gidion mwakasege vs peter mwanjalila 2014 tzhc 2284 16 december 2014

IN THE HIGH COURT OF TANZANIA AT MBEYA MISCELLANEOUS LAND CASE NO. 22 OF 2013 GIDION MWAKASEGE........................................... APPELLANT VERSUS PETER MWANJALILA......................................... RESPONDENT JUDGMENT Date o f Last order: 08/12/2014 Date o f Judgment: 16/12/2014 A. F. NGWALA, J. This is an appeal by way of Petition of Appeal under the provisions of Section of the 38 (2) and (3) of the Land Disputes Courts Act, Cap. 216 R. E. 2002. The Appeal is against the Judgment and Decree of the District Land and Housing Tribunal for Rungwe which confirmed the decision of the Ward Tribunal of Msasani. In his Memorandum of Appeal, the Appellant has raised the following grounds:- “1. That the District Land and Housing Tribunal erred in law and fact to uphold the decision had validly bought the suit level from the Appellant’s Father. l 1 2. That the District Land and Housing Tribunal erred endorse the alleged sale in oblivion of lack of a valid approval of the relevant village council 3. That the District Land and Housing Tribunal erred to ignore the right o f redemption beslowed to the Appellant if indeed the Respondent had bought the suit land which being the common ground that, was the clan land. ” At the hearing of this Appeal, Mr. Mushokorwa the learned Counsel who represented the Appellant submitted that there was no evidence to prove that the Respondent had bought the disputed land from Andenile Mwakatige on 06/04/2006 as per the oral evidence. The purported Sale Agreement which showed that the sale was done on 05/04/2006 contradicted the evidence of the Respondent and hence the Respondent was not stating the truth. He pointed the other defect on the chit regarding the two witnesses listed on the Sale Agreement P. Mwakasege and R. Mwakasege who were not seen and who never appeared in the tribunal to testify. Mr. Mushokorwa doubted the authenticity of the said “Mkataba wa Mauziano” which Stephen Mwakudopa who had introduced himself as the Chief Executive Officer had denied to have signed as the Chief Executive Officer when cross examined by the member of the Msasani Ward Tribunal. Mr. Mushokorwa argued that the sale did not comply with the requirements of the provisions of Sections 8, 26 and 31 of the Village Land Act, Cap. 114 R. E. 2002. There was no approval of the 2 Village Land Council. Worse the Appellant as the care taker of the family was not involved in the sale of the clan land. For this reason Mr. Mushokorwa submitted that the right of redemption bestowed to the Appellant could not be ignored, because the Appellant had a right to redeem that clan land that was wrongly bought by the Respondent. The decision in the case of Athanas vrs. Benedicto [1983] TLR 370 was cited in support of this contention. In reply the Respondent submitted that the grounds and the submission by the counsel were not relevant because there was enough evidence before the ward tribunal that he had bought the “shamba” from Andimile Mwakatika on 05/04/2006. There were also leaders who witnessed the sale like PW4 and the Chief Executive Officer who witnessed the sale. As regards that sale, the Respondent argued that the sale was correct because the relatives of the late Mwakatika were present at the time of the sale. They included Daudi Mwakasege (Su6). The Respondent insisted that he bought the “shamba” from the children of Mwakamboja Mwakasege who are Andimile Mwakatika, Hanna Ngamilo and Sikanjamo Ngamilo. The Respondent contended the Appellant who is a grandson of Mwakambonja Mwakasege and the son of Andimile Mwakatika had no right to question about the sale because he was not a legal representative of the clan. He insisted the land that was sold belonged to Mwakambonja Mwakasege and not Mwakatika. The Respondent further denied all the allegations by the counsel and insisted that he bought the suit land legally. 3 Upon perusing the records of both the two tribunals, specifically the record of the Msasani Ward Tribunals, I have found muddled up proceedings, which are not in accordance with the Law. The provision of Sections 11 and 14 of the Land Disputes Settlement Act, Cap. 214, R. E. 2002 were not complied with. The Coram of the members was not in accordance with the provisions of the said Act which reads as follows “S. 11. Each Tribunal shall consist of not less than four or more than eight members of whom three shall be women who shall be elected by a Ward Committee as provided for under Section 4 of the Ward Tribunals Act, 1985. S. 14. (1) The Tribunal shall in all matters o f mediation consist of three members at least one o f whom shall be a woman. (2) The Chairman to the Tribunal shall select all three members including a Convener who shall preside at the meeting of the Tribunal. (3) In the event of the equality o f votes, the member presiding shall have a casting vote in addition to his deliberative vote. (4) The Ward Tribunal shall, immediately after settlement of a dispute record the order of mediation.” 4 Worse, in all proceedings its only the stamp of the “Katibu wa Baraza Msasani” which has been stampes. The last page of these proceedings contains only the signature of Mwenyekiti na Wajumbe Willy Mwakyusa na Sijitololoe. There is nothing in the record to show that the members were involved in the adjudication or mediation of this dispute. There no dates to show when the matter was heard or determined. The handwriting of the “Katibu” is illegible with a lot of Swahili spelling mistakes. Those irregular and unprocedural proceedings cannot in law be allowed to stand when it is known in law that procedure is the hand maiden of justice. The appellate tribunal or land Court could not have allowed such muddled up proceedings to stand. The Proceedings in the trial tribunal are so saturated with irregularities that they make the Judgment and that a Decision of that tribunal a nullity. For the said reason the said Proceedings, and all the Orders arising therefore are declared void. In the end result this appeal is allowed with cost, with further Orders that the parties if the so desire should institute their case in a court or tribunal of competent jurisdiction. Care should be taken to follow up in detail all the relevant procedures. It is so ordered. A.F. NGWALA JUDGE 16/12/2014 5 1 Date: 16/12/2014 Coram: Hon. A. F. Ngwala, J. Appellant: Present For the Appellant: Mr. Mushokorwa Respondent: Present For the Respondent: Unrepresented c/c Japhet Court: Judgment delivered in Court in the presence of the parties and their respective advocate. Court: Right of Appeal to the Court of Appeal of Tanzania explained. A.F. NGWALA JUDGE 16/12/2014 6