20170721 TZHC Mwanza

(_ IN THE HIGH COURT OF TANZANIA · (MWANZA RIEGI.STRY)

ATMWANZA LAND APPEAL N0.37 OF 2015 (Arising from the decision of the District Land and Housing Tribunal of Tarime District at Tarime in Land Case No. 89 of 2013) EZRA OUSO KURE ..•.. n1111 ■ 11••·············••11••························••11APPELLANT

VERSUS 1. AFISA MTENDAJI (WEO) KATA YA NYAHONGO ............................... RESPONDENTS 2. MBOYI OJUNG'A Last Order: 13/06/2017 Judgmenc21/07/2017

JUDGMENT MAKARAMBA, J.: This is Judgment on appeal from the decision of the District Land and Housing Tribunal of Tarime District at Tarime in Land Case Case No. 89 of 2013 dated 5 th of March, 2015 before Hon. Mayeye, S.M., Esq Chairman. This appeal is in respect of the suit land located at Minigo Village, Nyahongo Ward within Rorya District in Mara Region, which previously was in the ownership of one Otieno Okech. In 1974 during Operation Vijiji, Otieno Okech relocated to another Village. Following his demise, the suit land was left in the hands of his relatives including the 2nd Respondent herein, Mboyi Ojung'a. In 2013, the Appellant successfully applied before the· Minigo Village Government fo.r the allocation of the suit land, to Page 1 of 20 -,._J.... which he was allocated on the sole ground that, the suit land was bare ( . land ("hame') following its previous owner Otieno Okech, deceased, having been relocated to another area during Operation Vijiji and thus his land being left under the control of the Village Government. It was after the Appellant having been allocated the suit land and started developing it that is when a dispute between him and the 2nd Respondent, Mboyi Ojung'a, arose. The dispute was first submitted to the Ward Executive Officer of Nyahongo, then to the District Commissioner for Rorya who directed the Ward Executive Officer (WEO) to resolve it.

In implementing the directive of the District Commissioner for Rorya, the Ward Executive Officer instructed the Minigo Village Executive Officer (VEO) to convene a General Village Assembly to find out the truth about the ownership of the suit land and recommend as who between the Appellant and the 2nd Respondent '-'.Vas the lawful owner of the suit land. The Minigo General Village Assembly recommended the suit land to be returned to the 2nd Respondent, Mboyi Ojung'a, as the lawful owner simply because originally the suit land belonged to his ancestors. The General Village Assembly recommended further that, the Appellant Ezra Ouso Kure, immediately to vacate the suit land. Following the resolution by the General Village Assembly, the Nyahongo Ward Executive Officer addressed the 2nd Respondent, Mboyi Ojung'a, with a letter dated 11 th of November 2013, allowing him to repossess the suit land. The Appellant was infuriated by the letter issued to the 2nd Respondent by the Nyahongo Ward .Executive Officer, a.nd lodged a suit before the District Land and Housing Tribunal at Tarime in Application pg- Page 2 of 20 ( No. 89 of 2013 against both the Ward Executive Officer of Nyahongo (· Ward and the 2nd Respondent, ·seeking for an order that, he be confirmed to be the lawful owner of the suit land as per the allocation made to him by the Village Government. The suit ended in favour of

the 2nd Respondent.· The Appellant having been dissatisfied with the decision of the District Land and Housing Tribunal of Taririle has appealed it before this Court in the instant appeal the subject of this Judgment on the following grounds namely; 1. That, the Honpurable learned trial chairperson erred in law and fac_t for failure to observe that village general assembl½ is not among the court system in determining land disputes and as such relying heavily on exhibit D1 and D2 was wrong and occasioned failure ofjustice.

2. That, the Honourable le_arned trial Chairperson erred in law to hold .that the land belonged to the Z1d Respondent contrary to evidence on record.

3. That, the Honourable learned trial Chairperson erred in law and fact for failure to observe that the evidence of the Z'd Respondent to observe that the evidence of the Z'd Respondent was married by irreconcilable contradictions.

