chacha marwa chogoro vs waitihache merengo 2023 tzhc 20961 13 september 2023

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY)

THE HIGH COURT (MUSOMA SUB REGISTRY)

AT MUSOMA LAND REVISION No. 7 OF 2023 (Arising from the District Land and Housing Tribunal for Mara at Musoma in Land Appeals Nos. 81 of2022 & 236 of 2014; Land Application Nos. 93 of 2015 & 66 of2023; & originated from BuswahiH Ward Tribunal in Land Dispute No. 9 of 2014) CHACHA MARWA CHOGORO............................................. APPLICANT Versus WAITIHACHE MERENGO.................................................. RESPONDENT

RULING 13.09.2023 & 13.09.2023 Mtulya, J.: The present parties, Mr. Chacha Marwa Chogoro (the applicant) and Waitihache Merengo (the respondent) are in land dispute since 2014. At one point in time, their dispute was resolved by this court in Land Appeal No. 70 of 2016 and our final court of appeal, the Court of Appeal (the Court) in Civil Appeal No. 164 of 2018 (the appeal). The Court in the appeal, had resolved, at page 12 of the judgment, that: ...under the circumstances, we invoke the provision of on section 4(2) of AJA [the Appellate Jurisdiction Act [Cap. 141 R.E. 2019] to revise and nullify the proceedings in Land Case No. 93 of 2015 and Land Appeal No. 70 of 2016, quash the decisions, and set aside the orders. i Concerning to the way forward, the Court thought and ordered, at pages 12 to 13 of the judgment that: ...records in Application No. 9 of 2014 be remitted back to Buswahiii Ward Tribunal to facilitate compliance to the Tribunal [District Land and Housing Tribunal for Mara at Musoma] order dated 2&h May 2015 in Appeal No. 236 of 2014. The same be dealt with in accordance to the law. Regarding the question on the status of the order and current amendment of the law in Land Disputes Courts Act [Cap. 216 R.E. 2019] (the Act), via Written Laws (Miscellaneous Amendment) Act, No. 3 of 2021 (the Amending Act), which had stripped of the mandate of ward tribunals in

resolving land contests in favor of mediation proceedings, the Court thought that: We are aware of the amendment. However, we find the decision distinguishable. In Kubingwa's there was no order for retrial. The Court acknowledged that the Ward Tribunal has been stripped of its powers to deal with land matters aside from operating as a mediation body, hence did not find any logic in ordering parties to go back to the Ward Tribunal, but for anyone desirous of doing so should abide by the law currently in place after the amendments. Unlike the case before us, there is a pending order for a retrial... the sanctity of court or Tribunal orders demands that those orders must be complied with. In the instant situation, it could 2 simply be going to Ward Tribunal for mediation, which will still be compliance. The order of the Tribunal of 28th May 2015 referred by the Court shows that the proceedings, orders and decision of the Buswahili Ward Tribunal (the ward tribunal) in Land Dispute No. 9 of 2014 (the dispute) were quashed and finally the Tribunal ordered trial de novo. However, the parties have declined to abide with the Tribunal's order and Court's directives. Instead of following the order for trial de novo at the ward tribunal, the parties preferred fresh Land Dispute No. 20 of 2020 (the second dispute). It was unfortunate that the ward tribunal in the second dispute did

not abide with the current laws regulating land disputes brought in ward tribunals, hence its decision was invited in Land Appeal No. 81 of 2022 (the second appeal). The second appeal had resolved that: ...hukumu ya Baraza la Kata na Mwenendo wa Shauri kwenye Shauri Na. 20/2022 vimefutwa. Wadaawa wameelekezwa kurudi Baraza la Kata kufanya usuluhishi tu. Usuluhishi ukishindikana Baraza la Kata Utoe Had ya Usuluhishi kushindikana na wadaawa wafungue shauri katika Baraza ia Ardhi ia Nyumba Wilaya ya Musoma. This thinking of the Tribunal had aggrieved the applicant hence approached this court for Land Revision No. 7 of 2023 (the revision) praying for this court to examine the record of the Tribunal and make appropriate orders. The revision was called today 3 afternoon for hearing and the applicant had appeared in person without any legal representation whereas the respondent had hired the legal services of Mr. Daud Mahemba, learned counsel. In his brief submission, the applicant submitted that the proceedings and decision of the Tribunal were tainted with illegalities and confusions and prayed for this court to scrutinize the proceedings and decision of the Tribunal for want of proper record. In replying the submission, Mr. Mahemba submitted that there is no any illegalities, but the applicant is not conversant with the directives of the Court. According to Mr. Mahemba, there is an

order of the Tribunal and directives of the Court which have not been complied by the parties and must be complied with. Finally, Mr. Mahemba prayed for this court to order the parties to comply with the Court's directives issued on 1st March 2022. I have scanned the record and noted the order of the Tribunal issued on 28th May 2015 and directives of the Court issued on 1st March 2022, as displayed in this Ruling, were not complied with. It is obvious and vivid from the records that the parties have not complied with the order and directives, which are mandatory in order to preserve the sanctity of the courts' records. As the order and directive of our superior court are still intact, the parties have no any other pigeon holes to go through. They have to follow the course directed by the Court. In such circumstances, the decision of 4 the Tribunal in the second appeal determined on 21st February 2023 is correct and the parties must comply for proper record of the ward tribunal and Tribunal. In the end, I uphold decision of the Tribunal in the second appeal and order the parties to comply with the directives issued by the Tribunal on 21st February 2023, without any reservations. I do so without costs as the applicant is a lay person busy searching for his rights in land contest. Ordered accordingly. F. H. MtQlya Judge 13.09.2023 This RulThg’was delivered in Chambers under the Seal of this court in the presence of the applicant, Mr. Chacha Marwa Chogoro and in the presence of Mr. Daud Mahemba, learned counsel for the respondent, Mr. Waitihache Merengo. Judge 13.09.2023 5