john kiwasira another vs mwatumu saidi senzia 2022 tzhclandd 831 29 april 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND APPEAL NO. 32 OF 2021 (Arising form and Appeoi No. 117of2019 Kibaha District Land and Housing Tribunai deiivered on 29''September, 2020, before Hon. S. L. Mbuga, Chairperson. Original Land Complaint No. 09 of2018 decided by Nia Njema Ward Tribunai at Bagamoyo, District)

JOHN KIWASIRA APPELLANT MUSSA OMARY 2"" APPELLANT

VERSUS

MWATUMU SAIDI SENZIA RESPONDENT

JUDGMENT Date of0rder:29/03/2022 Date ofJudgment:29/04/2022 T. N. MWENEGOHA,J. This Is a second appeal by the appellants where they lodged their appeal challenging the decision of Hon. S. L. Mbuga, Chairman with four grounds that: 1. That, the two lower Tribunals grossly erred in law and facts when they failed to exonerate the second appellant from the case both at the Ward Tribunal and at the Kibaha District Land and Housing Tribunal as himself was a mere witness in the sale transaction date 10*" August,2018 between the appeilant o and One Mahamudu Abdallah Mohamed and himself had a separate land not In dispute at ail.

2. That, the two lower Tribunals misdirected itself both in law facts when accepted the typed copy of sale agreement tendered by the respondent while the two had executed a hand written sale agreement as pointed out in the trial by Abdul Shabani and the ten-ceil leader Jumanne Kisiga who were respondent's witnesses.

3. That,the Chairperson of the Kibaha District Land and Housing Tribunal grossly erred in law and facts when failed to nullify the Ward Tribunals judgment by holding that,the value of the suit land is that one stated by the who instituting the suit and that value determines jurisdiction while there were a lot of discrepancies on evidence between the respondent and her witnesses Jumanne Kisiga and Abdul Shabani.

4. That, the first appellate Tribunal, Kibaha District Land and Housing Tribunal erred in law when it omitted it failed to interfere with the Ward Tribunal's findings while there was vivid evidence that the ward had acted on a wrong principle when it was assessing the recorded evidence. The appellants prayed to this Court for Appeal to be allowed, for the proceedings of both lower Tribunals to be nullified and its judgments be quashed and for the matter to be tried de novo and costs. f? The appellants were represented by advocate Peter Madaha while the respondents never entered appearance nor filled their written submissions hence an order to proceed exparte against them was issued. Hearing was conducted through written submissions. In their submissions, the appellants dropped their 2"'^ ground. The appellants started submitting on the 3'^" ground, where It was argued by their advocate that the Chairperson of the KIbaha District Land and Housing Tribunal grossly erred In law and facts when he failed to nullify the Ward Tribunal's decision by holding that, the value of the suit land Is that one which Is stated by who Is Instituting the suit and that value determines jurisdiction while there were a lot of discrepancies on evidence between the respondent and her witnesses Jumanne KIslga and Abdul Shabanl. That, the trial Ward Tribunal of NIanjema In Bagamoyo had no

pecuniary jurisdiction to entertain and determine the matter Shaull la Madal na 09/2018 as the value of disputed land was above Three Million Tanzanlan Shillings. That, the value of the disputed land Is Twenty-Two Million Tanzanlan Shillings only (Tshs. 22,000,000/=). It was further the advocate for the appellant's argument that the Issue of jurisdiction Is a fundamental matter which can be raised at any stage of the proceedings even on appeal by any party or by the court Itself suo motto and must be decided before the court decide any other Issues or matters as was held In the case of Richard Julius Rukambura vs. Issak Ntwa Mwakajua and another, Court of Appeal of Tanzania, Civil Application No. 3 of 2004, at Mwanza (unreported) following Its & previous decision in Fanuel Mantiri Ng'unda vs. Herman Mantiri Ng'unda and 20 others, Court of Appeal of Tanzania, Civil Appeal No.08 of 1995(Unreported). It was further the submission of the appeiiants that the pieadings (saie agreements) presented by the parties and evidence adduced shows that the value of the disputed land exceeds three miiiion. Aii the Saie Agreements together show that the vaiue of the disputed iand is Tshs 22,000,000/= (Twenty-Two Miiiion). That, the said iand was soid to many peopie including Mahamudi Abdaliah for Tshs 4,000,000/= (Four Miiiion) bought from John Peter Kiwasila on 28 August, 2018. That, the

