20151214 TZHC Dodoma1

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DODOMA MISC. LAND ASE APPEAL NO. 34 OF 2012. (From the dedsion of the District Land and Housing Tribunal of KONDOA District at KONDOA In Land case Appeal Nail and Original Ward Tribunal of KIKORE Ward in appilcation No. 4 of 2010). HALIFA AYUBU SALIMU & OTHERS............................APPELLANTS VERSUS H ALl DI H USSEI NI KIJ U U.......................................RESPONDENT JUDGMENT 02nd December & 14 11 December, 2015. MRANGO, J. This appeal arises from the decision of the District Land and Housing Tribunal of Kondoa for Kondoa. The appellants Halifa Ayubu Salimu, Bakari Selemani, Tataa Tahani and Hamisi Athumani has brought this appeal against the respondent Hamadi Hussein Kijuu and the appeal was filed in this court on 11/10/2011 against the decision of the District Land and Housing Tribunal of Kondoa which was delivered on 181h day of August, 2011, in Land Appeal case No.11 of 2011. The same is arising from Kikore Ward Tribunal Criminal case No. 04 of 2010. 1 - When the District Land and Housing Tribunal was delivering its impugned Judgement, the learned Tribunal chairman had the following observations which I quote: All in all, it can not be controverted that in 1984 the appellant cleared the virgin forests in no man's land. All his three witnesses, Hamadi Iddi Msii, Bombo Birauri and Hamadi Hussein, fortified the appellant statement in that he acquired that land in the stated year. To wind up, it is true the appellant leased to use that land in 1999, but that in itself does not bar him to claim for his lands on invasion. If at all the proceedings were instituted after twelve years, legally speaking, the appellant would be barred by the effluxion of time. In the upshot, I accordingly quash and set aside the decision of the Ward Tribunal and allow this appeal with costs. It is so ordered". SGD-N. NDIMBO CHAI RMAN 18/8/2011 It is out of this decision which led the appellants to come to this court and lodge this appeal. The appeal is against the whole Judgement and decree on the following grounds. 1. That, the District Land and Housing Tribunal Chairman who sat as an appellate chairman erred in law and fact in reversing the decision of the lower Tribunal without any genuine ground as the respondent failed to establish the size of the land he was claiming. That, the appellate chairman erred in law and in fact in not putting in consideration that it was dangerous exercise to grant ownership to the respondent without proof of the size and how he acquired such land, it might extend to even to more than a half of village land. That, the appellant chairman failed to know that the respondent chose to sue the appellants who were in the four corners of the land in dispute which engulfing about two hundred (200) people with their fields inside there measuring about five hundred twenty seven acres (527) That, the honourable appellate chairman failed to consider evidence of the appellants who informed the tribunal that they were allocated the land of their field by the village council. That, the honourable appellate chairman erred in law and in fact in failing to consider that the village council has the mandate of allocating land to its residents and supervising in the village. That, the honourable appellate chairman erred in law and fact in failing to consider the circumstances to the land which was left fallow for a period of twenty 3 years beginning from 1990 to 2010 the land which hand no permanent crops still the respondent to have title. 7. That, the honourable appellant chairman erred in law and fact in holding that the respondent had still title to the disputed land failing to consider the growing need of the society such as young who have attained eighteen years or more to be provided land by the village for their development. The appellants wherefore prayed for this court to quash the decision of the District Land and Housing Tribunal and restore that of the Ward Tribunal with costs. When this appeal was called for hearing, Mr. Lussa learned counsel appeared for the appellants, while Mr. Kidumage learned counsel advocated the respondent. Addressing the first ground of appeal, Mr. Lussa, learned counsel for the appellants submitted that the matter before Kikore Ward Tribunal was a crimlnal case No. 4 of 2010, and it is indicated so on the first page of the Ward Tribunal Judgement. The Ward Land Tribunal has no jurisdiction to try criminal matters and even the respondent has never testified before the ward land Tribunal however he has called witnesses in the names of Hamadi Idd Msii, Bomboo Bilauri and Gitigagana. One Hamadi Idd Msii mentioned the boundaries and the neighbours who were sharing the bounderies but didn't tell the Ward Tribunal what was the size of the land in dispute, and the second witness Bomboo Bilauri gave identical testimony however Gitigadan stated that he was a tenant in the suit land from 1989- 4 1988 but didn't mention what was the size of the suit land he was cultivating, however the ward Tribunal after it has visited the suit land and measured it, it has realized to be 527 acres. On the second ground of appeal, Mr. Lussa learned counsel submitted that it is dangerous for a s ingle person to be allocated such a big land without proof from the village authority and on the third ground, he submitted that on the course of visit to the locus in guo it was realized that the land in dispute was the property of 200 people and not the respondent alone. Addressing the fourth , fifth and sixth grounds of appeals Mr. Lussa learned counsel submitted that it was the appellant's who was allocated the land in dispute by the village council and the village council is empowered to allocate land to the villagers under its jurisdiction. He insisted that the suit land was left fallow from 1990 - 2010 and there was no permanent crops on it for a period of twenty (20) years and following the demands by the young in the village, village council had good reasons to allocate the said land to various peOple whO Were in need for cultivation. On the other side Mr. Kidumage learned counsel for the respondent replied generally. However on the first issue of jurisdiction of the Ward land tribunal he submitted that it was a new issue which was not listed in the Petition of appeal before this court and it was not even raised at the first appellate District Land and Housing Tribunal. And even if it was not raised at the Ward Land Tribunal, the entire proceedings and Judgement of the ward tribunal cannot be treated as criminal case. They are reflecting to be land matter and the 5 irregularity