juma seleman mbweze vs asha rajab fyeka 2022 tzhclandd 583 23 january 2022

IN THE HIGH COURT OF THE UNUTED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPEAL NO. 124 OF 2021 (From AppeaUudgment ofDistrict Land and Housing Tribunaifor Kibaha, in Land Case Appeai No. 27of2020, originating from the Ward Tribunai of Miandizi Ward in Appiication No.141 of2019) lUMA SELEMAN MBWEZE APPELLANT VERSUS ASHA RAJABU FYEKA RESPONDENT JUDGMENT Date ofLast Order: 08.06.2022 Date ofJudgment: 30.06.2022 T. N. MWENEGOHA,3. The appeal before me has its roots from the Miandizi Ward Tribunai, hereinafter caiied the Thai Tribunai, vide Appiication No. 141 of 2019. The respondent was the one who initiated the proceedings at the Trial Tribunai against the appellant. The center of the dispute being the alleged act of the appellant to sale the respondent's land to another person without seeking her consent. The suit land was described to be of 1 acre, located at Vikuruti, Kitemvu area at Miandizi Ward. The decision of the Trial Tribunal came in favour of the respondent. An appeai was preferred unsuccessfully by the appellant before the District Land and Housing Tribunal for Kibaha, hereinafter called the 1=' Appellate Tribunal, vide Land Case Appeal No. 27 of 2020. He has now presented this appeal as a T-*- appeal before this Court with a total of 5 grounds in his petition of appeal. The respondent did not appear to defend the appeal, hence the same proceeded ex-parte against her. Unfortunately, I have failed to grasp anything meaningful from the - 3'''' grounds of appeal, therefore I will start with the 4"^ ground. In the said ground, the appeailant faulted the Appellate Tribunal for disregarding the fact that the Trial Tribunal was not properly composed while entertaining the dispute before it. In his written submissions,the appellant maintained that, the secretary of the Trial Tribunal participated fully in the hearing and the voting process during deciding the matter. That, this is illegal as it is contrary to Section 11 of the Land Courts Disputes Act, Cap 216 R. E. 2019, as well as Sections 4(3) and 24(2) of the Ward Tribunal Act. I made a perusal of the case file from the trial Ward Tribunal of Miandizi to satisfy myself on the truthfulness of the allegations of irregularities noted by the appellant with regard to the decision of the Trial Tribunal. According to the said records, the case before the Trial Tribunal was opened on the 17"^ October, 2019. The list of members who participated on that material date are six, among them Amina R. Mbonde, the secretary of the Tribunal. On the 29^^ October, 2019 the same list of members including the secretary, Amina R. Mbonde appeared on the records as being involved in hearing of the case. The same set of members went on to hear the case again on the l?"" December, 2019 and the 6® February 2020 when the judgment was delivered. Based on these records, as explained herein above, it is true that the secretary of the Trial Tribunal participated fully in the hearing and decision of the Tribunal. As decided in number of authorities, her participation vitiated the decision of the Trial Tribunal. This is what was communicated under the provisions of Sections 4(1)(a),(2)and (4)of the Ward Tribunal Act, Cap 206 R. E. 2019 and Section 11 of the Land Disputes Courts Act, Cap 216 R. E. 2019, also see Nada Qori vs. Isaki Gilba, Misc. Land Appeal No. 2 of 2013, High Court of Tanzania at Arusha, (unreported). I therefore subscribe to the appellant's contention that the decision of the Trial Tribunal is null and void. The 4^^ ground of appeal is allowed. In that regard, I won't proceed to discuss the 5^ ground of appeal. My findings in the 4^^ ground are capable of determining this appeal to its finality. Eventually, the appeal is allowed with no order to costs. The decisions of the two lower tribunals are hereby quashed and the orders are set aside. Right of appeal explained. r. MWENEGOHA o ❖ JUDGE % X 30/06/2022 ★ ★