20120224 TZHC Mwanza

~ . -~ . -.. ~:. . ··. _:_,·.;✓- , .......,) f \ .....,,.! ,_ IN THE HIGH COURT OF TANZANIA (LAND DIVISION) ATMWANZA MISC. LAND CASE APPEAL NO. 51 OF 2008 (From the Decision of the District Land and Housing Tribunal of Mara at Musoma District in Lanc:J. .Case Appeal No. 50 of 2007 and original Ward Tribunal of Kemambo in Tarime District in Application No. 2 of 2006~) FINIAS MWITA ................................................................ APPELLANT VERSUS HITRA SUBURYA .................. ~ ...................................... RESPONDENT JUDGMENT A.F. Ngwala,J. This is a third appeal by the Appellant one FINIAS MWITA MAGENA. The appellant was the original complaint in the appeal which was filed against the Respondent, ·one HITRA SUBURYA at the Kemambo Ward Tribunal in Tarime District. The appeal was instituted at that tribunal after the appellant had lost his case before the Village Council of Kerende. Aggrieved by the decision of the said Council he presented four grounds of appeal on 20.11.2006 which were entertained on appeal in cau~e No. 2/2006. The parties were heard and finally a decision was made by the Kemambo Ward Tribunal on 9/02/2007 which held as follows:- " Mzee Finias Mwita ambaye ni mlalamikaji ameshindwa kesi tangu lea tarehe 9/02/2007 kwa sababu alivyokuwa 1 . .-. .... '. ..... _ ,: ···':· -.::·•_; ,;.:>- . . . • ~- ,j anadai kuwa nyumba aliyonunua iko kwenye uwanja ,, aliyouziwa na kazi si kweli. Mzee Hitra Suburya ameshinda kesi kwa sababu nyumba iliyonunuliwa na mzee Finias Mwita ilikosewa ikajengwa ndani ya uwanja wa mzee ·Hitra Suburya, uwanja Na. 96. Kwa hiyo mzee Finias Mwita ametaarifiwa kumrudishia mzee Hit-ra Suburya gharama zote alizotumia na usumbufu wote. Endapo kama hakuridhika na uamuzi anayo nafasi ya kukata Rufaa tena. Sahihi ya mlalamikaji Finias Mwita ................................... . Sahihi ya mlalamikiwa Hitra Suburya. .. ............................ . Wajumbe wa baraza waothibitisha na kutatua mgog_oro wa uwanja huo na kuutolea uamuzi ni:- 1. Sylvester Matiko .... Mwenyekiti 2. Joseph Maseke ....... Katibu 3. Rebeka Amos ......... Mjumbe 4. Gati Menganyi ......... Mjumbe." It is against this original decision of the purported appeal to the Ward tribunal, which was confirmed by the District Land and Housing Tribunal on 15th February, 2008 that the Appellant Petitioned to this Court on 1 st March 2008 on grounds that:- 1. The Chairman who presided over the matter registered at Musoma lacked jurisdiction .because he was a Chairman of Tarime. 2 .' ,, 2. The appellate District Land and Housing Tribunal erred on point of law to negate the principle of equity in this matter. . 3. The Appellate Chairmen. failed to examine, apprehend and analyse the facts and evidence before wholesale agreeing with ward tribunal. 4. The District Land and Housing Tribunal erred in point of law by not giving reasons to support his decisions. At the hearing of this appeal Mr. Makowe the learned advocate who represented the appellant submitted that the judgment of Musoma, District Land and. Housing Tribunal arose from the proceedings of Tarime District Land and Housing Tribunal, and that the Decree of the Tarime District Court has been extracted from a judgment of the Musoma District Land and Housing Tribunal, then, this is a serious irregularity that cannot be remedied under the provisions of Section 45 of the Land Disputes Courts Act [Cap. 216 R.E. 2002.] because its a question of jurisdiction of the courts, for neither the proceedings in Musoma nor the judgment registered in Musoma can feature in the proceedings of Tarime district. In reply; the Respon~ent who was unrepresented argued that, it is the same chairman who was in Tarime District Land and Housing Tribunal who heard the appeal in Tarime, and later upon being transferred to Musoma he took the file to Musoma, and heard the matter, and the judgment was delivered by the same chairman who started the case in Musoma and in Tarime District. 