20160905 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA

AT DODOMA MISC. LAND CASE APPEAL NO. 7 OF 2015 (From the Decision of the District Land and Housing Tribunal of Dodoma District at Dodoma in Land Case Appeal No. 127 of 2014 and Original Ward Tribunal of Mkoka Ward in Land Case No. 13 of 2014) E EA MAZEIJGO.................. 11•E•l•NU •.••• ....... .. ...............APPELLANT

VERSUS ATHUMANI RA.JABU........U..I..I.... ................

JUDGMENT 22/7 & 05/91 201 6

KWARI KO Before the Ward Tribunal of Mkoka appellant herein filed a case to claim a plot of land from the respondent herein. Her evidence was that the plot of land was given to her child Sophia Sadiki a minor through her by the child's father SADIKI ABASI LUGAWA on 15/8/2016. The said SADIKI ABASI LUGAWA was appellant's co-parent to the said child SOPHIA. On his part the respondent herein refuting the claims alleged that the disputed plot was mortgaged to him by the said SADIKI ABASI LUGAWA as security for loan he took from him of Tshs. 460,0001= on 13/6/20 13 and the loan is still outstanding. 1 The trial tribunal found that respondent herein was entitled to retain the disputed plot as long as SADIKI ABASI LUGAWA was still indebted to him. This decision was upheld by the District Land and Housing of Dodoma where the appellant had preferred an appeal. Undaunted by the double failure the appellant field this appeal. The appeal was duly heard. And the issue to decide is whether the appeal has merit. Upon perusal of the court record this court found that both parties tendered documents pertaining authority to disputed land but the same are uncertified photocopies which are unadmissible in law. The law says that documentary evidence can be produced through the document itself which is called primary evidence as per section 64 (1) of the Evidence Act [Cap 6 R.E. 2002] or if the

document itself is not available through certified copies of that document as per section 65 of the Evidence Act (supra). Now, in the case at hand both parties produced copies of documents purporting to have been authored by the said SADIKI ABASI LUGAWA and no evidence was given as to the whereabouts of the originals. Not even the said SADIKI was called to testify on the allegations from both parties or the alleged documents. Therefore, since no any party was able to prove their assertions and since the matter ought to be resolved, the best way is to start afresh, so that the original documents could be tendered and the said author be called to testify.

6. For the foregoing this court through revision powers envisaged under section 43 (1) (b) of the Land Disputes Courts Act [Cap 216 R.E. 2002] declares the proceedings before trial tribunal a nullity and are hereby quashed. Same goes to appeal proceedings before the district tribunal which originated in the null proceedings. Consequently, this appeal lacks base within which to stand and it is hereby dismissed. For the avoidance of doubt it is hereby ordered that the case be heard afresh before the Ward Tribunal for the parties to tender relevant - evidence and the said original owner of the disputed plot SADIKI ABASI LUGAWA to testify. Each party to bear their own costs. Order accordingly.

V

AR I KO

JUDGE 5/9/2016 Judgment delivered in court today in the presence of both Parties, Mr. Kusekwa learned Advocate for the Respondent and Ms. Judith court clerk. Un

JUDGE 5/9/2016 3 61-1 Court: Right of Appeal Explained. M.A. r4 JUDGE 5/9/2016 4