lenjeka kisenga vs aron ndowo 2023 tzhc 22623 31 october 2023

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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB-REGISTRY)

AT MOROGORO LAND APPEAL NO. 100 OF 2022 (Arising from Land Appiication No. 49 of2018, from the District Land and Housing Tribunaifor Kiiosa, at Kiiosa) LEN3EKA KISENGA ..APPELLANT

VERSUS

ARON NDOWO RESPONDENT

JUDGMENT 31=' October, 2023 CHABA,3. This appeal is against the judgment and decree of the District Land and Housing Tribunal for Kiiosa at Kiiosa (the DLHT/Tribunal) in Land Application No. 49 of 2018 dated on July, 2022. At first, the respondent herein, ARON NDOWO (applicant at trial) sued the appellant herein, LENJEKA KISENGA (respondent at trial) for trespassing his farm land located at Matembere, in the Village of Mbigiri within the District of Kiiosa in Morogoro Region. According to the record, the value of the land in dispute was estimated to have a total value of Tanzanian Shillings Eighty Million Only. (TZS. 8,000,000/=). At the end of full trial, the DLHT found that the claims lodged by the respondent, ARON NDOWO against the appellant, LENJEKA KISENGA had merits and subsequently procegd'fd to declare the respondent / applicant as a Page 1 of 20 lawful owner of 100 acres of the farm-land located at Mkwajuni Suburb area within the Village of Mbigiri. On the other hand, the appellant / respondent, was declared a lawful owner of 49 acres of farm-land claimed to have been allocated to him by the Village Council of Mabwegele Village in 2005 which is different from the area owned by the respondent, ARON NDOWO. Further, the trial DLHT condemned the appellant, LENJEKA KISENGA to pay costs of the case and issued a permanent injunction against the appellant and his agents

or assignee. To make its judgment and decree precise, and for avoidance of doubt, the trial DLHT described the respondent's suit land by indicating the respective surrounding measurements in-terms of feet, i.e.. Length (feet 560+210+390) and Width (feet 420+70+365); Bordered by: North - Mama Rose (feet 210+390); South - Mbarai MIonga and Selemani Madumba feet 560) and East side is.Pino Kisenga (feet 420). Aggrieved, the appellant^ LENJEKA KISENGA appealed to this Court armed with six (6)grounds of appeal. He urged this Court to grant the appeal and quash the impugned judgment and decree of the trial DLHT with costs. To his part, the respondeht, ARON NDOWO vehemently resisted the appeal, hehCe the two parties engaged in-a wrangle which resulted in the present appeal. the appellant's grounds of appeal as reflected in the memorandum of appeal filed in this Court on 16'^'^ August, 2022 read as follows: - Page 2 of 20 1. That, the trial tribunal erred In fact and In law for failure to analyze the evidence available on record henceforth reaching an erroneous decision.

2. That, the trial tribunalerredIn factandIn law by ordering that, the appellant herein is the owner ofa piece ofland measuring 49 acres without giving any description ofthe said landed property.

3. That, the trial tribunalerredIn law andIn factby entertaining the Application No. 49/2018 which did notfully described the suitland.

4. That, the trial tribunal erred In law and In fact by holding that Mabwegele village Is not recognized by the law.

5. That, the trial tribunal erred In fact and In law by holding that, the respondent Is entitled to 100 acres while the same was notpleaded.

6. That, the trial tribunal erred In fact and In law by showing the boundaries of100 acres land which held that It belongs to the respondent while the said boundaries were described by the appeiiant during visit ofthe iocus in quo and the same describe the 49 acres which belong to the appellant. At the hearing of the appeal, both parties Gonsented to argue and dispose of the appeal by way of written submissions. On his part, the appellant was represented by Mr. Hassan Gyunda, learned advocate from Primo Attorneys based in Mbeya Region, while the respondent enjoyed the legal services from Mr. Rashid Kisusi Chacha, also learned advocate from Xclusive Consult based in Dar Es Salaam Region. Howevef/for reasons which will become apparent shortly, I do not intend to reproduce the parties'Submissions in support for or against the appellant's Page 3 of 20 grounds of appeal. This is because;^ while perusing the entire records and upon composing my judgment, I noticed and discovered a serious irregularity in the proceedings of the trial DLHT which born out the impugned judgment, decree and other orders. In particular, the irregularity touches the jurisdictional issue of the trial Tribunal. It is a trite principle of law that, a point of law, especially the one touching jurisdiction dfythe Court; can be raised at any stage of the proceedings, even on appeal and it can be raised even by