3 ,.. . : . ... . .- . .... ,·., ••• I' • ••• . ' ,,. ... · After hearing the parties in accordance with the provi~ions of Section 39(1) of the Land Disputes Courts Act, Cap. 216 R.E. 2002, the honourable gentleman and lady assessors who sat with me, were. of the considered. unanimous view that the aforesaid grounds of appeal and the submissions for and against the appeal, and the proceedings on record were p~rely legal matters for the · court's· decision only. Upon perusing all the records and proceedings involved in this appeal, it is imperative to remark at the outset that this matter seems to me to have been inadvertently handled. All the omissions and errors in the proceedings of the ward tribunal are inadvertent omissions by the parties and the Kemambo Ward Tribunal. From the. first day when the matter was instituted the. ward tribunal entertained and determined it as .an appeal from the Village Council: The appellant too appealed to the Ward tribunal after being dissatisfied with the decision of the Council, a fact which in particular is irregular under the Laws which have established these· Land Courts under the . provisions of Section 62 of. the Village Land Act, No. 4/1999. Section 167 of the Land Act, 1999 and Section 3 of the Land Disputes Courts Act,· [Cap. 216 R.E. 2092]. It must be understood that in this newly established Land Court System the Ward Tribunal has original jurisdiction only. It has no appellate jurisdiction on matters originating from the Village Land Council. If a person is aggrieved by the decision of the Village 4 Land Council which in essence mediates, a settlements he or she shall refer the matter to the Ward Tribunal or his remedy is by way of filing a fresh suit in the Ward Tribunal as per _Section 9 of the Land Disputes Courts Act, [Cap. 216 R.E. 2002]~ The second irregularity is that the proceeding of the Ward Tribunal are incurably defective. There is no. proper forum and format of the Proceedings, on the way and day the proceedings were recorded .. Worse, the composition and attendance of the members of the tribunal is not in accordance with the Mandatory Statutory requirements of the provisions of Sections. 11 and 14 of the Land Disputes Courts Act. The record does not show the names of the persons who were called as witnesses antj. their testimonies. These proceedings of the Ward Tribuneµ which were upheld by the District Land - and Housing Tribunal were so saturated with incurable irregularities that they make the judgment of both the tribunals a nullity. The judgment of the District Land and Housing Tribunal too leaves a lot to be desired, because besides the question of jurisdiction the chairperson never gave any reason to support his findings, nor did he ·analyse the proceedings, decision and the records of both the Village Land Council and the Ward Tribunal. It is for this reason that the proceedings and judgment of the District Land and Housing Tribunal of both Tarime and Musoma District Land and Housing Tribunal as clearly shown in this record are nullified for being founded out of a void decision. 5 ..::.·., . ; :: ·.- ~-;,· ~·:~-".:":°~: ~: -::~ -?<"t, . t __ ·:;.:.:. • - • •J..: . ,/' For the foregoing r·easons, I allow the appeal and quash the judgment of the District Land and Housing Tribunal. I also declare all the proceedings a. nullity. The appellant will have the costs · incurred by him in this court p11d in the tribunals. The appellant is , ordered to file a suit in the appropriate Court with competent · jurisdiction to determine this suit if he so wishes. ~ftAP -. A.F .Ngwala, JUDGE, 24/02/2012 . ......:- 6 \, 24/02/2012. • Coram. A.F. Ngwala,J. For Appellant Mr. Makowe. For Respondent Absent. Court: Judgment delivered in the presence of Mr. Makowe learned counsel for the appellant. Respondent to 1:?e notified. ~~Jf A.F .Ngwala, ("r!,_._,•:: JUDGE, ::c?fJ . ;~, 24/02/2012. ·'·.i:f 7