20170815 TZHC Mwanza

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IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY

AT MWANZA LAND APPEAL NO. 120 OF 2015 (From the decision of the District Land and Housing Tribunal of Mwanza at Mwanza in Land Case No. 93 of 2012 District Land and Housing Tribunal Mwanza) l' KI EMO MRISHO ............................................... APPELLANT

VERSUS 1. COSMAS SOSTHENES BUFURA 2. TESO SOSTHENES BUFURA 3. MAYALA SOSTHENES BUFURA I •••••••••• RESPONDENTS .

4. MUSSA SOSTHENES BUFURA 5. VARES SOSTHENES BUFURA

JUDGMENT MAKARAMBA, J:. The Appellant has approached this Court on appeal, contesting the decision of the Mwanza District Land and Housing Tribunal in Application No. 93 of· 2012. The Appellant has lodged three grounds of appeal. However, when the appeal came for hearing; Ms. Chiku, learned Counsel for the Appellant elected to abandon the 2nd ground of appeal, and submitted only on the 1st and 3rd grounds of appeal. On the 3rd ground of appeal, Ms. Chiku referred this Court to Section 36 of Part B of the Land Disputes Courts Act; which provides for the 1 powers of the District Land and Housing Tribunal, which include powers of revision by calling the record of Ward Tribunal and revise. In the instant appeal, the Chairman of the District Land and Housing Tribunal, Hon. Silas ·called for his own record and revised it suo motu. This according to Ms. Chiku was highly un-procedural and thus renders the whole decision a i' nullity and ought to be quashed and set aside. Ms. Chiku cited to this J ·1 i Court a decision of the Court of Appeal of Tanzania; Ms. Yonne Virgnia 1 ·j Ruth Chopra Vs. Ms. Lake Duluti Estate Ltd [2016] TLS LR 86 at p. 90 where the Court emphasized that powers of revision are not meant to be an alternative to an appeal. I wish to emphasize here that much as the stated principle is correct, but it has been quoted out of context. The gist of the matter here is that

the Tribunal exercised revisionary powers over its own decision, which is inimical to the settled principle that, powers of revision are only available to a superior Court over inferior Tribunal. In the instant appeal, the Chairman of the Tribunal having exercised powers not conferred upon him by any statute, acted ultra vires, which will make his decision a nullity and thus to be quashed. Mr. Silas, learned Counsel for the Respondents conceded to the 3rd ground of appeal. For the above reason, the 3rd ground of appeal has merit and it is allowed. On the 1st ground of appeal, Ms. Chiku argued that even if the Chairman had powers of revising,· which according to her he did not have, the Chairman proceeded to declare that the application for review, which was non-existent, had been filed out of time. This Court upon prompting the learned Counsel whether the Chairman of the Tribunal has powers of review,· and having visited the 2 provisions of Order XLII rule 1 of the Civil Procedure Act, Cap. 33 ~ R.E. 2002, on the grounds for review, it appeared that such grounds were not stated in the Judgment of the Tribunal; and worse still review is only by application; and there is no recourse for review suo motu, the way the Chairman proceeded. Mr. Silas after resisting for a while _and arguing that the Chairman properly exercised his powers of review, decided to abandon that line of

argument and conceded that the Chairman even if he had such powers, he had wrongly exercised them by assuming such powers suo motuwithout being moved as per the law required. It _would seem that there is a consensus among the learned Counsel for the parties that the whole appeal has merits and should be allowed and the parties to be left at liberty to pursue the proper course of action in settling their dispute. It is for the above reasons that the appeal is allowed in its entirety. The decision and orders of the District Land and Housing Tribunal in Application Review No. 93 of 2012 dated 16th October, 2015 originating from the Mwanza Land and Housing Tribunal in Application No. 93/2012 are hereby quashed and set aside. Each party shall bear its own costs for 15/08/2017 3