4. That, the Honourable learned trial Chairman erred in law for his failure to accord no weight and reasons to the strong evidence·of the Appellant with his exhibits. ~ Page 3 of 20 5. That, the Honourable learned trial Chairman erred in law for failure to ( observe that the 1st Respondent was obeying administrative orders by ordering unlawful return of the land lawful allocated to the Appellant.

6. That, the Honourable learned trial Chairman erred in law and fact for importing factual assertion not supported by evidence on record. The Appellant has prayed for the following orders:- (i) This Court to allow the appeal with costs (ii) This Court to declare the Appellant lawful owner of the disputed land In prosecuting the appeal, the Appellant was represented by Mr. Tuguta, learned Advocate and Mr. Kassim Gila, learned Advocate represented the Respondents. In his submissions, Mr. Tuguta for the Appellant elected to abandon the sixth ground of appeal and proceeded to argue the remaining grounds of appeal. Arguing the first and fifth grounds of appeal jointly Mr. Tuguta stated that, the Appellate Tribunal in its decision dated 05/03/2015 · determined the suit by deciding that, the dispute land belonged to the 2nd Respondent, Mboyi Ojung'a, and his Brother called Sikiria Nyakwaka, who was not a party to the application before the Tribunal as at p~ge 5 of the typed Judgment. In arriving at the decision, the trial Chairperson based his decision on, and believed the testimony of, the 2nd Respondent and the exhibits the 2nd R~spondent tendered in evidence especially Exhibit D2, being Minutes of the Village General Assembly of Mirigo Village held on Page 4 of 20 ~ - I - 08/11/2013. Mr. Tuguta stated further that, that meeting was a result of ( directive vide the letter. of the

District Commissioner for Rorya District to the Ward Executive Officer of Nyahongo Ward dated 22/10/2013 requiring the Ward Executive Officer (WEO) to deal with the land dispute . between the 2nd Respondent and Appellant as reported by the 2.nd Respondent to the District Commissioner. According to Mr. Tuguta, the said letter was purely an administrative letter with which the Ward Executive Officer (WEO) complied and on 05/11/2013, the Ward Executive Officer (WEO) summoned the parties, the 2nd Respondent and Appellant, in his office but did not reach a solution. Mr. Tuguta submitted further that, the Ward Executive Officer (WEQ) ordered the Chairman of the Minigo Village to call a General Assembly. As per Exhibit D2, the Village General Assembly resolved that, the disputed land should be given to the 2nd Respondent. On 11/11/2013 the Ward Executive Officer (WEO) wrote to the 2nd Respondent to go back to the disputed land. Mr. Tuguta submitted further that, the trial Tribunal failed to appreciate that what existed between the parties was a dispute over ownership of the suit land, which could be resolved only by a Court vested with jurisdiction to resolve disputes in land matters. In buttressing his submission on this point, ML Tuguta referred this Court to the provisions of Section 3 of the Land Disputes Courts Act, [Cap.

216. R.E. 2002], which lists Courts vested with powers to determine land disputes, namely; Village Land Counci.l (VLC); Ward Tribunal (WT), District Land and Housing Tribunal (DL&HT); High Court and Court of Appeal of Tanzania as per Page 5 of 20 ·, . ',.;_ . (. : Section 3(2)(a) - (e) of Cap.

216. By convening and supervising the . (- Village General Assembly for Minigo Village and consequently deciding that the disputed land is the property of the 2nd Respondent, Mboyi Ojung'a; acting upon purely administrative directives of WEO, the WEO usurped the . powers of Courts legally vested with po_wers to determine land disputes and hence violated the requirement of the law, Mr. Tuguta opined. The . WEO was supposed to advice the parties to submit the dispute to the competent Court/Tribunal depending on the pecuniary jurisdiction of the Court, Mr. Tuguta surmised. Arguing the ·2 nd and 3rd grounds of appeal jointly, Mr. ·Tuguta stated that, the trial Chairperson erred in law and in fact when he determined that the disputed land was the lawful property of the 2nd Respondent contrary to the evidence on record, and for failing to see that the evidence of the 2nd Respondent and that of his witnesses were contradictory and could. not be reconciled. Mr. Tuguta referred this Court at page 8 of the typed trial Tribunal proceedings, where the Appellant stated that, he got the disputed land on 16/06/2013 after having been allocated by the Village Council. The Appellant stated at page 9 of the same proceedings that before the disputed land being allocated to him, itwas bare land ("mahame') of one Otieno Oketh who had relocated to another area since 1974. Since then the suit land was