the Court suo motu. This view is based on the fact that^ the jurisdictional issue is a fundamental one that must be deCided befbre a Court decides any other issues. This principle was enunciated by the Court,of,Appeal of Tanzania (the CAT) in the case of Rschar^f Julius Rukambura vs.Issack Ntwa Mwakajila and Another,Civil Application No. 3 of 2004, at IV|wanza (unreported), following its previous decision in Fanuel Mantiri Ng'unda vs. Herman Mantiri Ngunda &Two Others(1995)TLR 155. Further, it should be.noted that, a Court when sitting to compose a verdict andvdiscoyers ray.serious: irregularity: in the proceedings .touching. Issue..of jurisdiction, it .hiay decide.on it without re-open|ng the proceedings for inviting the:respective .parties to address such an issue before the .Court. In Rlqhard lulius.Rykaniib.yra.,vSi^ Issack.N. iy!wakajila &.Another (.suprg),.the Court d interTalia that: - : , , ^ "The question ofjurisdiction is paramount in any cOurt" proceedings. It is so fundamentai thatin any trial even ifit ** . " ' I. . , - Page 4 of 20., is hot raised by the parties at the initiai stages, it can be raised and entertained at any other stage of the proceedings in order to ensure that the court is properiy vested withjurisdiction to adjudicate the matter before it..." In another case of Angella Amudo vs. The Secretary General of the East African Corhmunity, Appeal No.4

of 2014 delivered on the 30'^'^ July, 2015, The East African Court of Justice sitting at Arusha, Appellate Division, referred the case of Richard Julius Rukambula (supra) and stated that, basing on the above principle, Abdoolcadel, J., in the Malaysian case of Federal Hotel Sdn. Bhd vs. Natapna! Union of Hotel Bar & Restaurant Workers (1983)1 I^L3 175 at page 178, stated with.sufficient lucidity thus: "...jurisdiction does not originate in the consent of the parties and cannot be established, where it is absent, by such consentor acquiescence. Itis a fundamentalprincipie ^ that no consentor'acquiescence can confer oh a court of' ; C i itribuhai wittt iirhited jurisdiction to act beyond that. jurisdiction, or can estop the consenting Party from subsequently maintaining that such court or tribunal has acted withoutjurisdiction [Essex County Council v. Essex Incorporated Congregational Church Union (at pages 820821 per Lord Reid)j. This principle that jurisdiction cannot be conferred by agreement or estoppel was firmly reiterated recently by the English Court of Appeal in Page 5 of 20 Secretary ofState for Employment v. Globe Elastic Thread Co. Ltd In a decision which was reversed hy the House of Lords hut afHrmed on this point." Guided by the above precedents which I fully subscribe to its useful holding, I will discuss the abnormality one after another. The first irregularity

is notable through paragraph 3 of the Applicafion filed by the respondent / applicant one ARON NbOWO before the trial DLHT/Tribunal on December, 2018. It is common ground that, the Application is the instrument which normally institutes proceedings before the DLHT. See Regulation 3 (1) of,the Land pisputes,Courts Cthq- District, Land and Housing Tribunal). RegulptionSf 2003 (GN. No. 17,4 of.2003). The instrument takes placp .of the .pleadings (a plai,nt)Lin suits under the^ Civil Procedure Code,[CAP. 33 R.E. 2019](the CPC). Paragraph 3 of the Application at trial purported to comply with , mandatory provisions .of the law which require an application to disclqse^ the addrpss or location of the .suit land as provided under Regulation; 3 (2);(b) of the Government Notice No. 174 of 2003. ,the said regulatipn read: , - : _ :, ■ . "Regulation 3(2) - An application to the Tribunal shall he made In the-form prescribed In the second schedule to . - : \these R V V The'names and address of the parties involved,- ■ ■ '• 'vV Page 6 of 20 c C (b) The address of the suit premises or iocation of the iand involved in the dispute to which the appiication reiates".[Emphasis added]. The paragraph however, indicates oniy that, the suit iand is located at Matembere, Mbigiri area at Kilosa District in Morogoro Region and no more. It is further apparent on record that, the respondent herein filed an

