20150925 TZHC Mwanza

.N THE Hit iANZANIA i:i~ '' _.,,, A r- J .,..,.~ # nj . _,, ,..;-....r......_.;.. · , LAND APPEi-h.. r,Q. 168 OF 2014 1 ' .- ._.. -, _1the Decision of the District Land and Housing Tribunal of Mwanza District )1wanza in Land Appeal No. 70 of 2013 and Original Ward Tribunal of Magu Ward Land Case No 6 of 2013) AUGUSTINO RWESAKA .... ........................... APPELLANT VERSUS FELISTA LUCAS LULU ........................... RESPONDENT JUDGEMENT Ebrahim, J. The appellant herein was the respondent in the Civil Case No. 6/2013 at Magu Ward Tribunal where the tribunal delivered exparte judgement against him where the tribunal ordered the appellant to pay the respondent Tshs 2, 920,000/- being rent arrears and costs. The tribunal went further and ordered attachment of the properties of the appellant so as to recover the decretal sum. Aggrieved by the decision of the Ward Tribunal, the appellant appealed at the District Land and Housing Tribunal, vide Appeal No 70 of 2013, claiming that the Ward Tribunal acted ultra vires by attaching and effecting the execution of the appellants' properties; and also that it has no jurisdiction to entertain a suit which it has no pecuniary jurisdiction. However during the hearing of the matter, the appellant abandoned the claim of jurisdiction. The DLHT after considering the submissions of both parties upheld the decision of the Ward Tribunal. Aggrieved again, the appellant preferred this appeal. 1 (f' At F ,Jellant was advocated by Mr. I (' Mwarabu,} ...Ji:lvocate_whilst t,. '~nt fended for herself. P' ~' . Th~.: ,.. µ~llant raised three (3) grounds of appeal that; · 1. That the learned honourable chairman grossly erred in law and fact by deliberately ruling without reasonable cause or justification that the appellant properties were subject of attachment while the trial Tribunal acted ultra-vires by effecting its own order contrary to the law. 2. That the learned honourable Chairman grossly erred. in law and fact by failing to consider that the improvements on the suit property made by Appellant increased the value of suit premises hence the trial Tribunal to lack pecuniary jurisdiction. The appellant's costs hadn't been recovered yet as agreed by the parties. 3. That the learned honourable chairman erred in law and fact by failing to consider and direct itself to what the Appellant submitted and concurred by the respondent. Submitting on the first ground of appeal~ Mr. Mwarabu stated that it was wrong for the Ward . Tribunal to order attachment and execute . its own order. He submitted thatWard Tribunals are established under Act No. 7/1985, Ward Tribunals Act, CAP 206, R.E. 2002. One of their duties is to hear matters on housing and land dispute as per sections 13 and 14 of Act No. 2 of 2002, Land Disputes Courts Act, CAP 216, R.E. 2002. He submitted further that section 16 of CAP 216 defines orders that Ward Tribunal can give which are returning the house/land, order the party to fulfil a term of the contract, order compensation. Orderfor arrest and cost. However, in the present case, the Ward Tribunal heard the matter exparte an~ ordered attachment on 06.06.2013. Further ~n the same day it executed its own order by breaking and entering into the house of the appellant. 2 1,J Mr. ~r- •:ilso that, S~(f ~20 of CAP 216 provides for 45 days to api( ·-iie DLHT. Accordi.- 0 •~n 16(3) CAP 216, when the party ·~ to the dis}~ .. lails to comply with the'\t.'tier of , the Ward Tribunal is supposed to refer the matter to the DLHT for enforcement. Moreover, the DLHT on appeal, confirmed the decision of the Ward Tribunal. Thus, Mr. Mwarabu prayed for the court to quash the decision of the DLHT as well as Ward Tribunal. Mr. Mwarabu submitted on the second ground of appeal that, the Ward Tribunal had no pecuniary jurisdiction to entertain the matter as the value of the suit was more than the pecuniary jurisdiction of the Ward Tribunal. Section 10 of CAP 206 · read together with section 15 of CAP 216 provides for pecuniary jurisdiction of the Ward Tribunal to be not.more than 3 million Tanzania shillings. He contended therefore that, much as the respondent was claiming Tshs. 2,920,000t- but the value of the house a~er renovation is 15 million shillings. Therefore, it was evident that the Ward Tribunal had no jurisdiction and much as they raised the issue at the DLHT, the chairman did not discuss it. He prayed to abandon the third ground of appeal. In reply, the respondent averred that, the appellant signed the first and second summons but did not appear. She contended that the trial Tribunal did not break the premises but there was an employee of the applicant who handed over the properties. She contended further that he was called by the street \l I chairman that the ward Tribunal wants to execute the order, but the appellant ; i did not stop the process. Hence they forfeited his properties as a lien for the money that he owes the respondent. In rejoinder, Mr. Mwarabu stated that basically the respondent admits that Ward Tribunal executed its own order. Also, she admits that the Tshs. 15 million was discussed in DLHT. Therefore, the whole process was not done according to the law. He reiterated the previous prayers. ' l. 3 'j~' ~\ '", :: I ... '~.;~, ·. , !'.-, 1 J · ' appear beforq{ ,al Tribunal t(. ~stan( , his claim that he actually spent Tshs. 15 mif _ renovate the sa1, .:: Th~1 i~twithstanding, _he did not file an ;i 1 1 .. (!'application,(_ '.5Eit aside exparte judgement so that he could get the chance to ·disapprove· the respondent, nor did he explain anywhere as to why he did not attend the proceedings at the trial tribunal. Therefore, I find that this ground of appeal is also devoid of merit and I dismiss it. Before I pass my order, I would like to comment on the issue of . procedural error occasioned in this case that; while the Chairman was probably thinking that he was speeding justice actually he delayed it by non adherence to the provisions of law and procedure. I subscribe· to the wisdom of Justice Rutakangwa (JA) that speed in good but justice is better See the case of Thomas Peter @ Chacha Marwa Vs The Republic, Criminal Appeal No. 322 of 2013, (Unreported) w~-\bc ·~ a ! D c r u . _ From the background, I allow the appeal ~o the extent that, this court invokes its revisionary powers by_ quashing and setting aside the attachment order of the Ward Tribunal as well as the decision of the DLHT. The attached properties of the appellant should be released immediately. The Ward Tribunal • should follow proper procedure as required by the law in enforcing its order. Nevertheless, I confirm the decision of the Trial Tribunal that the appellant~ A, should pay the respondent rent arrears amounting to Tshs 2,920,000/- r, ~ It is so ordered R. A. Ebrahim JUDGE AtMwanza 25/09/2015 5