open land and was under the administration of the Village Government. According to Mr. Tuguta, as per such evidence, the disputed land was legally allocated to the Appellant. The testimony of the Appellant was supported by that of PW2 as at page 12 qf the typed proceedings where he stated that the disputed land belonged to Ot:ieno Oketh and . ~ Page 6 of 20 . that he moved in 1974 leaving the land empty until it was allocated to the ( Appellant in 2013. PW3 also supported the evidence of the Appellant and PW2 as at page 15 of the typed proceedings, that the Appellant was allocated the disputed land by the Village Allocation Committee, Mr. Tuguta added. It was the further submissions of Mr. Tuguta that, even on the part of the Respondent, he supported the fact that the Appellant was allocated the disputed land. DW1, Fredrick Nyambabo at page 22 of the typed proceedings stated that, he (DW1) is the one who signed the letter (Exhibit Pl) dated 19/06/2013 as Secretary, allocating the land to the Appellant. DW3, Sospeter Okeyo, stated at page 26 of the typed proceedings that, the Applicant/Appellant live in the land of Otieno Oketh, which supports the fact that the disputed land previously was the land of Otieno Oketh as the Appellant has all along- been claiming. DW4, Naftali Oguta as at page 29 of the typed proceedings stated under cross examination by the 1st Respondent that, the

2nd Respondent has no land or house at the disputed land. On the clearly· linking evidence, the trial Chairperson still awarded the 2nd Respondent a· win, Mr. Tuguta further submitted. Mr. Tuguta submitted further that, the evidence by the 2nd Respondent was conflicting in various areas. According to Mr. Tuguta, there is serious conflicting evidence in the Respondent's evidence and his witnesses on the ownership by the 2nd Respondent of the disputed land. DW2, the 2nd Respondent himself while testifying before the District Land and Housing Tribunal as at page 23 of the typed proceedings, stated that the disputed land was the property of his family and not his. Further, that he built Page 7 of 20 ( thereon a house on 26/06/2006. However, the same witness, 2nd ( . Respondent,· at page 25 of the typed proceedings, while under cross examination, stated that the disputed landed property -belonged to his father. Whilst DW4 ·stated that, the Respondent had no house on the . disputed land. On 20/10/2014, the District Tribunal visited the locus in quo, and at page 38 of the typed proceedings, the District Tribunal stated that the suit land is an open land without any crops. If there was a house, the Tribunal would have. stated so, Mr. Tuguta suggested. DW2 stated that, he was the owner of the disputed land and at the same time DW6, Sikelia Welson Nyakwaka, stated at page 34 of the

proceedings that, the suit land was his property. In that regard Mr. Tuguta stated that, there is confusion as to who owns the land between the 2nd Respondent; his father or his family or DW6, brother. According to Mr. Tuguta, the conflicting evidence is irreconcilable. Mr. Tuguta pointed out another confusion in respect of the evidence by DW2, the 2nd Respondent who stated that, the Ward Executive Officer (WEO) was the one ·who supervised the Village General Assembly, which eventually determined that, the disputed land belongs to the 2nd Respondent and that the Ward Executive Officer (WEO) was doing so in compliance to the order by the District Commissioner. However, DW2 explanation differs with the testimony of DW6, the brother to DW2, as at page 35 of the typed proceedings; that, the exercise was supervised by "DIWANI", the Counselor; who together with the Villagers said that the 2nd Respondent and Sikelia Nyakwaka should be returned to their land, Mr. Tuguta further submitted. According to Mr. Tuguta, it is not clear as to Page 8 of 20 ~ ( . who between Ward Executive Officer (WEO) and "Diwan!' and the Villagers ( · determined that, the 2nd Respondent and Sikelia Nyakwaka be returned to the disputed land, which fact the Chairman did not see and determine. Mr. Tuguta submitted further that, the trial Chairperson reached his decision without abiding by the evidence as given

