edwin kawonga vs clodwick kawonga 2016 tzhc 2188 12 april 2016

AT SONGEA LAND CASE APPEAL NO. 4 OF 2016 (Arising from the decision of the District Land and Housing Tribunal of Mbinga in Land Appeal No. 59 of 2015, Originating from Mpapa Ward Tribunal in Land Case No. 6 of 2015) EDWIN KAWONGA.............................................................APPELLANT Versus CLODWICK KAWONGA....... ...................... ...................RESPONDENT

JUDGMENT Last Order: 30th March, 2016 Date of Judgment: 12th April, 2016 CHIKOYO, J. This is the second appeal. Originally at Mpapa Ward Tribunal, the respondent being a complainant successfully sued the appellant over a dispute relating to a piece of land in which the respondent alleged that, the appellant had trespassed into his land. Dissatisfied, the appellant unsuccessfully appealed to the District Land and Housing Tribunal. Following the dismissal of his appeal, the appellant has come herein in the second appeal. Through the legal services of Mr. Waryuba, the leaned Advocate the appellant has raised three grounds of appeal in challenging the decision of the District Land and Housing Tribunal. However, before I venture into the merit of this appeal, let me summarize a brief facts which has led to this appeal. Basically according to the court records, at the Ward Tribunal the i i respondent alleged that, the appellant had trespassed into his land by cultivating on it, and his evidence was to the fact that, he had been owning that land since way back in 1983 after being given by his father, and his father had given separate pieces of land to all of his children including the appellant. The respondent after being given that land, he gave it to one ALFONCE as a care taker and he went for studies to Dar es Salaam, then the said ALFONCE built a ward for his clients on the part

of that land since he was a witchdoctor, but later he coufd manage it due to age, it was then the appellant trespassed into the respondent's land. On the other side of the story, the appellant strongly denied the allegations by alleging that, the land in dispute is a clan land which as a family they use to cultivate therein since way back in 1980 to 2015, and the appellant disputed the allegation that, their father had given that land to the respondent as a clan land. When the matter was referred by the respondent as a complainant at the Ward Tribunal, it was determined in the respondent's favour, but the appellant unsuccessfully appealed to the District Land and Housing Tribunal, hence this is his second appeal. When this appeal was called for hearing, Mr. Waryuba, the learned Advocate represented the appellant, and the respondent appeared in i * person. According to Mr. Warygba's submissions in supporting the first, ground of appeal, the Ward Tribunal erred in law by proceeding to dispose the matter before inquiring the value of the land in dispute, and the first * appellate tribunal erred in law by distinguishing the decision of Ally < Kapalama Versus Omari Ligomba and 2 Others, Land Appeal No. 11 of 2015 (High Court of Tanzania at Songea) (Unreported) which was decided by this court on that account. Regarding to the second ground of appeal, the’ decision of the

Ward Tribunal was not valid since according to section 11 of Cap. 216 R.E 2002 requires the members of the tribunal to be not less than four (4) and not more than eight (8), and in all proceeding there must be three (3) <women in the coram, and in the instant appeal, at the Ward Tribunal there were five (5) members of which two (2) were female. Third ground of appeal that the DLHT erred in law and fact to hold that the plot in dispute was of the respondent while it is of the appellant as per evidence adduced. Lastly Mr. Waryuba in regard to unlisted ground argued that, WINFRED KAWONGA is seen as a part to the case at the Ward Tribunal but in all the proceedings, the respondent's name appear which according to Mr. 1 Waryuba mislead the court. Thus, Mr. Waryuba prayed this appeal to be allowed and the decisions of the two lower tribunals be set aside and the matter be ordered to be retried de novo. Basically, in reply, the respondent strongly opposed this appeal and all what has been argued by Mr. Waryuba and prayed this appeal to be dismissed with costs. At this juncture, I had to go through the entire court records,and instant submissions from both sides, and I have come up with one crucial issue th&t is whether this appeal has m eritor not. Starting with the issue of failure of the Ward Tribunal to inquiry on the actual value of the land in dispute so as to ascertain as to

whether the Ward Tribunal had jurisdiction to entertain the matter or not. This issue is not new since the appellant even raised it in the second ground ^of appeal in the District Land and Housing Tribunal; however the Chairperson dismissed that ground as well as found that, the referred case of Ally Kapalama Versus Omari Ligomba and 2 Others (supra) is distinguishable in the present case. As to me, I agree with Mr. Waryuba on this account since the above cited case had laid down a legal position that, * » the omission to ascertain the value of the land in dispute renders the entire proceedings of the lower tribunals nullity, and the only remedy for this court is to nullify. (See page 5 of the said Judgment) 4 * However, I am alive with the position that the decision of the High Court is not binding, but I find no sufficient reasons to depart from the stated decision's principle. For that reason, had it been that the first appellate tribunal properly considered the legal position stated in that cited case,, obviously the second ground of appeal could not have been dismissed, in 4 the event, I find the entire court records (proceedings and judgment) from the Mpapa Ward Tribunal in Land Case No. 6 of 2015 and District Land and Housing Tribunal in Land Appeal No. 59 of 2015 nullity, since it is uncertain as to whether the value of the land in dispute fits to be determined at

the Ward Tribunal. I could end up here, however I find it inevitable to deal with one more issue of coram as argued by Mr. Waryuba. The law is well settled that, by virtue of section 11 of the Land Disputes Courts Act (supra) requires the members, of the Ward tribunal to be not less than four (4) and not more than eight (8), and in all proceeding there must be three (3) women * i in the coram. I have gone*through the records of the Ward Tribunal yvhere I have found that, during the hearing of the dispute, as correctly argued by Mr. Waryuba, there were* five (5) members, but only two (2) members were female and in the instant appeal, whereas the law requires women to * i be not less than three (3) women, see 23/06/2015, 30/06/2015 and more 4 * so on 04/08/2015 (date of judgment) the proceedings and judgment indicates that there were only four (4) members in which two of them were women, and the fifth member one DAMIAN D. MSEMI was missing. From the above stated reasons, I find this appeal has merit by finding that ■ • entire court records (proceedings and judgment) from the Mpapa Ward Tribunal in Land Case No. 6 of 2015 and District Land and Housing Tribunal in Land Appeal No. 59 of 2015 nullity. I order the matter be remitted to the Mpapa Ward Tribunal for a retrial. Since the matter is still undetermined on merits, I find it inappropriate to order costs. This appeal is allowed with no order costs. r /' <, w - S^M. CHIKOYO

JUDGE 12/04/2016 Judgment delivered in chambers in the presence of the respondent in person and Mr. Chris Court Clerk, in the absence of the appellant, this 12th * day of April, 2016. / 1 ('I S.M. CHIKOYO'

JUDGE I 12/04/2016 S.M. CHIKOYO

JUDGE 12/04/2016