Application for temporary injunction under a certificate of urgency. In his prayers (both ex- parte and inter-parties), he reiterated what he averred under paragraph 3 of the Appljcati.0in,;j;a-wit;,. O:. Af-Vi: "Bx-'Parte: :Thatthis honourable Tribunaibe pleased to issuoan interim ■ . ,> : JnJunction, order lestraining the respondent] hereinf,his: : servants .and/or agent from entering, trespassipg, . cultivating, aiienating/disposing in any manner whatsoever or otherwise from interfering with the appiicantts peacefui possession and ownership of his landed property iocated at Matembere, Mbigiri area at Kiiosa Districtin Morogoro region pending hearing and determination of the main Application between parties herein". Page 7 of 20 Again, looking at the respondent's (applicant's) final written submissions filed before the trial Tribunal on 16^'^ August, 2021, it read: - "The applicant(respondent herein)In this application Is applying for: L A declaratory order that the Applicant is the iawfui owner of the disputed landed property located at Matembere, Mbigiriarea atKHosa Districtin Morogpro : region^ and the act of the respondent(applicant herein) In trespassing to the applicants landed property Is unlawful". H. The order for eviction of the respondent (applicant herein) from the suitland/disputed property."[Bold Is mine]. Viewing 'from 'the above extract of the Application for

ternporary injunction and fihal'submisision advanced by the respondent / applicant, ARON NDOWO, it is my finding'that, the description of the disputed suit land provided for under paragraph 3 of the Application and the attached / subsequent documents was not sufficient to disclose the disputed suit land. However, it should be .noted that,ithe legal requirement for disclosure of the address.or location is not cosmetic. It was intended tojnform the.(Courts and Tribunals as vyell, a sufhcient description :S0 as to specify the land.in dispute .for, purposes of differentiating it from other pieces of land around the sanne area. In case,of a suryeyed area ,.or land, mentioning of a plot and block number(s) or. other specificationsisuffiqe to-iTieet the .need..This is because,;sugh .partipulars-ere Page 8 of 20 ';;k V- ri;.', - ''' capable of identifying specifically the suit land so as to effectively distinguish it from any other land adjacent to it or nearby. Concerning land or area which is un-surveyed and the same is located in rural area / village or urban, specifications of the size(s) of the disputed land, boundaries, neighbours and / or permanent features surrounding the land at issue are very cfucial for the purposes of differentiating the land from other parcels of land adjacent to it. This is what Regulation 3(2),(b) of the GN. No. 174 of 2003.(supra) errvisaged by the term

"Location".. Black's Law Dictionary, 9*^^ Edition,/ Publishing Cpmpany, St Paul, 2009, page 1024 also, defined tpafp^pTLocation'^to. mean thp,specific placeoF position,of a.thing,andJnJand matters.(Real.Estate), it means the designation of the boundaries of a particular piece ofjand, either on-the,record or on the land itself. • Oh-a-careful scrutinyfOf the respondent's pleadings, T-have fdrified an opinion- that/' Iri the- difcumstance, it was inadequate : for the'-respondent (applicant at trlal)^ to mehtioii only that, the suit land was-fOUndi-in' Matembere, Mbigiri VillagerMy findLng is largely based on the fact the -dntire pleadings of the Tespondent (Application filed by Aron Ndowo) does not make the impression tha.t^ the land:In. dispute covers the whole area of Niatemhere Jn the yillage-of/iyibigiri. '■ ■ r, - ■ ■'The impression one gets from the parties' pleadings is thaE'the-land'1n dIsputeMsionly part Of the land forming Mbigifl Village; '!! wasttHUs necessary fbr the respondent / applicant to "disclose-the- size(s) of the land in dispute. Page 9 of 20 details of the boundaries and other permanent features (if any)surrounding the land in dispute for purposes of identifying it from other parcels of land in the same village. As gleaned from the proceedings trial Tribunal's, the respondent / applicant did not describe the same in his pleadings and even in his