by the two sides in the matter contrary to the requirements of the law as stated by the Court of Appeal of Tanzania in the case of DAMSON NDAWEKA v. ALLY SAID MTERA, Civil Appeal No. 05/1999 {unreported} {CAT} {Arusha} where the Court stated at page 12 of the typed Judgment that, before reaching a decision it is critical for a Court to analyze the evidence of both sides. The trial Tribunal did not do so and hence reached an unfair decision, Mr. Tuguta surmised and prayed that, this Court should reach a fair decision. Submitting on the fourth gro!Jnd of appeal, Mr. Tuguta stated that, th~ Chairperson reached his decision without according weight to the Appellant's evidence and the exhibits which he believes were much · stronger. In his Judgment, there is· nowhere the Chairperson of the Tribunal explains the weight of the two exhibits, Exhibit Pl and P2 respectively, which are not shown in the proceedings if they were admitted unopposed, thus making them to be genuine and relevant. In the whole Judgment, the Chairperson does not give reason why he did not consider the Appellant's evidence and his two witnesses and the two exhibits in reaching his decision, Mr. Tuguta further submitted. According to Mr. Tuguta, wh?t the Chairperson did is contrary to the good intention of the . law as stated by the Court of Appeal of Tanzania in the case of TANZANIA ~ Page 9 of 20 BREWERIES LTD v.

ANTHONY NYil!4BI, Civil Appeal No. .1.19/2014 ( (unreported) (CAT) (Mwanza) where at page 7 of the typed Judgment, where the Court states that; "if a Court of Law decides to accept or reject the parties argument it must deinonstrate that it has considered the saine and set out the reasons for rejecting or accepting it. Otherwise the decision becomes an arbitrary one."· According to Mr. Tuguta, the Chairperson did not give reasons why he did not consider the Appellant's evidence and his exhibits or reasons why he rejected them. Since the Chairperson did not do what is required of him by the law his decision was arbitrary, Mr. Tuguta surmised and prayed that the appeal be allowed with costs and the Appell~nt be declared the lawful owner of the disputed law. Responding to the submissions by Mr. Tuguta on the 1st and 5th grounds of appeal, Mr. Kassim, learned Advocate for the Respondent stated that, the first version as at page 6 of the proceedings together with the Judgment as at page 1, the Applicant/ Appellant stated that he was given the disputed land on 19/06/2013 by the ViUage Economic, Planning and Finance Committee. Mr. Kassim stated further that Pw2, Issack Oyomo stated that, the Appellant/ Applicant was given the disputed land by Ward Ex~cutive Officer (WEO). Looking at the testimony of PW3, Juiius Kayanda Francis,_ he stated that the .Appellant/Applicant. was given the

disputed land by· the Vi Hage Allocating Committee. As to the . ~ Page 10 of 20 ( version of the 2nd Respondent and his witnesses as to how he got the ( disputed land, the 2nd Respondent stated that, the disputed land belongs to him and has been living there since 2006 when he constructed a house thereon. Mr.· Kassim submitted further that, at page 23 of the proceedings the 2nd Respondent stated that, the disputed land was property of the family. The evidence of the 2nd Respondent is supported by Exhibit D1, the minutes of the Village General Assembly, and .Exhibit D2, a letter from the Village Executive Officer, one George Omboko to the Ward Executive Officer of Nyahongo Ward handing ·over the disputed land to the 2nd Respondent. Mr. Kassim submitted further that, the documents received at the trial on behalf of the Appellant was a letter from "Kamati, Uchumi Mipango na Fedha'' dated 19/06/2013, which the Appellant claim that it gave him the disputed land. While explaining the source of the I.and, the Appellant/ Applicant gave three versions as to who gave him the disputed land, namely; Village Economic Planning and Finance Committee, the 1st Respondent, Ward Executive Officer and the Village Allocating· Committee. There is no letter from either the Ward Executive Officer or Village Allocating Committee allocating the disputed land to the Appellant. The only allocating letter

