whole record, it would appear to me that the matter really boils down to the question whether or not the claim, which no doubt involves land was instituted after the coming into operation of the Land Disputes Courts, Act, 2002 that came into operation on 1/10/03 (G.N. No. 223 o f 8/8/03). Going by the record, the respondent’s claim was instituted at Santilya Primary Court on 18/02/04. There is merit, therefore, in Ground 5 o f the appeal that the Primary Court had no jurisdiction to entertain the suit, which ought to have been adjudicated by the Village Land Council and the machinery established under the Land Disputes Courts, Act, 2002. To that I would only add that the District Court too had no jurisdiction to determine the appeal. Both subordinate courts omitted to direct themselves on the issue raised. The result is that devoid o f jurisdiction, their proceedings and judgments are null and void, and they are so declared. They are equally quashed and set aside. Should it be desired that the claim be pursued, then it is now the law that the adjudication forums establishes under the Courts (Land Disputes Settlement) Act, 2002 must be followed. In these circumstances each part is to bear its own costs. M.C. OTHMAN JUDGE 9/8/06 This Judgment is to be delivered by the District Registrar. M. C. OTHMAN JUDGE 9/8/06 Date: 7/9/06 Coram: S.B. Bongole, District Registrar. Appellant/Respondent: Both Present. B/C: Sarah Court: Judgement delivered. S.B. Bongole District Registrar 7/9/06