20160721 TZHC Dodoma

i.. ""-~ ..- •-,~-, .. 'II":": ~~. .. .:;.,·;-1. • ....... . . - -~. .• '~ - ·,: . . . ·. ' ,-~· ··_ ~-;• .:,-t? ·, ~.-. ·. ; . .· , . ;'. i. ·, •. • ..... , ·!:'.°·. ,N.TME HIG,ltC.()URT OF TANZANIA ·,.• .· ·~l, ~ ~- • . ~ . .;'. /t : ,;\' .. ~. '.• .i AT DODOMA iAN D CASE APPEAL' NO'- 16 O'f 20·11 ··. (From the Decision of the District Land and Housing Tribunal at KONDOA Di$trict at KON.DOA In Land Case No. 04 of 2010) FATUMA MOHAMEDI & ANOTHER--~-~---------- APPELLANTS · · VERSUS: liADIJA ALLY TALIA ____ ---···. -• ----- ···-··· .. . RESPONDENT

RULING .' ' Thf~ preserrt ·oppeol originates fro"rn the decision of the District Lahd:and Housing Tribunal (hereafter referred to as "District Land and .· Hous,lnci/tTrib0'n'a~r). The District Land cmd Housing Tribunal declared •· .· ~ .~-,1': '.ci1- . \ ~- .- ,::·. :~.:;,. " the respqhd$nf'to be the lawful owner of the disputed piece of Land -;-·' . .. -·.; .' • : ,? located at Olborot Village (hereinafter referred to as "the disputed Land"). Dissatisfied with such decision, the appellants have come to this court with three grounds of appeal. . . . For the reasons to be revealed hereunder, I will not dwell on the grounds of appeol raised by the appellants. The District Land and Housing Tribunal -when reaching to its decision heavily refied upon the · visit that is alleged to have be~n mad~ J;:iy\the District L a n ~ '.' Housing Tribunal. This Ts reflected from Pg. 3· to· 4 of. the Oistric:t Land -and Housing Tribunal decision._ It reods:- ·· .. . ·,.. 11 ---- I strongly believe the applicant is the owner of that land . .That vvitness wos even oble to identify the _area in dispute as that ''I'•• 1· where n1arket \•Vas suppos~d to be built, when we visited locus in quo. Another thing I noted is when we visited the site. We discovered that there are different people such as Juma Ndio, . . Hashim iddi who adrnifted that they bought pieces of land from ,•• ··.-•,, ·'•. ' the

applicant Equally at the scene we met the _elderly man, Issa. . . . Mtokana , vvho ciileged that really the applicant sold some .• piece of land_ io fl\qse people. · . ., ... ... ·-. :;_,: ·•. •. ,• I ''. ~: • We olso saw· the hous·e built by the buyers:::·tf so,- I wandered ' why the first respondent never: sued those people if truly :-thot · land belongs to' . her.-. . IJ. should . be re~membered-.-thaf·the .. . ji~~f respondent -olleged that the disputed land is ·:1. \/2 . . :~er~ . ·-:-_ in size,. and in another qccasion he said the disputed landisy~easured 40/176 in size. :... _;, . But at the scene we discovered the area that was sold by the first respondent to the second respondent was measured 36 :-J ·: .. feet's in width and 41 :Feet's in lengths. We further found out . from. the first respondent when we vi?ited the site the other areas were so,ld by th~/~,~plicant to those perso~ . .. ·~_i't .. ' . . 2 Thot being the. fact; it: does riot ·make sense how could a person remain quite if really his piece . of: land is invaded. Having so sqid there is no doubt in rny mind it is the applicant ••. . who is the owner of the area in dispute"~ •'•_.·, . . -·· From the "above passage, it is dear that the District Lond and ··. . •'. ·: . . . . Housing Tribunal relied hea~{ly on 'th~ site visH in' reaching tq :.Lts;,:;! .. decision. However, the records·of-'sL/ch visit is no

