20151026 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DODOMA LAND CASE APPEAL NO. 30 OF 2015 (From the Decision of the District Land and Housing Tribunal of Dodoma District at Dodoma in Land Case Appeal No. 148 of 2014 and Original Ward Tribunal of Mbabala Ward in Application No. 5 of 2014) AMOSMGANGA APPELLANT VERSUS MARIA DAMIAN RESPONDENT Date of Last Order: 17/09/2015 Date of Judgment: 26/10/2015 JUDGMENT Sehel, J This appeal arises from the decision in Land Appeal No. 148 of 2014 in the District Land and Housing Tribunal for Dodoma and original Land Case No. 5 of 2014 of Mbabala Ward Tribunal. It was the appellant who instituted a case before the Ward Tribunal against the respondent. The Ward Tribunal comprised of three members of Tribunal namely Odina Thomas; Salome Chonde; and Paul ljinji decided in favour of the appellant. The respondent aggrieved with the decision appealed to the District L a n ~ 1 Housing Tribunal. The District Land and Housing Tribunal quashed and set aside the decision of the Ward Tribunal hence the present appeal. The appellant advanced three grounds of appeal; namely: l) That, the District Land and Housing Tribunal erred in law an fact to change the decision reached by Mbabala Ward Tribunal which in fact was good decision in accordance with evidence adduced by the appellant; 2) That, the District Land and Housing Tribunal erred in law and fact to change the decision reached by the Ward Tribunal that the appellant had right to sue (locus stand) on the suit land as there was evidence that the family members (the heirs) handed over the suit land to the appellant to be under his absolute control; 3) That, the District Land and Housing Tribunal erred in law and in fact in reaching the decision in favour of the respondent, believing that she was given the suit land by the grandfather of the appellant while no evidence to that effect. The appellant had the services of Magande M. Rweyemamu advocates while the respondent was unrepresented. The appeal was argued by way of written submission. In his submission, Mr. Magenda did not submit on the grounds raised but rather argued on the issue of technicality that goes to the root of the proper jurisdiction of the Ward Tribunal. He pointed out that the records of the Ward Tribunal shows that t h ~ g 2 members were three including the chairman. He argued that the law requires the quorum of the Ward Tribunal to be four members inclusive of the Chairman. He cited in his submission Section 4 ( 1) (b) of the Ward Tribunal Act, Cap. 206 which reads: "Every Tribunal shall consist of a chairman of the Tribunal appointed by the appropriate authority from among the members elected under Paragraph (a)" He further cited Section 17 (2) of the Land Disputes Courts Act, Cap. 21 6 which reads: "When a complaint is made to the Secretary under subsection ( 1) , that Secretary shall cause it to be submitted to the Chairman of the Tribunal who shall immediately select three members of the Tribunal to mediate" He concluded that there was no appeal before the District Land and Housing Tribunal thus no proper appeal before this Court. He prayed for the matter to start de novo before the Ward Tribunal. The respondent replied that by virtue of Section 35 (1) (d) of the Land Disputes Courts Act, Cap. 216 and Article 107A of the Constitution of the United Republic of Tanzania, the District Land and Housing Tribunal was satisfied that irregularity was not fatal to deny justice to be done. Since the issue goes to the jurisdiction of the trial Tribunal and · since the respondent had opportunity to respond to it, I proceeded to hear and determine despite the fact that it was not raised in his grounds of appeal. I invited b: the appellant to c o n ~ e • proprietary of the decision of the Ward Tribunal that was delivered by three members of the trial Tribunal. As correctly pointed out by counsel for the appellant the composition of the Ward Tribunal is four members inclusive the Chairperson. This can be gathered from Section 11 of the Land Disputes Courts Act, Cap. 216 which reads: "Each Tribunal shall consist of not less than four nor more than eight members of whom three shall be women who shall be elected by a Ward Committee as provided for under Section 4 of the Ward Tribunals Act, 1985" Further Section 17 (2) of the same Act read together with Section 4 ( 1) (b) of the Ward Tribunal Act, Cap. 206, as correctly stated by counsel for the appellant that the Chairperson is one of the members of the Tribunal. In the matter under scrutiny, the decision of Mbabala Ward Tribunal was made three members instead of four members. This is contrary to the law. In view of the aforesaid, the decision of the Ward Tribunal is null and void ab 'initio. I, therefore proceed to nullify the entire decision, orders and proceedings of Mbabala Ward Tribunal in application no. 5 of 2014. I further proceed to nullify the proceedings, decision and orders of Dodoma District at Dodoma in Land Appeal No. 148 of 2014 as that decision was found from a decision which was a nullity. I also invoke the revisional powers under Section 43 (1) (b) of the Land Disputes Courts Act, Cap. 216 order a retrial before the trial Tribunal that is dully composed. I make no order to costs . ~ 4 .,, because the anomaly as legality of the decision was occasioned by the trial Tribunal and not by the parties. DATED at Dodoma this 26 th day of October, 2015. B.M.A Sehel JUDGE 26/10/2015 Judgment delivered at Dodoma in open court, under my hand and seal of the court, this 26 th day of October, 2015 in the presence of Mr. Rweyemamu, advocate for appellant and in the presence of both appellant and respondent. Right of appeal of appeal is fully explained. B.M.A Sehel JUDGE 26/10/2015 5