testimony before the trial tribunal. ': On the other side, the appellant herein (respondent at trial) Via his written staterheht bf'tiefence'et'paragraph Sv disputed the 'fatit pertaining-to the Ideation of the land in dispute by stating that, the same is fduhd and located at Matahgahi, Mabwegele Viilage. He further told the trial Tribunal that; it is the re;§pdhdeht who- invaded his farm-land located at Matangani area within Mabwegerec Village -pd flot IVl3tembele area in the Viliage ,of , Mb.i^^ appellant^ reply under para,3:and 7:(i)ofthe WSD.read^-'; . ' - V Hhat} the content of paragraph '3 of the application ie disputecfr ^'the !land: m in Matangani ■ Mapwegpr^,yUla^ and not Matembele r^^^^ ailgyadbyraisplicant'.,..y^ , , si. .17^ i^eiief(s)fiairned by Respondent againstye applicant: - i). A-declaratory order thpt the respondentris.y^ .f,,.-oyfner ofMjeyispgtnd Japded grogeity ipoated-yt i,..,^yiatanganlj^:Mabvmgereyillag§etS^^ ■i^lrryrii) ffheiappiicaiit be evicted and estopped from entering , the saidJanded:pr:operty"^ ^ ^ . v. . s.^ ; , ; . Page 10 of 20 ,, . S^: ■ i-:'- -.er ' 'V' fcsi;' ■ jlst 'ss " ^S i S-'; < si;? sT I have gone throQgh ,the proceedings of the trial Tribunal and noticed that, neither, the respondent and his witnesses nor the appellant and his witnesses testified at trial in respect of the boundaries of the suit land. As the records speaks, it is

clear that the Application before the trial Tribunal did not mention even size(s) of the land in dispute, apart from what I may say, a confusion of the clear- location,:of the .purported disputed suit,land as claimed jDy. both parties. It is ,said t"p have been found,/ situated in two different areas in Tvillages as, w.ell. According the respondent iierein, the land in dispute, is .located at Matembe.re area In the Village, of Mbigiri, whije the.appellant's herein rnaintained that tbe sarne is.found and located atiMatangani area:in the Village pf Mabvogere.,,;, , ■ - ' Looking at the respondent / applicant in his testirhohy in chief before the triaTTribunal; he stated that he was allocated the land: in dispute measuring 3G(} acres by'the Village Council of Mbigiri in 1986. When cross-exarnined by the Goyhsel for the appellant, he stated that, he is claifriing from the appellant /■respondent' approximately 100 acres and could not remember the size(s) of his sharaba-bpth by length,and width. In re-examination, he testified; among others that, the, other. 200, acres were taken by the new. village government wbere .Mr. Kamsweke .inyolyed to salO; his shamba ,/. ,$uit land. -.t^pr .ease -of reference;; and better ..understanding, ;I feel compelled,tp, demonstrate what aGtually Transpired at .trial, when the respondent herein gaye his testimony. If Page 11 of 20 L,r-. ^^XXD by Mr.

Gyunda,Advocate to AW-1; "I was allocated by the village council ofMblglrl 300 acres. Idonf know whether the village council may allocate land of 300 acres. The new village government sold the shamba-Mr. Kamsweke sold200 acres. Currently, remained with approximately 100.acres.Iclaim WO acres. Idon't remember the size ofthe shamba length and width. I willshow my shamba".[Bold Is mine]. However, the above piece of testimo.ny;contradjcts with the testimony advaneed by his witness; AW2(Hemedi Ibrahim Saium)Vvho was the Chairman at Mbigiri Village foriihii^en (13) years; His eVidehce^shoWs that:^ "Iknow the suitland;I was born In the same village. Iknow It since I was young. The suit land, was within Mbuyuni ' ' • ''Kltohgo]!^^'Mbigiri Village andafter division or changes ■ j:;:' ^' df- the 'Vibondcily 'hoW'the'shamba is at y. y.y-jy- '-. ■y:f0tprigqjiabMbi0rlylllageV[EmphasiS'addedjyyxr: As hinted ■earlie?'oh,1t'is tefl the thai proceedings that, there was a confusion on thdSize(s) of the alleged disputed fandT%fieh'M/^ was cross- examined by the assessor) one Bi. Mariam Lila he tbid the trial Tribunal that: - "Maswalikutoka kwa Mjumbe Bi. Mariam LUa; Eneo bishaniwa ni Eka 100, eneo lllilovamiwa nl Eka 43 na eneo IfngitieM^ ■" -isyr yys 'Page-lZof 29;, ;v , On this facet^ the testimony of the appellant, LENJEKA KISENGA as reflected on the proceedings of the trial Tribunal unyeiled

