20151208 TZHC Dodoma

. . - IN THE HIGH COURT OF TANZANIA AT DODOMA MISC. LAND APPEAL NO. 63 OF 2011 (From decision of the District Land and Housing Tribunal of KONDOA District at KONDOA In Land case/Land application No.42 of 2011). H AuDI MAULIDI ....................................................... APPELLANT VERSUS IVIOHAMED GITI Y'ADI ............. .........................I....I.RESPONDENT JUDGMENT 271h November & 081h December, 2015. MRANGO, J. The appellant Halidi Maulidi has brought this appeal against the respondent Mohamedi Giti Yadi and the appeal was filed in this court on 15/7/2011. The appeal is against the decision of the District Land and Housing Tribunal for Kondoa of which the Judgement was delivered on 23d day of June 2011 in Land case appeal No.42 of 2011 which is originated from Criminal case No. 17 of 2011 Kikore Ward Tribunal. Briefly, the background of this case is that, on 24th day of January 2011, the appellant Halidi Maulidi was charged before Kikore Ward Tribunal with an offence of jqiminal trespass and destruction of property. It is alleged that, the accused person (appellant) unlawfully 1 did enter into the farm of one Mohamedi Giti Yadi ( Respondent) and did destroy sunflower crops the property of Mohamed Giti Yadi. The accused person denied the charge when read over to him as a result the prosecution side through the complainant Mohamedi Giti Yadi called a total of three (3) witness so as to prove the offence. After the full trial, the prosecution side, failed to prove its case to the required standard as a result the accused person was acquitted forthwith. The complainant Mohamed Giti Yadi was aggrieved by the decision of Kikore Ward Tribunal and lodged an appeal before the District Land and Housing Tribunal for Kondoa and one Halidi Maulidi (accused) lost the case. When the District Land and Housing Tribunal was delivering its impugned Judgement, the learned Chairman had following remarks and I quote: "In the event, I quash and set aside the decision of the lower Tribunal and accordingly enter a declaration that it is appellant who is the oughtright owner of such land having been legally allocated by the village Government. Appeal allowed with costs." SGD- N. NDIMBO CHAIRMAN 23/6/2011 2 t S It is out of this kind of decision pushed the appellant to lodge this appeal. The appeal is against the whole Judgement and decree on the following ground of appeal:- That, the District Land and Housing Tribunal for Kondoa, erred in law and in facts in entertaining the appeal on a matter which glaringly originated from a criminal case in the Kikore Ward in Kondoa. That, the District Land and Housing Tribunal for Kondoa erred in law and in facts in stating the claim in the Ward Tribunal of Kikore Ward was that of ownership of land. In the alternative but without prejudice to the foregoing grounds of appeal. That, the District Land and Housing Tribunal for Kondoa erred in law and in facts in holding that the allocation of the Land used by the appellant allocated by the Mitati village authority was double allocation in the circumstances. That, the District Land and Housing Tribunal for Kondoa erred in law and in facts in not holding that the piece of land allocated to the appellant by the Mitati village authority was Un-utilized vigin land which remained Under the control of the village authority. That, the District Land and Housing Tribunal for Kondoa erred in law and in facts in mixing up the doctrine vigin land with that of abandoned land in his Judgement. 3 That, the District Land and Housing Tribunal for Kondoa erred in law and in facts in holding that the allocation of the piece of land by the village authority to the appellant is null and void. That, the District Land and Housing Tribunal for Kondoa erred in law in facts in condemning the appellant to costs in the Circumstances. The appellant wherefore prayed for the appeal be allowed by restoring the decision of the Kikore Ward Tribunal with costs. When this case was called for hearing, Mr. Nyangarika learned counsel appeared for the appellant, while the respondent appeared in person, unrepresented. Addressing the first ground of appeal Mr. Nyangarika learned counsel for the appellant submitted that, the Kikore Ward Tribunal record shows that the case before it was a criminal case No. 17 of 2011. The Judgement itself indicates the matter to be criminal case. However the District Land and Housing Tribunal changed the criminal case into land case when it came for appeal. The chairman has no jurisdiction to try criminal appeal cases. The issue before the Ward Tribunal was a criminal trespass and destruction of property. On the Second ground of appeal, Mr. Nyangarika learned counsel submitted that the chairman District Land and Housing Tribunal on his first page of Judgement was of the view that the issue for consideration was sunflower destruction however on the same page of the Judgement considered the issue of double allocation. The Chairman had no jurisdiction to try a case on the issue of property 4 destruction and prayed for this court to nullify the decision made by the chairman District Land and Housing Tribunal for Kondoa. In the alternative, Mr. Nyangarika learned counsel submitted that the available evidence tendered in the Ward Tribunal is that of the appellant. The respondent opted to ran away before he tendered the evidence