where· to be found.. , .... ' in the court records;- Ev,enJhe ·.· ',· sk$tch ·. . rn,:ip ,· ·of the. disputed area is.-rio :· ·,_ . : ,. '• ' where to be found in the file. In that reqa.rd, this _court invited parti.e_S>, ·· to adcJress it on the non- inclusion of the records of the visit of the loc.u:s fn quo. The 1st appelfant told thfs;·court, he was not ·involved at the, District Land and Housing Tribunal. So . . .~e_ ~~ows nothing about the:;.: . . : visiL_ He sot!d t--i~gnly secured the power of ottdrney cit the level of the High 'C:ovrt.·· . : '.: ·. The respondent -also informed this court that she did not attend the visit ·She said her da~Jghter named AmI~a Mahmoud was the one "• :• . . _. . . •'. ,,•. I. •. , . • ·: . ;_ . . .. who went to.th El Visi1··. together .... .. . with her counsel. Therefore, she knows ,·: ' . . ' nothing ab:o,ytthe visit. . . The 2nd Appellant said he was present and it was his view that it :was very irregular for the[?istrict Land and Housing Tribunal not, to . . include the records of the visit. He further said that he. was amused to . see in the records that PW3 was a witness for the respondent while . such witness wascalle.d by the 1st appellan~ . ' 3 .. .,.,...... -~•1\ ~ •••• · ,.J ,. . ~ ~ I 'totally agree vvith the 2nd appellant thdt the·noh..:ihcl.usion of the ., • • • I records of the visit of locus in quo was irregular: . I am

settled in rny · mind t.hat such irr~gularity. .· -· ... ·.·· occasioned . . . . . , a failure· of j~stice. . . . '. which . . ccmnot be overlooked as the records of the visit which Were heaY-ily: · . relied upon by the Distri.ct.'L~r1d' and Ho~sing Tribunal 'are nowhere~:O. , I .. be found in the court 're'cords. Since the records. :-of the visi't of. locus in. quo are not within t0e - • . .. . ~ := . court records and sir;1c:.~ -~u.ch _omission occasioned a miscarriage--:of.:·. ·•. •<· justice -then ln terrns of Section 43 ( 1) (b) of the Land Disputes Courts · Act, Cap. _216 I invoke ··-~ .. rny. -.revi$lonal . ... ' Jurisdiction . . by . quashing and . .- ' . . ' . . setting. aside the decision and orders made by the District Land and, . •.: _·, ~, . :: :_· . -(·'.-·· ;, ·. . ~-:(· No~ .-;4 of.:::'::. : , Housing Tribunal for Kon'doo at Kondoo in Land Applidati_or~ 2010. I fur.ther make an order·tl1.dt the application s~ot~:;d starf d~ no~o.: with an·other s·et of Tribwnal rnernbers and it should be dealfwifh expeditiously.. l make· ·:t'io· . bi'der :for·. costs : as . . . 'the :·mischief . . was· · . ' . · · · ·.. occasioned by i'he District Land and;_Housing Tribunal. It is so ordered . . ·. • 'i . ,.~ '". . . ~ ·: ·_,...-----(-1~-...,~'>--~ · c:\e~'-', , , . , t , · · ;:~:< . :.,_ . .,. :,',. - ; ~ 'l . ~ \ BJv\.A. Sehel

JUDGE '"'~ ~ ___. ,. . .., / 21s1·July, 2016 ¾:~~~ft' 4 . ,.ORDER .:Rufi~{g deliv~,:ed ih o~en COL~rt dt Dodoma in the_. presence ·of'alf . th~- par-fies'.: i.Jnder-'.'rny hand and S~al of th·e:·co·urt'this· 21 st day of July-,; . ' - ·.. ''.-: .. · 2016. ~ ' B.M.A._ Sehel JUDGE-- ' • ~. I , ·•.. '. .._ ;.,ft:;._! .·:>,;;<>> ' . .·' :-- ,,_., 5 .. .;:-. ·..:: .,,:,: . ...,..... '. ~-~~-:!~-.{~-~: _.,f. .,... --:_:.?~· ':it--" ·· .. ::, .. -~ ..... .,..·· -~~,: . ··-· \;'.f-i<•f'·· .i . : ._ .:_· ~:·~?:~-~' . .-..,_.,- .... ~-.",..: .