20160927 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA

AT DODOMA Miscellaneous Land Case Appeal No. 13 of 2014 (From the Decision of the District Land and Housing Tribunal of Singida District at Singida in Land Case Appeal No. 84 of 2013 and Original Ward Tribunal of lkungi Ward in Application No 8 of 2013)

JOSEPH BENJAMIN IBRAHIM APPELLANT

VERSUS

JOSEPH MTAKII NKHAMBI RESPONDENT lfOflNG 01 /09/201 6 & 27 /09/201 6 SEHEL, J. This is a ruling on an issue raised by the Court, suo moto, at the hearing of the appeal. The issue raised and to which parties were invited to address the Court is the validity of the proceedings of lkungi Ward Tribunal. At every sitting of lkungi Ward Tribunal, the names of the Tribunal members are not indicated. Mr. Dickens, the learned advocate for appellant was of the view that since names of the members that appears in the judgment do not appear in every sitting the~ there is uncertainty as to w h e i to whether these members are the ones who sat and heard the dispute or not. It was his submission that the composition of the members was contrary to Section 11 of the Land Disputes Courts Act, Cap.

216. He therefore invited this Court to nullify the whole proceedings. ~ -~ Mr. _Dick.eos_ further __gdded~that even the appellant who instituted the dispute at Ward Tribunal had no locus standi since Juliana Ntandu said that the land in dispute was the property of her - - late- busband _ and _W_Q~ __the -- -- - one-- who ·- -- ·-- was appointed as the - - administrator of the deceased. He further faulted the decision of the District Land Housing Tribunal that it did not comply with Section 24 of the Land Disputes Courts Act, Cap.

216. He said the Honourable Chairman did not consider the opinion of assessors in his decision. He thus prayed for the decisions of the Ward Tribunal and that of the District Land and Housing Tribunal to be nullified and be ordered that the dispute should start afresh if parties so wish. The respondent being a layperson simply replied that he does not know why the members did n~t place their names but those£_ ,,..-- I appear in the decision are the ones who heard the dispute. For locus, he said the mother testified that they agreed for the appellant to file the complaint. For the last complaint, he replied the opinion of the 2nd assessor was followed since he is the one who said the decision of the Ward Tribunal was not proper. He concluded by requesting this Court to proceed with the hearing of the appeal. I raised this issue because the law requires that in every sitting of the Ward Tribunal, half of its members should be present to form the quorum. This is clearly provided under Section 4 (3) of the Ward Tribunal Act, Cap.

206. It provides: "The quorum at a sitting of a Tribunal shall be one half of the total number of members." Further as correctly stated by Mr. Dickens, the members of the Tribunal has to be no more than eight and not less than four (see Section 11 of the Land Disputes Courts Act, Cap. 216). In the matter at hand, the dispute at lkungi Ward Tribunal was heard on different dates. It was heard on 06/05/2013; 09/05/2013; 13/05/2013; 20/05/2013 and the decision wa! delivered on 20/06/2013. 0 ~ other hearing dates as stated herein, the names of Tribunal members who sat and heard the dispute are not indicated in the proceedings. The names of six members appear on 20th June, 2013, the date when the judgment was delivered. In all other hearing dates the names of these six members are not reflected. It is thus not certain as to whether the quorum was reached. The failure to indicate names of the Tribunal members in each sitting goes to the root of the validly constituted Tribunal. The question whether the quorum is reached or not, had to be determined first by any Tribunal before commencement of any hearing. The issue of quorum is so fundamental. It is therefore risky and unsafe for this Court to assume that the quorum was reached while the records do not indicate so. In view of such irregularity, I do hereby invoke my revisional power under Section 43 (1) (b) of the Land Disputes Courts

Act, Cap. 216 by quashing the whole proceedings of lkungi Ward Tribunal and set aside its decision. Since the decision of the District Land and Housing Tribunal is found from the nullity decision then I proceed to I quash its proceedings and set aside its decision. I make no o r d ~ 4 costs because the mischief was occasioned by the Ward Tribunal. Further I make no order for the retrial as I leave it to parties' liberty. Ordered accordingly. DATED at Dodoma this 27 th day of September, 2016. ~ ' B.M.A Sehel

JUDGE Ruling delivered in open court at Dodoma under my hand and seal of the court, this 27 th day of September, 2016 in the presence of Mr. Dickens, the ·- learned advocate - -- - - - - - ·- - -- - ----· - - -·- . ·- for appellant - - - and ---- respondent -· -·- .. - . present in person. The right of appeal is fully explained to the parties. 5