Joseph Aweda Gwasma v Carol Balthazar Ombay

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI LAND APPEAL NO. 20962 OF 2024 (Arising from Land Application No. 24 of 2022 of the District Land and Housing Tribunal for Babati District at Babati) JOSEPH AWEDA GWASMA…………………………………………….……..APPELLANT VERSUS CAROL BALTHAZAR OMBAY……………………………………………..RESPONDENT JUDGMENT 6th November and 5th December 2024 MIRINDO, J.: Joseph Aweda Gwasma sued Carol Balthazar Ombay before Babati District Land and Housing Tribunal for trespass to land and cutting down trees on his plot situated at Sermak “A”, Seloto Village in Babati District within Manyara Region. In his defence, Carol Baltazar Ombay contended that Joseph had sued the wrong party in that the land in dispute belongs to Dympna Tsafu Baltazar who should have been sued. He equally disputed the entire claim. The trial tribunal ruled that the objection was not one of pure question of law as it required evidence to prove that the suit land belong to Dympna Tsafu Balthazar. Yet at the conclusion of the trial, the trial tribunal concluded that the disputed land belonged to Dympna Tsafu Baltazar. Joseph Aweda Gwasma has now appealed to the High Court at Babati complaining essentially that the evidence was not properly evaluated by the trial tribunal. At the 1 hearing of the appeal, the appellant, Joseph Aweda Gwasma, appeared in person and the respondent Carol Balthazar Ombay, had the services of Advcocate Godwin Athony Fissoo. After parties’ arguments, I asked them to address on the following question: Was the trial Tribunal right in refusing to add Dympna Tsafu Balthazar as a party to the proceedings in view of the objection raised by the respondent? The appellant maintained that the trial tribunal contended that the Tribunal took the right course in allowing the case to be heard on merit despite the objections raised. On the other hand, the learned Advocate, Mr. Fissoo observed that in view of the objections raised in the respondent’s pleading, Dympna Tsafu Baltazar should have been added as a party to the case. I am satisfied that there is ample evidence from that Joseph Aweda Gwasma could not have sued Carol Balthazar Ombay without suing Dympna Tsafu Baltazar who testified as the first respondent’s witness, and Julius Petro who testified that the disputed plot was sold to Dympna Tsafu Baltazar. Dympna was a necessary party who should have been joined. Without much ado, I quash the proceedings, and order retrial before Babati District Land and Housing Tribunal. The appellant, Joseph Aweda Gwasma, is ordered to amend his application within fourteen days from the date of the delivery of this judgment add Dympna Tsafu Baltazar, as a second respondent, and the respondents shall thereafter file amended written statement(s) of defence within twenty-one days from the date of the service of the amened application. It is further ordered that in the interest of 2 justice the land dispute be determined by a different chairperson and set of assessors within sixty days from the date of the completion of pleadings. It is so ordered. DATED at BABATI this 5th day of December 2024 F.M. MIRINDO JUDGE COURT: Judgment delivered in chambers this 5th day of December 2024 in the presence of both parties. B/C: Ms. Anna Mathayo (RMA) present. Right of appeal explained. F.M.MIRINDO JUDGE 3