evidence in the triai ward tribunai shows that the area was sold for the second time to Mohamedi Abdaiiah for Tshs 4,000,000/- (Four Miiiion) which is over and above the jurisdiction of the ward tribunai. That the saie agreement was tendered in the tribunai as evidence to prove the saie and it was not objected. The appellants further argued that other sale agreements were presented in the Triai Tribunai as evidence and formed a vaiue of Tshs 22,000,000/= (Twenty-Two Miiiions). That the Kibaha District Land and Housing Tribunai ignored that evidence in record by upholding the proceedings and judgment of the Triai Ward Tribunal instead of nuiiifying it and order for the matter be heard at the District Land and Housing Tribunai, as it is the competent tribunai with pecuniary jurisdiction to hear and determine the matter. To them, this is a serious error and irreguiarity. >7 In supporting Ground No. 4, the appellants submitted that the trial ward tribunal of NIanjema In Bagamoyo entertained application No 9 of 2018 without constitution of Coram members In some dates scheduled for mention and hearing as required by law. They submitted that for example on 24 September 2018 both parties appeared and there was secretary only but no any other member of the ward tribunal who appeared. Further that there are other dates such as 06'^ December 2018, 24"^ January 2019, 04"^ February, 2019

and 21=^ February, 2019 where the matter proceeded for hearing but no any member of the Ward Tribunal participated In the hearing, only the secretary of the ward tribunal Neema W. Mkombozi appeared and controlled the proceedings. That, this Is contrary to the provision of Section 11 of the Land Dispute Courts Act Cap 216 R. E. 2019 which provides that and the consequences of such Irregularities In the ward tribunal's proceedings Is to render the decision to be a nullity. It was further submission from the appellant that on some dates of the hearing of the matter the Coram of members of ward tribunal was not properly constituted as there was no gender Involvement In the hearing which Indicate a female or male gender member In coram. The said dates are 13/09/2018, 17/09/2018, 15/10/2018, 05/11/2018, 12/11/2018, and 29/11/2018. That the members participated are Haslllmu J. Dengwa, SIvljul R. Madlnda, PHI A. Sumayl, Masha S. Amour,Isldorl J. Mwepongwe, however, there was no indication of their gender. In support of Ground No.l the appellants argued that the two lower Tribunals grossly erred In law and facts when they failed to exonerate the second appellant from the case both at the ward tribunal and at the KIbaha District Land and Housing Tribunal as he was a mere witness In the sale transaction dated 10'^ August 2018 between the appellant and one Mahamudu Abdallah Mohamed and

himself had a separate land which was not In dispute at all. That the second appellant gave his testimony before the Ward Tribunal and Informed It that he was a mere witness of the sale transaction dated 10"^ August, 2018 between John KIwasIra and Mahamudu Abdallah Mohammed. That In this scenario Mahamudu Abdallah Mohammed was required as one of the parties before the ward tribunal as a necessary party but both the ward tribunal and the District Land and Housing Tribunal Ignored that vital piece of evidence. It was the appellant's prayer that the appeal be allowed with cost, the proceedings and judgments of the lower tribunals be declared null and void and the Court to order for rehearing of the matter. I have gone through the records and submissions before me. After considering the facts of the case and arguments of the appellants I find that the arguments advanced In support of all grounds of appeal lacks merit for the reasons adduced below. I will start addressing the grounds In the same order as advance by the appellant. Starting with ground number 3, the appellant argued that the Chairperson of the KIbaha District Land and Housing Tribunal erred in law and facts by failing to nullify the Ward Tribunals'Judgment due to pecuniary jurisdiction. It was his further argument that the value of the suit land at the Ward Tribunal exceeds three million shillings. After going through

the records submitted on the issue, I agree with the District Tribunal's findings, which analyzed why they refused this ground. First, that there was no backup evidence to show the value of disputed land as contended by the appellant herein. Secondly, that the one instituting a case is the one who knows the value of the land. That,the respondent herein gathered all the information and after being satisfied with the value of his property he was satisfied that the Ward Tribunal could try his case. Therefore, if this was disputed by the appellant herein at the Ward Tribunal, he had a duty to object. That raising the issue thereafter at the District Tribunal is an afterthought. Therefore, this ground of appeal cannot stand. In addressing ground number 4 with regard to irregularities in hearing of the matter. After going through the records, I found that the dates complained by the appellants that hearing proceeded without assessors were not the dates of hearing. It is noted that from 24/9/2018 to 25/10/2018 hearing had not commenced. Hearing commenced on 12/11/2018 and according to the records on the 6/12/2018 and 24/1/2019 the matter was adjourned. Hence all these dates that were complained to be heard without assessors were not dates of hearing of the matter. Moreover, I have also gone through the Court records to ascertain the complaint about the Corum of the Ward Tribunal. Even

though I did not engage a name expert, I was able to clearly identify a female name from the list. This being the case, I was able to ascertain that the coram constituted both maie and female members. I find these grounds of appeal are an afterthought as complaints should have been raised at District Tribunal. In addressing Ground 1, that the respondent should not have sued the appellant herein, I find that the decision of who to sue lies to the person suing. The Tribunai's duty was to pass verdict in consideration to the evidence adduce before it. The records shows that the verdict was not against him. Moreover, as pointed before these complaints should have been raised at the District Tribunal. It is therefore the finding of this Court that all grounds of appeal lack merits and henceforth the appeal is dismissed. No order as to cost. T, IWENEGOHA

JUDGE 29/04/2022 -7 /-^/VTSlO$