to establish ownership and the evidence in the Ward record shows that the appellant was allocated the land in dispute by the village authority while it has never been worked upon before. He further submitted that the chairman District Land and Housing Tribunal cited Section 45 (1) (a) of the village Act No.5 of 1999 RE 2002 and associated it to be land tenure under customary law. That was a misconception. The land in issue is not a customary land tenure, rather it was a village land which its control is Section 8 (3) (a) of the village land Act Cap 114 RE 2002 which gives authority the village land authority to manage the land as per utility. The doctrine of abandonment is non-existence in this case at hand. Mr. Nyangarika finally submitted that the appellant was properly allocated the land in dispute as per the testimony of the village Executive officer who testified before the Kikore Ward Tribunal and he prayed for the appeal to be allowed with costs. On the other side, the respondent Mohamedi Giti Yadi submitted that the appellant trespassed into his land and caused crops destruction and he does not know whether the case before the Ward Tribunal was criminal or not, and if was recorded as a criminal 5 case, he prayed for the case to be nullified and the same to start afresh. Briefly, that is what transpired in this case when it was called for hearing. The issue for determination in this case is whether the appeal has merit or not. From the submission by the learned counsel Mr. Nyangarika and the respondent who appeared in person, and from the grounds of appeal lodged in this case and the perusal of the lower Tribunal records, I will dispose of this appeal on the basis of the first and second grounds of appeal only. I have no reason to go to the 3rd , 4th and 5th grounds which were filed as an alternative to the first ground and second ground of appeal. It is a trite that the Court or Tribunal must always be satisfied that it has jurisdiction to determine the matter before it. Jurisdiction is a fundamental issue that the court and Tribunal must consider whenever the matter comes before the trial Magistrate, Judge or chairman. Halsbury's Laws of England, 4th Edition, Reissue Vol. 10 para 314, defines jurisdiction as follows: "By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to the recognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or Commission under which the court is constituted and may be extended or restricted by similar means." Mindful, the criminal litigation in Tanzania is governed by the Tanzania Criminal procedure Act, Cap 16 RE 2002 and any other criminal Laws when the case is before the subordinate courts up to the Tanzania court of appeal. The Primary Court is governed by the Primary Court criminal procedure and the Magistrate court Act Cap RE 2002. The District Land and Housing Tribunal is governed by the Land Disputes Court Act Cap 216 RE 2002 to mention the few. The procedure is therefore clear that's why the land Tribunals deals with matters in relation to the land disputes and normal courts deals with other cases of which they were conferred jurisdiction by laws. The District Land and Housing Tribunal has no jurisdiction whatever to deal with issue which are criminal in nature. In the case of DESAI V. WARSAMA (1967) EXA 351 at page 352, Hamly, J had remarked: "The fundamental point which must have Primary consideration in this appeal is the question of whether the Primary court had jurisdiction to hear the case at all, for if that court lacked jurisdiction in the matter, then the whole proceedings were a nullity and there was, in law no decision against which any appeal can be taken." In the instant case, the appellant was charged with criminal offence before Kikore Ward Tribunal. After the consideration of the evidence before the Ward Tribunal he was acquitted for lack of 7 evidence. However, in appeal, the chairman District Land and Housing • Tribunal changed it to land appeal. He blutantly Ignored that the matter before the Tribunal was a criminal one. He didn't give reasons as to why he acted the way he did. The Ward Tribunal record shows that there was a charge sheet ( shitaka) and the case was recorded as a criminal case NO. 17 of 2011 (shauri Ia jinai No. 17 of 2011) Parties were considered or rather referred complainant and accused person ( Mashahidi wa Mshitakiwa) and the accused is acquitted ( Mshitakiwa anaachiliwa huru). With all these in record, the chairman District Land and Housing Tribunal Kondoa treated the appeal as land appeal case and declared the respondent the righiful owner of the land in dispute. The decision of the chairman is tainted with a lot of an answered questions and doubts. He opted to shut his eyes on a open clear sunlight to see what was before his table. He had no jurisdiction to try criminal appeal case which was purported to be a land appeal case before the District Land and Housing Tribunal . The proceedings before Kondoa • District Land and Housing Tribunal for Kondoa are hereby declared to be nullity. The appeal is therefore allowed with costs. It is so ordered. . h5&-- (D. E. MRANGO) JUDGE 08/12/2015 Ei • Right of Appeal Explained. (D. E. MRANGO) JUDGE 08/12/2015 Delivered today the 08th day of December, 2015 in presence of both parties in persons and Ms. Mnzava learned counsel for the appellant. (D. E. MRANGO) 'r JUDGE 08/12/2015 tt t 4