katherina mhando nkalulwa vs mathayo jonas another 2017 tzhc 2138 15 may 2017
Non-compliance with section 23(2) of the Land Disputes Courts Act regarding assessors' opinions before judgment renders the proceedings and decision fatally defective.
Source-derived case information.
- Citation
- katherina mhando nkalulwa vs mathayo jonas another 2017 tzhc 2138 15 may 2017
- Parties
- Appellant: Katherina Mhando N Kalulwa; Respondent: Mathayo Jonas & Another
- Court
- TZHC
- Jurisdiction
- Tanzania
- Judgment Date
- 15 May 2017
- Procedural Posture
- Land Case Appeal / Judgment
- Outcome
- proceedings quashed, decision and orders set aside, trial de novo ordered
- Legal Topics
- Tribunal Constitution, Sale Agreement, Boundary Dispute, Trial De Novo
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Katherina Mhando N Kalulwa
Appellant
Mathayo Jonas & Another
Respondent
Procedural Posture
Land Case Appeal / Judgment
Legal Issues
- 1 Whether the trial tribunal erred in failing to consider the correct date of the sale agreement
- 2 Whether the tribunal erred in deciding the dispute as a boundary issue rather than ownership of four acres
- 3 Whether the tribunal was properly constituted under section 23(2) of the Land Disputes Courts Act
Ratio Decidendi
Non-compliance with section 23(2) of the Land Disputes Courts Act regarding assessors' opinions before judgment renders the proceedings and decision fatally defective.
Court Disposition
proceedings quashed, decision and orders set aside, trial de novo ordered
Orders
- Proceedings quashed
- Decision and orders set aside
Full Case Text
Judgment text and source record
1 paragraphs
IN THE HIGH COURT OF TANZANIA AT DODOMA LAND CASE APPEAL NO. 19 OF 2015 (From the Decision of the District Land and Housing Tribunal of Dodoma District at Dodoma in Land Case No 88 of 2013) KATHERINA MHANDO N KALULW A.............................................. APPELLANT VERSUS MATHAYO JONAS & A N O TH ER................................................. RESPONDENT JUDGMENT 2 7 /2/2017 & 15/5/2017 A. MOHAMED, J: Aggrieved by the decision of the District Land and Housing Tribunal ot Dodoma (“in trial Tribunal”) dated 19/3/2015 that gave judgment tor the respondents, the appellant appealed on two grounds; that the trial tribunal erred in tailing to consider the sale agreement between herselt and one Ernest Masima was made on 24/5/2008 and not on 24/11/2012; and that the tribunal erred in deciding the dispute was the question ot boundaries and not over a tour acre parcel ot land. A brief background of the facts are that the appellant had in 2008 purchased a four acre parcel of land from one Ernest Masima. In 2012, the area was surveyed for compensation by the Capital Development Authority. The appellant was found to be in occupation of only two acres. The trial tribunal found the two respondents had not trespassed onto her land as she had alleged. When the appeal was called on for hearing on 28/2/2017, the parties appeared in person and argued the appeal. However upon perusal of the trial tribunal’s record, I discovered that tribunal failed to comply with the provisions of section 23 (2) of the Land Disputes Courts Act [Cap 216 R.E. 2002] that reads; “The District Land and Housing Tribunal shall be duly constituted when held by a Chairman and two assessors who shall be required to out their opinion before the Chairmen reaches the judgment. The judgment does not show the assessors gave any such opinion before Judgment. I find this non-compliance of the law fatal to the proceedings and decision. I consequently quash the proceedings and set aside the decision and any orders emanating therewith. Before parting with the appeal, I am of the view the appellant ought to also sue Ernest Masima. In the circumstances of this case, I order a trial de-novo before another Chairman of the trial tribunal. It is so ordered. 15/05/2017 The right of appeal explained.