20180105 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA MISC. LAND CASE APPEAL NO. 34 OF 2017 {Arising the decision of the District Land and Housing Tribunal of Tarime District at Tarime in Land Case Appeal No. 43 of 2016 and Original Ward Tribunal of Nyakonga Ward in Application No 03 of 2006) KALELA RYOBA SIRINCHA ------------------------------- APPELLANT VERSUS RAPHAEL RYOBA SIRINCHA --------------------------- RESPONDENT JUDGEMENT Ebrahim, J. The Appellant and the Respondent in this case are siblings. On 04/04/2006 at Nyakonga Ward Tribunal, at Ta rime,. the Respondent filed a Land Case No 3/2006 against the Appellant. The matter proceeded exparte in favour of the Respondent. However, when the Appellant filed an application for stay of execution Misc. Application No. 28/2007, the executing court (DLHT) observed that the Ward Tribunal convened as an appellate Tribunal. Thus, it invoked its revisional jurisdiction under Section 36 of the Land Disputes Courts Act, Cap 216, RE 2002 to quash and 1 nullify the proceedings and orders of the Ward Tribunal. It also vacated its order for execution. On 22 nd July 2016, the Appellant filed a case in the District Land and Housing Tribunal for Tarime at Tarime, Application No 43/2016 suing the Respondent for invading into his land. The Respondent raised an objection that the matter is res judicata as it has already been decided by the Ward Tribunal vide Application No. 3/2016. The Appellant was aggrieved and lodged an appeal to this Court erring the trial Tribunal for deciding that the disputed land is the property -- · --- of-the Respondent; that the suit is time barred; and that trial Tribunal did_~-- not differentiate the suit heard at Nyakonga Ward Tribunal and DLHT. When the matter was called for hearing, the Appellant who appeared in person prayed to adopt his grounds of appeal. He argued further that the Respondent does not want to give them their father's inheritance and the land is 85 acres. Responding to the submission by the Appellant, the Respondent who was also unrepresented adopted his reply to the grounds of appeal. He elaborated on his reply that the case had already been decided by the 2 Primary Court and he was allocated the land by Village Land Allocation Committee in 1988. In rejoinder, the Appellant refuted that he filed a case at the Primary Court. He added that the Respondent has only been allocated six acres but moved the land to another village so that the Appellant cannot claim it. I have carefully read the records of the proceedings. The trial Magistrate dismissed the case for being Res ludicata and declared the Respondent as the rightful owner of the disputed land. I do not agree with his findings. The trial Chairman found the suit to be res judicata because it was heard and decided at Nyakonga Ward Tribunal vide Application No. 3/2016. He also based his decision on the fact that the DLHT ordered for execution of the same in respect of Application No. 3/2016. He further based his decision from Criminal Case No. 39/2016. With respect to the trial Chairman, the decision of the Criminal Case could only be part of evidence to establish ownership once the case is heard and determined on merits. As for the issue of res judicata, it is obvious that the trial Chairman did not read records on the file. Had he done so, he would have observed that the same Tribunal had on 11th Jan 2008 in exercising its revisional powers quashed and nullified the proceedings of the Ward Tribunal in 3 respect of Application No 3/2006. The Tribunal further vacated its order for execution of 19th November 2007 on Misc Civil Application No. 2007. Automatically any appeal that emanated from the decision of the Ward Tribunal was a nullity. The effect of the order of 11th Jan 2008 reverted parties to their original position as if no case was filed at the Ward Tribunal. Therefore, Application No. 43 of 2016 was not in any way res judicata. That being said, this Court invoke its revisional powers under Section 43(1)(b) of the Land Disputes Courts Act, Cap 216, RE 2002 to quash and set aside the ruling and order of the DLHT of 2nd February 2017. I further remit this file to the District Land and Housing Tribunal for Tarime at Tarime with direction that Application No. 43 of 2016 be heard and determined on merits by another Chairman with competent jurisdiction. Following the fact that this is among long time cases, the same should be heard expeditiously. Costs shall follow the event. Accordingly ordered R.A. Ebrahim Judge Mwanza 05.01.2018 4