antoni damka vs silvester faya 2023 tzhc 21667 4 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB-REGISTRY) AT MOROGORO LAND APPEAL NO. 137 OF 2022 (Arising from the Judgment of District Land and Housing Tribunal for Kilombero/Malinyi in Land Appeal Case No. 9 of 2021; Originating from the Decision of Ifakara Ward Tribunal in Land Case No. 12 of 2020) ANTONI DAMKA (As an Administrator of the estate of the late PASCHAL PETRO DAMKA) APPELLANT VERSUS SILVESTER FAYA RESPONDENT JUDGEMENT 4'*^ October, 2023 CM ABA. J. This second appeal originates from Ifakara Ward Tribunal where the appellant instituted a Land Case No. 12 of 2020 against the respondent for trespassing over a parcel of land measuring 17 meters width and 30 meters in length. Before the trial Ward Tribunal, the appellant alleged that the said disputed land belonged to his late father (Paschal Petro Damka). On the other side, the respondent fended that he is lawfully owning the disputed parcel of land after he had purchased the same from one Tekia Damka. After hearing both sides, the trial Ward Tribunal declared the appellant herein as a lawful owner of the disputed parcel of land. Aggrieved, the respondent successfully appealed to the District Land and Housing Tribunal for Kilombero/ Malinyi at Ifakara (the DLHT) in Land Appeal Page 1 of 8 Case No. 9 of 2021. On its finding, the DLHT (First Appellate DLHT)found some illegality pertaining to the proceedings of the trial Ward Tribunal which resulted to a wrong decision of the trial Ward Tribunal. It was the decision of the DLHT that, the decision of the trial Ward Tribunal was constituted by members who did not sit during the hearing of the matter. At the end of the day, the first appellate DLHT proceeded to nullify the judgment and decree of the trial Ward Tribunal with an order for retrial. It is against this order which the appellant seeks to challenge at this stage of second appeal on the following two grounds of appeal 1. That, the appellate tribunalerredIn law andfactsfor declaring the quorum was notproperly metand ordered the matter be tried de- novo while the quorum was properly convened by the trial tribunal. 2. That, the appellate tribunal erred In law and facts by entering judgment In favour of the respondent without considering the strong evidence adduced by the appellantconcerning the disputed land. When the matter was called on for hearing, Mr. Frank Mposo, learned advocate appeared fot'the appellant while Mr. Michael M. Chami, also learned advocate entered appearance for the respondent. The matter was disposed of by way of oral submissions. Page 2 of 8 Arguing in supportof the appeal, Mr. Mposo prayed first to drop the second ground of appeal and remained only with the first ground. In essence, Mr. Mposo supported the decision of the trial Ward Tribunal and challenged the decision of the first Appellate DLHT stating that it nullified the decision of the Ward Tribunal based upon the ground of procedural irregularities. Mr. Mposo stressed that, the fact that the quoram of the trial Ward Tribunal that involved to make the final decision was composed by Other members who did not take part during the trial, had no legal effect because during the hearing of the matter, the quorum was constituted with a number of members which suits the requirement of the provision of section 11 of the Land Disputes Courts Act, [CAP. 216, R. E, 2019], which is not less than four (4) and not more than eight (8) members. Mr. Mposo contended further that, the quorum in the trial Ward Tribunal shows that during the hearing of all sessions, it was chaired by more than four (4) members. In that view, it was prudent to exclude the members who did not attend during the hearing. Me therefore argued that, it would be more justice to uphold the decision of the trial Ward Tribunal rather than nullifying the entire judgment and,the trial Ward Tribunal's proceedings. On the above grounds, he prayed the Court to allow the appeal, nullify the proceedings and set aside the judgment and orders issued by the DLHT and restore the decision of the trial Ward Tribunal. Page 3 of 8 Responding to the above submission, the Counsel for the respondent, Mr. Chami vehemently opposed the appeal and submitted that, the DLHT correctly nullified the decision of the trial Ward Tribunal because it was improper for the members at the trial Ward Tribunal to involve themselves in the final decision while the record is clear that they did not participate from the beginning and during trial of the matter. It was Mr. Chami's contention that, the issue dealt by the first Appellate Tribunal was not on the numbers of members involved, but rather it was whether a member who did not participate to preside over a dispute between parties, can competently deliver a binding decision in the eyes of the law.. Hence, he was of. the view