LAND APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (KIGOMA SUB-REGISTRY) AT KIGOMA LAND APPEAL NO. 3471 OF 2024 BERNADETHA PAULO NTIHAZANIYE (Administratrix of the estate of the late Paulo Ntihazaniye) .......••.....•..................... 1st APPELLANT CHARLES ABEL DAUD (Administrator of the estate of the late Yohana Bitaliho Ndinadyo) 2nd APPELLANT VERSUS NEIGHBOURS WITHOUT BOUNDERS RESPONDENT (Appeal from the Ruling and Drawn order of the District Land and Housing Tribunal for Kigoma at Kigoma) (F. Chinuku, Chairwoman) Dated 19th day of October 2023 In (Land Application No. 51 of 2023) JUDGMENT Date: 06/06 & 29/07/2024 NKWABI, J.: In the trial tribunal, the respondents sued the appellant for reliefs as follows: ''8. Fidia/ mleta maombi anaomba fidia z1fuatazo: (i) kuw». Baraza iii liamuru kuwa wazazi wa waleta maombi ndiyo walikuwa wami/iki halali wa maeneo yenye mgogoro yaliyopo eneo Kasimbo Kata ya Busomelo ndani ya wilaya ya Kigoma Mjint Mkoani Kigoma. (ii) Kuwa Baraza iii limamuru mjibu maombi kuondoka kwenye eneo h1lo tajwa hapo juu na kulipa gharama za 1 ;. kesi. (iii) Na nafuu nyingine ambayo Baraza iii litaona inafaa kutoe. // In her written statement of defence, the respondent, annexed a letter of offer of a right of occupancy, annexure "B" issued by the Director of Kigoma/Ujiji Municipal Council. There is also annexure "C" titled Compensation of permanent crops within your plot at Ujiji" the respondent was required to pay to the municipal council which would in turn pay to the owners. The appellants never filed a reply to the Written Statement of Defence to refute the allegations or advance explanations. I say so because the appellants painted the piece of land in dispute as if it had never been acquired by the Government. A preliminary objection was raised by the respondent's counsel. It was entertained by way of written submissions. The trial tribunal was satisfied that the land application was time barred. It dismissed it with costs. It had these words, in its ruling, to say: ''Kipengele hicho kinathibitisha wazi waleta maombi walifahamu uvamizi wa mjibu maombi tangu miaka ya 2000 mwanzoni /akini wamekaa kimya mpaka mwaka 2021 walipoanzisha mgogoro huu. Ni wazi kwamba shauri !ipo nje ya muds. '' 2 , - The decision of the trial tribunal, perplexed the appellants. They filed this appeal having three grounds of appeal. The main ground of appeal is that the trial tribunal erred in law and fact by declaring that the suit was time barred contrary to item 22 of the 1st schedule to the Law of Limitation Act, Cap. 89 R. E. 2019. The appeal was duly argued by way of oral submissions. Ms. Christina Mwiyanja, learned counsel appeared for the appellants while the respondent was duly represented by Mr. Daniel Rumenyela, also learned counsel. When I was composing this Judgment, I became doubtful of the powers of the trial tribunal even in ruling that the land application was time barred. The reason for naturing such stance was caused by the annexures in the reply to the land application which are the letter of offer of a right of occupancy and request for payment for compensation. That is, if the piece of land is surveyed, and a letter of offer of a right of occupancy issued by the municipal council, then there would require the Attorney General to be joined to the land case as a necessary party. Then, by virtual of the Government proceedings Act, the land case ought to have been filed in the High Court. It is due to that stand view of this Court, I required the counsel for both parties to address me. 3 Ms. Mwiyanja's comment on the posed irregularity, started by lamenting that the fact that the piece of land was surveyed was raised by the respondent in the reply to the application. She was of the view that the appellants had no room to reply it as the chairperson went over to hear and determine the preliminary objection. Ms. Mwiyanja added that on the list of the persons paid, their clients were not mentioned and one of the persons namely Johas Sitamwa was listed as paid while, she had already died. She also beefed up that her clients were not involved in the survey. She also elaborated that the father of the 1st appellant wrote a letter to stop the survey but they did not reply. In that regard, Ms. Mwiyanja pressed that the trial tribunal ought to have raised the deformity suo motu and dismiss the land application. She finally beseeched that the proceedings of the trial tribunal be nullified and the suit be filed in the High Court on the required procedure as the trial tribunal had no jurisdiction to entertain the matter. When replying to the comments tabled by Ms. Mwiyanja, Mr. Rumenyela conceded that in their reply to the application, in the trial tribunal, they annexed a letter of offer and payment for compensation evidence. He categorically stated that the appellants ought to have sued the Municipal 4 Council and join the Attorney General as a necessary party and such that suit ought to have been filed in the High Court. He added that it is thus, the trial tribunal lacked the jurisdiction to entertain the matter. He concluded his comments, by praying the proceedings of the trial tribunal held a nullity. He also craved this Court to quash the same with costs. In brief rejoinder comments, Ms. Mwiyanja underscored that since her clients are not mentioned and another who is mentioned is a deceased, then the payment was illegal. In respect of costs, she prayed that the proceedings be quashed but without costs, by letting each party to bear their own costs. As far as this Court is concerned, since the counsel of both parties have conceded that the trial tribunal had no jurisdiction to entertain the matter as the facts indicate that the Municipal Council and the Attorney General ought to be joined to the land case, then I accept the view that the proceedings in the trial tribunal are a nullity. It is the High Court which has the jurisdiction to entertain the matter. The prayer that the proceedings and ruling in the trial tribunal be quashed is granted, they are so quashed. As the oddity has been raised by this Court suo motu, each party shall bear their own costs. Finally, I am constrained to conclude that the appeal is unmerited due to 5 . ....... the above discussion. It is dismissed. It is so ordered. DATED at KIGOMA this 29th day of July 2024. t7V 1:e~r~(~ :✓ . F. NKWABI I JUDGE 6