is the one from the Village Economic Planning of Finance Committee dated 19/06/2013. According to Mr. Kassim, the issue is whether the Village Economy Planning and Finance Committee have the power to allocate Village Land Mr. Kassim was of the view that, the Committee has no such powers. In buttressing his submissions on this point, Mr. Kassim referred this Court to Page 11 of 20 ~ the provisions of Section 8(1) of the Village Land Act, [Cap.114 R.E. ( · 2002], which vests the Village Council with powers to manage all Village Land; and Section 8(5) of Cap.114 vests the Village Council with powers to allocate land. The allocation of land is subject to approval by the Village Assembly, Mr. Kassim· added and submitted further that, when the Appellant clai~s that, he was allocated the land by the Village Economy Planning and Finance Committee it is clear that he was allocated the land by a person .without authority to allocate land. Mr. Kassim submitted further that, he was aware of Section 8(4)of ·the Village Land Act, Cap. 114, which empowers a Village Council. to establish Committee to advice and make recommendations to it on the exercise of any of the other functions of the Management of Village Land, and notwithstanding the Local Government Law, such Committee "shall have no power to take decisions concerning the management of the Village Land" Mr. Kassim submitted further

that, as per Exhibit P2, it may appear that the Appellant was given the disputed land ·by the Village Economy Planning and Finance Committee, and it could also be true that this Committee had been established by the Village Council. However, in terms of Section 8 (4) of Cap.114, the Committee had no authority to allocate Village Land, but only to advice the Village Council on the management of the land, Mr. Kassim pointed out. If the basis of the claim by the Appellant is that he was allocated the disputed land by the Committee, then in terms of Section 8( 4) & (5) of the Act, Cap. 114, the allocation was illegal, Mr. Kassim opined. Since as per Section 8 (5) of Cap.114 every Page 12 of 20 (. allocation by the Village Council is to get the approval of the Village ( Assembly. Mr. Kassim submitted the essence of Section 8(5) of Cap. 114, which subjects the allocation of Village Land to the approval of the Village Assembly, was for the Village Assembly to be convened to deliberate on the allocation of the disputed land to the Appellant by the Village Economic, Planning and Finance Committee to see if it was proper or improper. Looking at the proceedings and the exhibits, the Village Assembly was convened and the Villagers deliberated on the allocation and finally reached a decision that the Village land belongs to the 2nd Respondent as per Exhibit D1. As per the evidence of the

2nd Respondent, the dispute was first submitted to the Ward Executive Officer of Nyahongo, then the 2nd Respondent went to complain before the District Commissioner for Rorya who ordered the Ward Executive Officer (WEO) to resolve the_ dispute. Mr. Kassim submitted further that, the act of the District Commissioner to order the Ward Executive Officer (WEO) to resolve the dispute was within the law and therefore what the District Commissioner did was not against the law, since Section 8(3)(b) of Cap. 114 gives authority to District Commissioner to give orders to ensure that peace is maintained in his area of jurisdiction. The directive of the District Commissioner was not illegal since he was to ensure that peace and tranquility is maintained in his area of jurisdiction, Mr. Kassim surmised. · Mr. Kassim submitted further that, in respect of the 2nd Respondent, the allocation was not new but only to confirm his testimony that he had built a house on the disputed land since 2006. At page 23 of the typed Page 13 of 20 ·( . proceedings, the 2nd Respondent stated that, "the suit land belongs to our ( . family and I have built my house. r/ According to Mr. Kassim, what was done in terms of Exhibit D1 and Exhibit 02 was not a new allocation but it was to confirm that the disputed land belongs to the 2nd Respondent. Having looked at Exhibit 01, Mr. Kassim further stated that, the

