20121018 TZHC Iringa

IN THE HIGH COURT OF TANZANIA [LAND DIVISION] ATIRINGA . MISCELLANEOUS LAND CASE APPEAL NO. 24 OF 2010 (From the decision of the District Land and Housing Tribunal of Njombe District at Njombe in Land Case Appeal No. 61 of 2009 and Original Ward Tribunal of Lupalilo Ward in Application No. 66 of 2009) JOHN SODOMU MBILINYI ............ APPELLANT VERSUS JACKSON SADALI MBILINYI ....... RESPONDENT (Date of last Order 2.10.2012 Date of Judgement 18.10.2012) JUDGEMENT KIHIO, J., This is a second appeal. The respondent, Jackson Sadali Mbilinyi sued the appellant, John Sodomu Mbilinyi in Lupalilo Ward Tribunal on a claim that the (appellant) threatened his (respondent's) timber workers who were sawing timber belonging to the family of the late Thomas Sanga and they left with the sawing machine without handing over the timber. 1 The Ward Tribunal purportedly decided in favour of the respov.1.dent. The. app~llant was ordered to pay the· respondent a total of TShs.2,077,000/= being expenses for transporting the sawing machine, e~penses for hiring motor vehicle, comp~nsation for false imprisonment, expenses for visiting locus in quo, expenses for attending tribunal, loss for gain for forty two days and the suit filing fees. The appellant appealed to the District Land and Housing Tribunal but his appeal was not successful. He came to this court in this appeal. This is as I say, a second appeal. The evidence adduced in the Ward Tribunal was that of Lazaro Stongeni Sigala (PW. I) and Kalolo Kivevela (DW.1) only. Unfortunately, the appellant and the respondent did not adduce evidence in the Ward Tribunal. The evidence of Lazaro Stongeni Sigala (PW .1) in the Ward Tribunal was that after the appellant, a policeman and the Village Executive Officer (V.E.O.) made a discussion, the Village Executive Officer (V.E.O.) ordered him (PW. I) to remove the Sawing machine from the place where the respondent was sa~g timber. He (PW. 1) further told the Ward Tribunal that after he had informed the respondent on the threat given by the Village Executive Officer (V.E.O.) he removed the Sawing machine from the area where he (PW. I) was sawing timber. 2 'Ill ••• Kalolo Kivevela (DW. 1) told · the Ward Tribunal that the respondent was the administrator of the estate of the late Mzee Thomas and that timber workers reported to them that the appellant had stopped the machine from sawing timber.· He further told the Ward Tribunal that when they went to the place where the timber work was going on they noted that the sawing machine had been taken away-. The District Land and Housing Tribunal upheld the purported Ward Tribunal's decision. The appellant raised three grounds in his Petition of Appeal. The three grounds of appeal are:- 1. That the District Land and Housing Tribunal erred in . . law and fact in holding that the trial Ward Tribunal was correct to determine the complaint that was before it. 2. That the District Land and Housing Tribunal erred in law and fact in failing to evaluate the evidence tendered before the Ward Tribunal in which none of the evidence proved that the respondent is the owner of the suit premises. · 3. That the District Land and Housing Tribunal erred in law and fact in finding that the opinion of the trial 3 tribunal members were properly incorporated, despite the apparent fact~al discrepancie~. The appellant 1s represented by Mr.· Ngafumika, learned Counsel while the respondent appears in person. I~ support of the first ground of appeal, Mr. Ngafumika submitted that the complaint before the ward Tribunal was a criminal complaint and not a civil complaint. He further submitted that the issue of ownership of land and timber was not before the Ward Tribunal. He argued that the District Land and Housing Tribunal erred in law and fact in holding that the Ward Tribunal was correct to determine the complaint that was before it. In support of the second ground of appeal -he submitted that there is no evidence adduced in the Ward Tribunal that the respondent is the owner of the suit premises. In support of the third ground of appeal he submitted that the opinions of the trial Ward Tribunal members were not recorded in the Ward Tribunal's proceedings but the opinions were recorded after the appellant filed appeal in the District Land and Housing Tribunal as seen in the discrepancies in the Ward Tribunal's record. On the other hand, the. respondent submitted that the complaint filed in Ward Tribunal was a criminal one but the Ward 4 Tribunal made · decision on ownership of the suit premises after the dispute on ownership of the suit. premises arose. He further submitted that there was sufficient evidence in the Ward Tribunal that the suit premises is belonging to him. He contended that five tribunal members · sat in the ward Tribunal and · their opinions were recorded in the Ward Tribun~'s proceedings. He further contended that _there is no truth that the opiniops of the Ward Tribunal ·members were recorded after the appellant had filed appeal in the District Land and Housing Tribunal. I cannot go into the merits of the appeal because I find that the proceedings in ward Tribunal were incurably fatal and a nullity. First of all, the constitution of the ward Tribunal members who sat on 20.8.2009 wheri Lazaro Stongeni Sigala (PW. l) gave testimony was not shown in the Ward Tribunal proceedings. Certainly, it is not clear as to whether the Ward Tribunal was properly composed on 20.8.2009 or not. Therefore, the proceedings were a nullity. Secondly, there is no judgement of the Ward Tribunal. It is quite plain on the Ward Tribunal's record of the case that on 3.9.2009 the opinions of five tribunal members were recorded but no judgement of the Ward Tribunal written. Obviously, opinions of the Ward Tribunal members is not Ward Tribunal's judgement .. s Lastly, the Ward Tribunal made · decision on issues which · were not pleaded and tested in evidence at the trial. It is 9lear that the complaint filed by the respondent in the Ward Tribunal was a criminal complaint but the Ward Tribunal gave a purported decision on civil matters which were not pleaded or tested in evidence. By giving the purported decision on matters which were not pleaded and tested in ·evidence, no doubt, the purported Ward Tribunal's decision has occasioned injustice and that the purported decision was a nullity. As the whole Ward Tribunal's proceedings were a nullity, the District Land and Housing Tribunal's decision and orders thereto were also a nullity as they emanate from proceedings which were a nullity .. From the foregoing reasons, the whole Ward Tribunal proceedings and the District Land and Housing Tribunal's decision and orders thereto are quashed. Each party should bear his own costs. ~ S. S. S. KIHIO JUDGE 18.10.2012 Judgement delivered 1n the presence of Mr. Ngafumika, 6 ,. , learned Gounsel for the appellant and the respondent. JUDGE 7