which appears in the case file cover are curable under section 45 of the land disputed court Act Cap 216 RE 2002 and it has never occasioned any injustice on the party of the appellants. Mr. Kidumage learned counsel further submitted on the issue of the size of the suit land that the respondent cleared it and was tilting in and he had no reason to measure it despite dispute the fact that he knows the bounderies of the land under his possession. He therefore submitted that there is no evidence to prove that the land in dispute was allocated to the appellant by the village authority, and the land was left fallow from 1990-2010 and that suggests that the appellants were not in use of the suitland and the same were occupied and used by the respondent from 1984- 1999 and the village land council would not have mandate to allocate the said land which was owned by the respondent. He reffered this court to the case of Amani Rajabu Njula Vs Thomas Amri (1990) TLR 58 to support his submission. He is therefore of the view that the appeal is devoid of any merit and prayed the same to be dismissed with costs. When he was making rejoinder, Mr. Lussa learned counsel for the appellants insisted that the ward land tribunal had no jurisdiction to try criminal case and Section 45 of Cap 216 is not curable to the irregularity occasioned in this case as a result the proceedings and Judgement of the ward land tribunal is null and void and the whole exercise of criminal proceedings has denied the appellants their right of ownership of the suit land, and the respondent has never testified before the ward tribunal, how can it believed that he was in the suit land from 1984 - 1999. 6 That is what transpired in this court in a nut shell. The issue for determination now in this case is whether the appeal has no merit or not. Before I have to analyse the grounds of appeals lodged in this court and the submissions made by the learned counsels, I think I t wise and prudent first to consider the issue of jurisdiction raised by Mr. Lussa learned counsel for the appellants. In his submissions, Mr, Lussa learned counsel for the appellants submitted that, the matter which was before the trial ward land tribunal was Criminal case No. 04 of 2010 and the ward land tribunal has no jurisdiction to hear and determiner criminal cases. On the other side, Mr. Kidumage learned counsel for the respondents contended that, the said issue of jurisdiction is not among the grounds of appeal lodged in this court and cannot be entertained at this stage. However, even if the court is of the different view, the same is curable under section 45 of the land disputes court Act Cap 216 RE 2002. It provides: Sections 45 No decision or order of a Ward Tribunal or District Land and Housing Tribunal shall be reversed or altered on appeal or revision in account of any error, omission or irregularity in the proceedings before or during the hearing or in such decision or order or on account of the improper admission or rejection of any evidence unless such error, omission or irregularity of improper admission or rejection of evidence has in fact occasioned a failure of justice." 7 To my interpretation of the above provision of law the intention was to protect the error made on the omission made either during the admission or during the entire process of tendering and recording evidence, but is not intended to confer jurisdiction to the ward tribunal when it comes to the criminal proceedings. It is my settled view that the issue on jurisdiction may be raised at any stage of the proceedings and even at the appellate stage. My perusal of the District Land and Housing Tribunal record indicates that the said issue was raised but was not considered by the District Land and Housing Tribunal. In the grounds of appeal before the District Land and Housing Tribunal, the first ground of appeal presented by the appellant was as follow and I quote: 1. " That, the honourable Ward Tribunal erred in law by deciding the Criminal instead of Civil Case." The question which I am now posing is whether the Kikore Ward Tribunal had jurisdiction to hear and determine Criminal case No. 04 of 2010 which was filed before the Tribunal? There is no doubt that the case before the Ward Tribunal was a criminal case. The record reads: 1. Shauri Ia jinai No. 4/20 10 mlalamikaji Hamidi H. Kijuu. Washitakiwa. 1. Halifa Ayubu 2.Hamisi Athumani 3.Bakari Selemani 4. Tata Tahani Mshtaka- Kuvamia ardhi ya Mtu. The offence before the Ward Tribunal was a criminal trespass which is punishable by the Penal Code and the ward land Tribunal has no jurisdiction to deal with criminal cases. The general jurisdiction of the Ward Tribunal is Under section 13 (1) of the Land Disputes courts Act Cap 216 RE 2002 which provides. Subject to the provision of subsection (1) of section 8 of the Ward Tribunal Act, the Primary function of each Tribunal shall be to secure peace and harmony in the area for which it is established, by mediating between and assisting parties to arrive at a mutually acceptable solution on any mater concerning land within its jurisdiction. It is therefore my view 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 or Tribunal must consider at any stage to satisfy itself whether it is appropriate to hear and determine the case presented for adjudication. Halsbury's Laws of England, 4th edition, Reisse Vol. 10 para 314, defines jurisdiction as to the following effect. "By jurisdiction is meant the authority which a court has to decide matters that are litigated before or take. cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter 9 or commission under which the court is constituted and may be extended or restricted by similar means." In the instant case, the Kikore ward tribunal had no authority to litigate criminal offence presented before it for decision . That kind of cases are to be litigated by ordinary courts to be guided by the Criminal procedure Code Cap 20 RE 2002 and Penal Code Cap 16 RE 2002 and not otherwise. That being the position, the proceedings, Judgement and decision of the ward tribunal of Kikore and that of the District Land and Housing Tribunal of Kondoa for Kondoa are nullity. I so declare. I have no reasons whatsoever to consider the rests of the grounds filed in this court for determination. There is no order as to costs is made. Itisso ordered. (D.E.MRANGO) JUDGE 14/12/2015 Right of Appeal Explained. (D.E.MRANGO) CL, JUDGE 14/12/2015 /L 4 10 Delivered today the 14th of December, 2015 in presence of Mr. Lussa learned Advocate for the appellant and Mr. Kidumage learned counsel for the Respondent. \D.E.MRANGO) p' JUDGE I 14/12/2015 11