allocation of the disputed land to the Appellant was not proper because it was done while there was ·a family of the 2nd Respondent who was living there. Responding to the 2nd and 3rd grounds of appeal, Mr. Kassim stated that the trial Chairperson did not consider the evidence on record in reaching his decision that the di~puted land belongs to the 2nd Respondent. Mr. Kassim stated further that, he has gone through the letter on which the Appellant lays claim that he was allocated the land, and could not find the signature or name of the 1st Respondent, which is totally different from what the learned Counsel for the· Appellant stated. The said letter was authored by the Office of the Committee of Planning and Finance by three persons, namely; Kayanda Francis. (Chairman); Naftal Ndege CD/Secretary) and James Nyangi (Member). There is nowhere the name; signature or stamp of the 1st Respondent appears on that letter. Thus, the allegation by DW1 that he allocated the disputed land to the Appellant on the 19/06/2013 does not bear any truth .. Responding to the argument by Mr. Tuguta that, the Chairperson failed to consider the evidence of the Appellant or record, Mr. Kassim stated that in principle Exhibit Pl has been· neg 9ted by Exhibit Dl, and which the Chairperson discussed it at page 3 and 4 of the Judgment when comparing Page 14 of 20 .. the two exhibits. Furthermore, the

evidence of the 2nd Respondent, DW2, ( that he built the house on the disputed land since 2006 has not been contradicted anywhere. Responding on the fourth ground of appeal, Mr. Kassim stated that, the record of the proceedings is very clear that the trial Tribunal examined the evidence on record, evaluated it and reached a decision. In the course of his submissions Mr. Kasim stated that, he has noted a procedural matter though not among the grounds of appeal, that the 1st Respondent who is a Local Government entity has not been served with the statut~ry of one month of intention to sue as required under Section 190(1) of the Local Government District Authorities) Act, [Cap.287 R.E.2002]. Mr. Kassim submitted further that there was no such Notice given to the Local Authority of the intention to sue it. Mr. Kassim prayed that for the foregoing ~easons, the appeal be dismissed for lack of any merits and the ownership of the disputed land by the 2nd Respondent be confirmed as per the decision of the District Land and Housing Tribunal of Tari me and the Respondent be paid his costs. In rejoinder, Mr. Tuguta stated that, it is not true that the Appellant gave t~ree versions of how he got h\s land. At page 9 of the proceedings the Appellant stated that he was allocated the disputed land by the Village Government, which land had been left empty by Okello Otieno. The fact. that, the

Appellant was given the land by the Village Economic Planning and Finance Committee was stated by the Chairperson of the trial Tribunal. The Chairperson would have been influenced by Exhibit Pl, which was a ~ Page 15 of 20 letter from the said Committee, handing over (kabidhi) not allocate C (kugawa) the disputed land to the Appellant. Mr. Tuguta submitted further that, there was no new allocation but the 2nd Respondent was being _h.anded back his area. The learned Couns·e1 for the Respondent did not tell the Court which organ allocated the land to the 2nd Respondent in the so called first allocation, when and with which evidence. As per the record, the 2nd Respondent had never previously been allocated the disputed land before that which was done by Ward Executive Officer (WEO). At page 14 of the typed proceedings, the Assessor, Mrs. Nyirambe, when she put a question to PW2, Chairman of the Village, PW2 responded that, the application by the 2nd Respondent to be allocated the land was not accepted because he was from another Village. At page 24 of the typed proceedings, DW2, the 2nd Respondent, while b_eing cross- examined by the Appell~nt stated that the disputed land belong~d to his father, but at the material time his father was living in another Village of Ryagati. Mr. Tuguta conceded that, as per Section 8(1) & (2) of the Village Land Act, Cap. 114 R.E. 2002, the Village

