JUDGMENT EXSAVERY HOFI LAND APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (KIGOMA SUB-REGISTRY) AT KIGOMA LAND APPEAL NO. 40 OF 2023 EXSAVERY HOFI (Administrator of estate of the late HOFI DURI (Deceased person) APPELLANT VERSUS MUHINDA VILLAGE COUNCIL 1 sr RESPONDENT DANFORD MUSWA 2ND RESPONDENT EMMANUEL BILIHO @ NEKE 3Ro RESPONDENT MOSHI KISAKO ········ 4TH RESPONDENT SADIK! ZUBER! ····························································· 5TH RESPONDENT SPRIANO CHUMVA@ YUMBE 6TH RESPONDENT OMARY BIHONGOYE 7TH RESPONDENT IBRAHIM ATHANAS gm RESPONDENT EZEKIEL SANDA 9TH RESPONDENT ALEX BIKASI ··················· 10TH RESPONDENT (Appeal from the Judgment and decree of the District Land and Housing Tribunal for Kigoma at Kigoma) (F. Chinuku, Chairperson) Dated 4th day of Maay 2023 In (Land Application No. No. 58 of2017) JUDGMENT Date: 17 & 24/10/2024 NKWABI, J.: 1 The pt respondent who appeared in Court by Mr. George Kalenda, learned Senior State Attorney, distanced herself from the decree of the trial tribunal, which was in her favour. The learned Senior State Attorney partly conceded the appeal. He supported the 3rd ground of appeal which is that: The trial tribunal erred in both law and facts in determining the matter between the parties herein while non joinder of the Attorney General vitiated the proceedings thereto and the fact that the Attorney General ought to be joined as a necessary party to the case, trial tribunal was stripped off its jurisdiction to determine the matter. Initially, the appellant had sued the respondents in the trial tribunal. The piece of land the subject of this appeal was claimed by the appellant to have been trespassed by the 3rd to the 10th respondents whereby they grazed cattle and uprooted trees under the instruction and permission of the 1st and z= respondents. Therein, the appellant prayed to be declared owner of the disputed piece of land among other reliefs. The trial tribunal was not moved by the evidence of the appellant. It held that the appellant had failed to prove ownership of the piece of land in dispute, it dismissed the land application with no order as to costs. Apparently, the verdict aggrieved the appellant. He found himself in this Court challenging that verdict. 2 The hearing of the appeal was carried out by way of written submissions. Mr. Geoge Kalenda, learned Senior State Attorney, appeared for the 1st respondent. Mr. Moses Karwani Rwegoshora, learned counsel, appeared nd for the appellant. The 2 to 10th respondent refused to receive service, the appeal was heard in their absence. It was the submission in chief by Mr. Rwegoshora, on the 3rd ground of appeal, that the trial tribunal erred in law for failure of joining the Attorney General. He pointed out that section 6 of the Government Proceedings Act requires the Attorney General to be joined to the case. The suit was filed in 2017 and the decision was delivered in 2023. He pressed that procedural laws operate retrospectively. Thus, the tribunal had no jurisdiction to entertain the matter. He referred this Court to the decision in OPP v. Jackson Sifael & 3 Others, Criminal Appeal No. 2/2018, CAT at page 27-30 and Kalala Wino v. Karatu District Council, Civil Application No. 132/02/2018, CAT at page 4. He stressed that joining the AG is a procedural requirement. He finally prayed this Court to quash the proceedings and judgment of the trial tribunal. Mr. Kalenda while addressing this Court in reply submission conceded the rd 3 ground of appeal. He stated that it was wrong for the trial tribunal to decide the matter without joining of the Attorney General to the suit. So, 3 the trial tribunal had no jurisdiction to entertain the matter. Mr. Kalenda went on to argue that the 1st respondent is a local government under section 16 of the Government Proceedings Act, R.E. 2019 as amended by the written laws (Miscellaneous Amendment) Act No. 1 of 2020. Section 26 amended section 16 of the Government Proceedings Act which added subsection 4 which defines the word government to include local government among others. Also, section 3 of the Local government (District Authorities) Cap. 287 of 1982, a village council or a Kitongoji is identified as a government. The learned Senior State Attorney further contended that then section 10 of the Government Proceedings Act requires the Attorney General be sued where the Government is sued. Also, section 6(4) of the Government Proceedings Act requires the suit to be instituted in the High Court. He pointed out that it should be read together with section 7 of the Act. Mr. Kalenda thus concede the appeal that the trial tribunal erred in deciding a suit without the A.G. being joined to the suit. He further accepted that procedural laws act retrospectively. Mr. Kalenda also underscored that since the tribunal had no jurisdiction, then declaration of the 1st respondent as owner of the disputed piece of land and that the evidence was not properly evaluated, have to die a natural death because the proceedings in the trial tribunal were a nullity. 4 He stressed that he accept the two prayers stated by the counsel for the appellant that the appeal be allowed, the Court quashes the decision of the trial tribunal. The rest be disregarded. Mr. Kalenda asked the Court to allow the appeal without an order as to costs. Mr. Rwegoshora had nothing in rejoinder submission. I have considered this appeal. The anomaly complained of and admitted st by the 1 respondent is glaring. Since the 1st respondent is a local government, the land dispute ought to have been lodged in the High Court. Therefore, the trial tribunal had no jurisdiction to entertain the matter. Further to that, the Attorney General ought to have been joined to the proceedings as rightly submitted by the learned counsel. He was not joined. The proceeding and the judgment of the trial tribunal are thus nullity. They are quashed. The decree of the trial tribunal is set aside. Because the 1st respondent and the rest of the respondents did not resist the appeal and actually Mr. Kalenda asked this Court not to order for costs, I make no orders as to costs. It is so ordered. DATED at KIGOMA this 24th day of October 2024. ~\ J. F. NKWABI JUDGE 5