that, the first Appellate Tribunal vyas justified to hold that it vvas impossible. He ended up his submission by praying the Court to dismiss the appeal with no order as to costs. As noted above, this appeal was argued by the parties Orally. Hence, upon hearing the rival arguments put forward by the learned Counsel for the parties, r adjourned the matter for a judgment. However, while in the processes of preparing and composing rny judgrrient based on the grounds and merits of the appeal; and taking into account that the present appeal stemmed from the trial Ward Tribunal, I had ample time to read and peruse the entire records. As a matter of procedures, the appellant was supposed to lodge, his appeal before the DLHT instead of ffling directly before this Court. Page 4 of 8 Had it been noticed before commencement of the hearing of the appeal, I would have invited the parties to address the Court if the instant appeal was properly filed in Court or otherwise. But, I think in my view that, it is not too late to deal with the matter which is purely a point of law. I am mindful that this Court is bestowed with the general powers of supervision over all District Land and Housing Tribunals and may, at any time, call for and inspect the records of such tribunal and.give directions as it considers necessary in the interests of justice,: and all such tribunals, shall comply with such direction without undue delay. Further, this Court mby in any proceedings determined in the District Land and Housing Tribunal in the exercise of its original, appellate or revisional jurisdiction, on application being made in that behalf by any party or of its own motion, if it appears that there has been an error material to the merits of the case involving injustice, revise the proceedings and make such decision or order therein, as it may think fit. It should also be noted that/ in the exercise of its revisional jurisdiction, the High Court shall have all the powers in the exercise of its appellate jurisdiction without re-opening the proceedings. See - Section 43(1)(a)(b) and (2) of The Land Disputes Courts Act,^ [CAP„ 216 R. E. 2019](the LDCA). As stated earlier oh, appeals of matters originating from Ward Tribunal is governed by section 38 of the' LDCA (supra). On a careful scrutiny of the Court records/ I observed aS hinted above that, the matter was filed in this Court Page 5 of 8 without complying with the law an act that renders the entire appeal before me incompetent. Under section 38 (1),(2) and (3) of the LDCA, the law says: - "(1) Any party who is aggrieved by a decision or order of the District Land and Housing Tribunal in the exercise of its appellate or revisional jurisdiction, may within sixty days after the date of the decision or order,, appeal to the High Court: Provided that, the High Court may for good and sufficient cause extend the time for filing an appeal either before or after such period of sixty days has expired, (2) Every appeal to the High Court shall be by way. of petition and shall be filed in the District Land and Housing Tribunal from the decision, or order of which the appeal is brought. (3) Upon receipt of a petition under this section,the District Land and Housing Tribunal shall within fourteen days dispatch the petition together with the record of the proceedings in the Ward Tribunal and the District Land and Housing Tribunal to the High Court. According to the records, the appellant's petition of appeal was filed in this Court on 4'^'^ hfovember, 2022. But/ section 38 (2) and (3) of the LDCA (supra) provides that, every appeal to the High Court shall be by way of petition and Page 6 of 8 shall be filed in the DLHT from the decision, or order of which the appeal is brought. Upon receipt of a petition, the DLHT shall within fourteen (14) days dispatch the petition together with the record of the proceedings in the Ward Tribunal and the DLHT to this Court. Since the above provision of the law is couched in mandatory terms as provided under section 53 (2) of the INTERPRETATION OF LAWS ACT [CAP. 1 R.E. 2019], such an omission automatically ousted the Court's jurisdiction. It follows therefore that, as the day follows night, the present appeal was wrongly filed in this Court, and the consequential thereof this Court lacked jurisdiction to entertain and determine the appellant's petition of appeal for being incompetent. In the result, it is hereby struck out with no order as to costs. It is so ordered. DATED at MOROGORO this 4''^ day of October, 2023. —0^ M.lO^a \ JUDGE 4/10/2023 Page 7 of 8 Court: Judgement delivered under my Hand and the Seal of this Court in Chamber's this 4^^ 2023 in the absence of both parties. -1. c? 'V 7' UJ V" A . MMBAIMDO EPUTY REGISTRAR 4/10/2023 Court: Rights of Appeal to the parties fully explained. OP o c 3: ■z- .MMBANDO jg^ TY REGISTRAR 4/10/2023 Page 8 of 8