Council is responsible for the management of Village land. Mr. Tuguta conceded further that, as per Section 8(5) of the same Act, the Village Council is· the organ with authority to allocate land to applicants, subject to approval of the Village Assembly. Mr. Tuguta believes that, the Appellant was allocated the land after the requirements had been met. Thereafter, the Village Economic, Planning and Finance Committee handed over the land to the Appellant. According to Mr. Tuguta, Section 8(4) of the Act authorizes the Village ~ Page 16 of 20 Council to Establish Sub-committees to assist it in the Management of ( Village Land. Mr. Tuguta submitted further that, as per Section 8(5) of the Act, Cap. 114, the function of the Village General Assembly is to approve recommendations by the Village Council of allocation of land to Applicants; and not to allocate land. Aside from the fact that the law does· not expressly state what the Village Assembly is supposed to do where an authority with powers to allocate land fails to do so, in practice it was for the Village Assembly to require the Village Council to do what it was supposed to do. Mr. Tuguta submitted further that, the argument by Mr. Kassim that the evidence that, the 2nd Respondent built a house on the disputed land has not been contradicted is not true. Mr. Tuguta referred this Court at page 29 of _the trial proceedings,

where DW4, Nafta~ Ogutu while being cross- examined by the Respondent stated that the 2nd Respondent has no house at the disputed land. This probably could be the ·reason why the trial Tribunal when Visited the locus in quo could not say if they saw any house, Mr. Tuguta supposed. On the issue of Notice of Intention to sue, Mr. Tuguta stated that, he has gone through the record, but could not find the said Notice. Mr. Tuguta stated further that, the issue was to have been raised at the trial Tribunal but did not. On the respective arguments by learned Counsels for the parties, it is trite that I deal with start_ with matters touching the jurisdiction of this Court to entertain this appeal. It was the argument of Mr. Kassim that, the Page 17 of 20 ~ J •' .. . ',. suit against a local government essentially acts as a bar to Courts of law to ( entertain suits involving such authorities where such Notice has not been served on them. Therefore since the issue of written Notice of Intention to ·sue a local government authority as envisaged under section 190 (1) of the Local Government (District Authorities) Act touches on matters of the. jurisdiction of Courts or Tribunals to entertain suits against local government authorities it therefore goes to the root of the suit itself and as such it can be raised at any stage of the suit, even on -appeal as it was ably stated in the Mandama

vs. Sigh [1965] E.A 118. It is for the foregoing reasons this Court finds that; the issue of notice of intention to commence the suit against the Local Government Authority (WEO) was properly raised by Mr. Kassim for the Respondent at this stage. The finding of this Court is that, the 1st Respondent, Afisa Mtendaji Kata ya Nyahongo (WEO) is a Go'-'.'ernment Officer working with the Local Government Authority. The Appellant therefore ought to have issued the 1st Respondent with the statutory one month written notice expres~ing his intention to commence the instant suit which gave rise to this appeal. As Mr. Tuguta rightly conceded, the mandatory statutory written notice of intention to commence the suit against the Local Government Authority, to wit, the 1st Defendant was not issued. This Court further observes that, in order to sue the Ward Executive Officer (WEO), the District Executive Director (DED) must also be joined for execution purposes of the resultant Court Decree, lest it will- be rendered nugatory" as WEO lacks the powers to execute Court decrees. . Evidently in the instant case, the District . Executive Director (DED) was not joined as a party to the suit before the trial Page 19 of 20 ~ Tribunal. Consequently, the proceedings and the decision of the trial ( Tribunal are nullity abi initio and the same must be quashed as I hereby do. In my considered view, the

issue of lack of jurisdiction of the trial Tribunal for want of written notice of intention to commence a suit against . . a local government alone would have sufficed to dispose of the entire appeal. That being the case therefore I do not find it useful to proceed to determine the remaining .grounds of appeal as set out by the Appellant and very ably argued by the learned Counsel for the parties in support and . rival, since in the end result the Judgment would not have had legs on which to stan,d. It is for the above reasons that, this appeal succeeds but only to the extent as shown herein above. The .proceedings and the decision of the District . Land and Housing Tribunal of Tarime District at Tarime in Land Case No. 89 of 2013 are hereby quashed and set aside. Any party still· interested in pursuing the matter in any competent Court of law or any other relevant authority is still at liberty to do so but in accordance to law. The circumstances of this suit and the situation of the parties are such that, I shall not make any order as to costs. Each party shall therefore bear its own costs i · eal. It is so ordered. R.V. MAKARAMBA

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