19840630 TZHC Mbeya

* c1t N THE HIGH COURT OF ThNZANIA ATMEYA CIVIL APPEAL NO. 12 OF 1 1983 (From the Decision f the District Court of Mbeya District Court in Civil Case No. 4 of 1981. Before J.M.Kiyeyeu Esq. Resident Maristrate). AMBELE NUAKASALA •.o.ø.e.o 0000 APPELLANT Versus NEWTON KANYIKI •,.o RESPONDENT Subject Matter: Pieace of Land and Other reliefs. JUDGMENT Katiti, J. . Newton Karyiki, therespondent herein, filed an action in the District Court Mbeya, against Ambele Nwakasala alias Ambule Mwaikuju the appellant herein, claiming (i) two and half acres of land Shs.8,000/= damages as value of 400 tea plants claimedly destroyed, Shs.'2,000/= loss of profit from tea sal, , etc. With the defence that also staged a counter claim, the trial court resolved the issue of land ownership in favour of the respondent, allowed Shs.2,000/= out of Shs.8,000/= damages sought, allowed 3hs03,000/ as loss of earnings and finally dismissed the counter—claim. Hec this appeal. by the appellant ibele .Mwakasala0 The two opposed parties are peasant farmers hailiig from Lugombo in Kyela. .While the respondent contended, hegot the shamba in question as from 1955, without mentioning how he got the same, but only to be euroched upon by the appellant, the appellant mai:taiied, thatin the era when he was a Chief, he allocated a piece of land to the respondent for farming purposes, and a house to shelter him. According to him, when ,the house gave way because of age, the respondent built his own. The appellant added that in 1977, he had had occasion to go to Dares Salaam, and that when he came backafter si.moths, he found the rsoondent had uprooted his Euch:riotus and 2,7 ,- ., bno trez, aed that I - he successfully •the matter to the Customary Land Tribunal where Judgment was tendered as Exhibic D1. All the same.the trial magistrate handed down the Judgement he did to the respondcnt In the prosecution of this appeal the parties were represented by Counsels - that is while the appelant was represented by a Mb€ya based Advocate Mr, Mwakilasa, Mr 0 Dhebar another Advocatej represoutad the respondent0 On the facts as recapitulated in the summary from, the issue as it. was rightly appreciated by' the, trial magistrate, WCS or should have been, who was the rightful owner of the questioned and contested piece of land, as the consequential reliefs wolJ follow the event0 It seems to me that both appellant and his defence Counsel, while impressing upon the Magistrate that the issue of ownership of the piece of landhad already been settled by the Customary Land Tribunal, under the Customary Lease holds (Enfranchiseme ) Act of 1968 and 1969, th,e Counsel for the respondent ad the respondent himself, hopefully not through conspiratorial design, made no rfrence to the same. And may be more unfortunately the appellant's Advocate submission, and the appellant's tendering of exhibit Di, which should have spurred the trial magistrate into meaningful inquiry, were not even referred to0 On appeal, Mr, Mwakilasa, 'learned Counsel for the appellant, submitted that, the matter in question having been finally dealt with by the Customary Land Tribunal, it could not again be enirtained by the District Court, inoriginal jurisdiction. He submitted further that, if the respondent was aqqrieved, the remedr lay in.hisappeling td. te Minter for the time being responsible for land. Havinq studied the record, 'I am left iith satisfaction, that this, submission was not effectively countered by the opposite party, nor in any Jav entrtained by the trial magistrtu6 -3- I shall hence visit this aspect. Having expoa1 thu rcord to thorough and ceserving scrutiny, I cannot avoid bi:.çJ satisfied even beond doubt, that the same .parties• - NEriTON IcflYIKi and ANBELE MWAIKUJU alias AMBELE.MWAK.SALA did appear h, fora the Customary. Lard Tribunal over the same question of land ownurship. The record does also speak without reservatcons, that h. cl€im by the respondent was dismissed. And where a party to proce:dings before the Customary Land Tribunal is aggrieved, he hcu a stetutory right to appeal to the 11inistér for the time being r:spo;sible for land. For the above pointed airection Section 13 as epald and replaced by Section (3) of the Customary Lease holds (Enfranchisement) (Amendment) Act 1969 lands provides as follows:- Sect. 13(1) "Where any party to any proceedings e before a Tribunal is aggrieved by order, or decision of the Tribural in such proceedings, he may appeal therefrom to the Ninister," In so far as I know, and this is asserted with confide:ice, the abve provisions have neither been repealed nor arnendd. Jh: Parliament in a Policy situation establishes a certain Institution Eor adjudication of claims, it is channels so establishud for that purpose, that must be utilised and, or applied to the legal loqical end so so allowed. In this case the respndent if aggrievud, u:d he appears ag9riev, to have been he should have appealed to the IIiister. That being the case, where the Custoniary Land Tribunal has been seized of and has finally decided the case, the Cou:'t of Law hath no jurisdiction to entertain the case involving the same Subjuct matter, I hold therefore, that, the District Court in this cas; had no jurisdiction at all. Even, if the Customary Land Tribual had not 1' —4- dealt with the case, the claim appearing to involve Cuctornary Law as it does, it is questionable and doubtful whthr, the said / action would be filed in the District Court, inview o'the Provisions of Section 1.4 of the Magistrates Courts Act, 1963. In finality, the District Court having had no jur'isdiction, the proceedings are hereby declared a nullity. The appeal is allowed with costs 0 E0 J. KATITI JUDGE 3,0/6/1.984 Court: Judgment to be read and delivered to parties on notice. :MBEYA E. W. KATITI JUDGE 30/6/1984. / L 4