the followings: - "Mimi niHotnba shamba SerikaH ya kijiji cha Mabwegele tangu mwaka 2005, kitongaji cha Matangani. NiHomba shamba fenye ukubwa wa ekari 49 na nimekuwa ■ nikilima tangu mwaka v 2005 hadi 2019. HHi:shamba ' :s , :finapakana na;:Jiialinapotpka napakana :na Korpngo, Jua Unapotua yupo MBALAI na SELEMANI. Upande wa kusini yupo SHARIFU, na upande wa kuHa yupo DINO. Kijiji cha Mabwegere kimebadiiishwa jirsa mwaka 2019 kinaitwa Mfuiu". [emphasis added]. Seeing from the above •piece of evidence; it is uriCeftain where exactly the disputed lafid is located. In this regard; f am dfconsidered vfe^ that, the applicant's appilicatioh contained insufficient ihforrhatibh for the purposes of identifying the' land i'ri dispute. In law, the importance'of'mailing detailed descriptions of the disputed suit land in resolving land disputes can be emphasized pnd the law has been.coRsistently underscoring such a signifiGance, prder.N/II^RuJje 3 of CPC for exannple/articulates that: v. : , ^'Where the subject matter ofthe suitis immovabie \c '■■^]^0^^QfiY^'ibg''pf^[pi:shaiicdntama'desc^ 0^peft^'siifficieht'td 'ideniify'lt'ahd]' : Page 13-of2Qv;. '. ; fitdp&iiy^affByidehtifi^d by a We numbervrider the Land Registration Act the plaintshallspecify such title number". [Boid is mine]. Having revisited the guiding provision of the law, it is my considered view that, Regulation 3(2)(b) of the

Government Notice Mo. 174 of 2003 should be interpreted to mean what is envisaged under Order VII, Rule 3 of the CPC, so as to shun away with the surrounding confusion and uncertainty revolving around the matter at hand. In particular, the legal requirements highlighted above was mtendedrfprithe purposes qf giving an authentic.identifiGad^^ land in. dispute ^O'.as;to-afford; the .Coqrts and Tribunals^ makei'Certain^and exeGLitableorders;.,. ... r '• ■ Flbwing^ from the dbove discussion, it foilows therefore thatv. where the deCcfiptions of the land in dispute Is'Ohcertain, innp'roper'and ambigubus/ it is obvious that/it Will not be possible for the Gourts/Tribuhals to rhake any definite order^and even executd-it^SmOOthlytfSee'v Rairiadhen^^Onie]^ HumiJi asid 58 Others'ws'i -Aneth Paulina NkSnda and Another, HCT - Land Case No. 99 of 2d:13..a.t [j^sm-.and WPJia5Ti.:Ninyarripl ¥S,;yQhana,,.Anansa^^H^ Case Appeal.Nq.:41;of-2016 at Tabqra fboth .unrepprtecl)].. ^ , . . o h; ;; , the legal principle, it cannot be argued that in the circumstance of thisease) the^ fespondent y applicant followed the-repdirements of#iedaw prepardduri# drew;the Aioplteation ahdefte^ards lodged^the sameiat the'trial' Tribuna I' ■ buU-in'the- bfan Icetr'descri ptionS asserting ^that- the land- i n ''v;'. } : r - '}P:\r'. ; .Page,14 0^20 :..;o ; - o.-: h disput^^'was • loicMe^ area in 'the VillE^e of

