JOHN ONDIEK NYAKUYA JUDGEMENT 0001

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT - LAND DIVISION (MUSOMA SUB REGISTRY AT MUSOMA) LAND APPEAL No. 18778 OF 2024 (Arising from the District Land and Housing Tribunal for Mara at Tarime in Land Application No. 69 of2023) JOHN ONDIEK NYAKUYA........................................................... APPELLANT Versus TUMAINI STANSLAUS SANGO................................................... RESPONDENT JUDGMENT 27.02.2025 & 27.02.2025 Mtulya, J.: On 12th May 2023, Mr. John Ondiek Nyakuya (the appellant) had initiated proceedings against Mr. Tumaini Stanslaus Sango (the respondent) at the District Land and Housing Tribunal for Mara at Tarime (the tribunal) in Land Application No. 69 of 2023 (the application) complaining that the respondent had encroached his land located at Senta B Hamlet within Utegi Village of Koryo Ward in Rorya District, Mara Region (the disputed land). The appellant had described the land sized twenty-four (24) feet in width and fourteen (14) in length and valued at Tanzanian Shillings Fifty Million (50,000,000/=). The appellant was praying before the tribunal to be declared as a rightful owner of the disputed land. In replying the complaint, the respondent had registered a written statement of defence stating that the disputed land belongs to i the Government under the authority of Rorya District Council (the district council) and that the district council has been occupying the disputed for a long period of time without there being any complaint. According to the respondent, he uses the disputed land under lease agreement duly signed by the district council. The tribunal heard the parties and finally had resolved the application in favour of the district council. In the opinion of the tribunal, the land does not belong to neither party in the application. In its reasoning in favor of the decision, the tribunal stated that the evidence on record shows that the disputed land was within the compound of Utegi Bus Stand and was previously owned by the district council without any complaints being registered by any individual person or institution. The appellant was aggrieved by both the decision and reasoning of the tribunal and rushed to this court to lodge Land Appeal No. 18778 of 2024 (the appeal) complaining that the tribunal had resolved in favor of the third party and stranger to the application, which prejudiced him. When the appellant was summoned today in the appeal to explain on his complaint, he submitted that he had a land dispute with the respondent, Mr. Tumaini Stanslaus Sango. However, to his surprise the tribunal had decided in favour of Rorya District Council, which was not party to the proceedings. In his opinion, the tribunal was wrong in deciding the application in favour of 2 the district council without jurisdiction and necessary materials registered by the district council to prove ownership of the disputed land. The respondent on his part, had decided to hire and instruct Mr. Dioniz Lubango, learned counsel to appear and argue the appeal on his behalf. However, after the brief submission of the appellant, Mr. Lubango was inclined to the position. According to him, the record of appeal shows the tribunal had declared the district council as the rightful owner of the disputed land. In his opinion, the position of the law on non-party in the proceedings is certain that he cannot be declared as a rightful owner in absence of relevant materials in exhibits on the record to show that the land belongs to him. However, Mr. Lubango stressed that the tribunal stated that appellant is not a rightful owner of the land and had sued a wrong party the respondent instead of the district council, which vitiates the proceedings from the beginning of the application in the tribunal. I have had an opportunity to read the record of instant appeal. The record shows that the appellant had sued the respondent in the tribunal and the tribunal had resolved in favour of the district council. The district council was not party to the proceedings and did not tender any documents to substantiate the application. Even that was the case, the tribunal could not have a mandate to resolve a dispute 3 involving a government institution, the district council. When a government institution sues or being sued, the law in Government Proceedings Act [Cap. 5 R.E. 2022] requires a suit to be initiated at this court, and the Attorney General must be joined as a necessary party. The record of appeal shows further that the respondent has been denying ownership of the disputed land before hearing of the application via sixth paragraph of the written statement of defence and during the hearing of the case in his testimony and exhibits D.l, D.3 and D5. According to the respondent the facts and evidences in exhibits show that the land belongs to the district council. It was •J y ' unfortunate that neither the tribunal nor the parties, who had noted this crucial fact, which would have changed the course at the earliest stages of the proceedings in the tribunal. As the respondent claimed the land does not belong to him, but the district council, it was necessary to summon the district council to be a party in a fresh and proper suit in an appropriate forum. In the end, and having said so, I am moved to quash the decision and set aside proceedings of the tribunal in the application for want of proper record. I do so without costs as the dispute was not resolved to the finality in the merit of the matter and the parties may 4 wish to initiate fresh and proper land contest in accordance to laws regulating land disputes. Acco rd i ng ly o rde red. F.H. Mtulya Judge 27.02.2025 Thik'iusflffl^nt was delivered in Chambers under the Seal of this court in the presence of the appellant, Mr. John Ondiek Nyakuya and in the presence of the respondent's learned counsel, Mr. Dioniz Lubango. __________ IhJ /O Judge 27.02.2025