20190225 TZHC Mwanza3

IN THE HIGH COURT OF TANZANIA ATMWANZA MISC. LAND APPEAL NO. 55 OF 2017 {From the Decision of the District Land and Housing Tribunal of Geita District at -~ Geita in Land Appeal No. 54 of 2016, Original Ward Tribunal of Buzilasoga in Application No. 02 of 2016} CHARLES LUGEGETA ...................................................APPELLANT VERSUS SERIKALI YA KIJIJI CHA BUZILASOGA .................... RESPONDENT JUDGMENT 04/12/2018 & 25/02/2019 Gwae, J · In the ward tribunal of Buzilasoga (Hereinafter referred to as "trial tribunal") the respondent, Serikali ya Kijiji cha Buzilasoga filed a land dispute against the appellant, Charles Lugegeta and another person called Joyce Bulenganija. The . respondent was claiming that the appellant and that other person to have trespassed into the village land. ( The suit land was alleged to have been used for cooperative agriculture, particular cotton, ("Kilimo cha ushirika"), burial as well as c/'- , . / grazing since 1975 to 1985 however it is contentious as to who w a s ~ \_ 1 r possessing and use of the suit land from 1985 to 2016 between the •... 0 ~-" parties. In its conclusion, the trial tribunal decided in favour of the respondent by declaring the respondent to be a lawful owner of the suit land. The appellant and another unsuccessfully appealed to the District Land and Housing Tribunal at Geita (appellate tribunal). Hence this 2nd appeal as 2nd appellant's attempt. Praying for orders declaring proceedings and judgment of the DLHT a nullity and trail denovo, the appellant advanced _two grounds of appeal, i_to wit·I i. That, the Geita District Land and Housing Tribunal erred in law and fact in dismissing the appellant's appeal without considering the fact that the appellant had no locus standi to be _sued by the respondent at the ward tribunal as the suit property belongs to the appellant's family ii. That, the Geita District Land and Housing Tribunal erred in law and fact in upholding the ward tribunal's decision of which declared the respondent a rightful owner over the suit land while there was misapprehension of evidence and non-direction of evidence in both tribunals causing miscarriage of justice~ which led to injustice on the part of the appellant 2 - r. ( In his rely the petition of appeal; the respondent seriously contended 'V - that the appellant personally encroached the suit land and not his family and that there was no misapprehension of the evidence adduced in the trial tribunal by the tribunals below. When this appeal was called on for hearing before me, the appellant and respondent were represented by Mr. Katemi (adv) and Mr. Matiku (solicitor and adv) respectively. Mr. Katemi abandoned 1st ground of appeal and proceeded arguing the 2nd ground that the appellant had been in possession and use of the suit land for more than 12 years. He however added that the trial tribunal decision was illegal on the ground that the decision of the ward tribunal being dependent on the votes of majority of the members of tribunal pursuant to section 4 (4) of the Ward Tribunal Act, Cap 206, R. E, 2002. He said that three members out of five members opined in favour of the appellant and that other person. The appellant's counsel also argued that the appellate tribunal chairperson misdirected herself by not assigning reasons for her departure from the opinion of two assessors who opined for the appellant. ~ 3 Mr. Matiku for the respondent attacked the submission by the appellant's advocate in that there were equal votes and the chairperson who has casting vote in terms of section 4 ( 4) of the Act exercised that right and eventually it was legally decided in favour of the respondent. He also submitted that the evidence adduced by the parties was objectively evaluated. In his rejoinder, the learned counsel merely reiterated his submission in chief. In determining this appeal, it is apposite to start with the issue of the --- - decision of the trial tribunal whose members' votes are now challenged by the appellant's counsel. In order to safely determine this legal issue, subsection 4 of section 4 of the Act is herein under reproduced; "4 (4) At any sitting of the Tribunal, a decision of the majority of members present shall be deemed to be the decision of the Tribunal, and in the event of an equality of. votes the Chairman shall have a casting vote in addition to his original vote". According to the above statutory wording, a decision of ward tribunal is dependent on the votes of majority of members present and in the event~ 4 equal votes the chairperson shall have a casting vote in addition to his former vote. In examining the trial tribunal record, I have noted that it is quite evident that there were three members (Kingi Kanyenyeki, Sophia Lugonda and Rahel Marco) who decided for the appellant and there were two members of the trial tribunal who voted for the respondent, these were; Willison Faustin and Letisia Eliasi as rightly complained by the appellant's counsel. Keenly looking at the proceedings of the trial tribunal, I have noted that nowhere the trial tribunal chairperson voted or indicated to whom he decided for. That being the court's observation, the trial tribunal chairperson, Ernest Shigemelo ought to have shown his decision and in case of equal votes he would have exercised his right of casting vote as provided for under section 4 (4) of the Act (supra). At the moment, it is a lacuna whether his original vote was for_ the appellant or respondent. Moreover, both hand written and typed decision of the trial tribunal indicates that there were ih members who participated in the delivery of th the judgment on 5 September 2016, the secretary inclusive, that is wrong~ 5 .. : since the secretary of the ward tribunal appointed in terms of section 4 (2) v ~ ,_ of the Act in law not a member of the ward tribunal ("WAJUMBE WALIOSHORIKI SIKU YA HUKUMU"). This position was at once stressed by her ladyship, Hon. Mugasha J now JA, sitting in this court at Arusha in Patrice AMA v. Gisman Hawu, Land Appeal No. 18 of 2011 (unreported) where this court relying on provisions of the Ward Tribunal Act, stated: 'The Chairman and the Secretary do not constitute a quorum of 4 members as required under section 4 of the Ward Tribunal Act, Cap 206 R. E 2002, besides, the secretary is not a member of the Ward Tribunal and he does not constitute a quorum". Having determined the legal issue in favour of the appellant, I think cannot be justified to proceed determining the 2nd ground of appeal which is basically about valuation of evidence for an obvious reason of illegality of the trial tribunal decision. Basing on the reasons herein above, I hereby nullify the decision of the trial tribunal; let the same ward tribunal with the same members if no longer in service other members to pass through the evidence on record, for expeditious dispensation of justice, revisit the evidence, prepare and deliver a judgment afresh. Equillly, the proceedings and decision of the ~ / 6 1 ~,: District Land and Housing Tribunal are quashed and set aside. Each party I () . •:; t-,) to bear its own costs of this appeal and tribunals below. ~ Judg 25/02/2019 ~---- -. . - - 7