Mbi^iri' withih tbd biStriCt'df'KilOSa^:- v-;--: ■ ■: Besides, I had ample time to read and passing through the Government Notes No« 537 dated 19*'^ Ju!y, 2019 which is called ^^Amri ya Mgawanyo wa.J^aeneo ya Utawala katHo Serfkali za Mitaa (Mamiaka za WiSaya) S^waka 2019j The reason why T have decided revisit this GN.;No. 537, it is due td the fadt that, 1t not merely of some importarice but is of fundamental importance, that, justice .should not only be don?,, but should.;m?nifestly and undoubtedly be seouto be done.,In.that;GN,, No= 537 dat^d JmIY' L.foun,dvheU:b?t^ap,;grea;i!mp]^,^as,.;>;Matorob Ga!led;Mabwegere. This.G^^ shovvsthat^ f'^bigiri Viliageds.found in ,thedist under item No. 20 which comprises,of the.following four areas^,^^^ VitpRgpji;/.SUb,U:rbs: ; : .v . -.y VLVi.yf:' y;- TuwatOgawep<id4!:-Wi^byuff^ ;;-;y On the other hand, the appellant's claim involves an area measured at; 49 acres of farm-land and according to the GN. No, 537 it falls under item No.

29. Mfulu Village where the following vitongoji / suburbs exists: '^139. Ghalanl^ 140. Kambinif 141. Kwa Kibmdu^ 142. Ngoisani, 143. NdaganSf 144. Matangini and 145. j-y- :V,r-. -■ ■Vvv-, .r-v; page 15 of 20 From tl^e-above finding, truly the respondent's application, the parties' pleadings as a . whole and the evidence on records, do not offer clear descriptions of the disputed suit land sufficiently to identify its location so as to state certainly that, the trial DLHT effectively resolved the controversy between the parties. In my unfeigned view, the application lodged by the respondent / applicant before the trial Tribunal was thus incompetent for uncertainty of the subject-matter. The 'nexti qu^Stion to bd considered by this 'Gourt is; what are the cbhsequehGes on failure to describe the disputed suit land. Before directing my mibd Oh That-question; I'find it apt Tomighlight a crueiaTpoiht onrth^^decisibn made by thertrial Ghairpersbn.''At page 6: of the typed cbpy- of judgment, the trial GhairpersOn when analyzing and summing up the evidence adduced by the parties;atrtrial,destatedrthatr^.. : v -v,;: \ >:^^Kw3n2akabisa'mi^mka'Wa^ikuWa'maGtnbi'h^yay^ ''V -'f fifV -"i V': f'-e-S'U hv '■■ ■':S'''MeiaWIMfnbi'anieiamkwa^kuwam ' 'r' " :::v \ ■ '[h lawlmbwaiwa^ekarf^lOOJililopa kitangaJr eha^M - : :T MblgJri, lenye vipimo vya hatua za miguu urefu hatua za mipuu 560-i-70+36S) na

upana (hatua za miguu 420 +390} na mipaka yake ikiwa kaskazini-hatua za miguw 210+390-Mania Rose, Kusim'-hatua za miguu 560 Smapakana na Mbarai Page 16 of 20. -^Vu. MIonga na SelemasiiMadunda, Mashariki-Hatua za miguu 420iinapakana na Dino Kisenga." [Emphasize added]. From the above excerpt of the judgment and decree of the trial DLHT, it is so astonishing that though the lengths and widths were mentioned by the trial Chairperson in the inhpughed judgment, But such pieces of evidence are not backed up by the proceedings. This is because, neither the respondent herein nor his witnesses mentioned the boundaries and the neighbours during the hearing;,:^ai;n,^ the,., Court's record, us silentv pm where.;the ..above rneas^rerifjen^s .vy-ere; pbta^^ erjdtv/hen,.; In-.i;nyusGrutiny.;pf theTriaJ-recqrd^> I npticed -thaf even though,staking;and ; reGprding^^ proceedings^ began .on 28/Q^/2Ql;9 aop:Gontinued;,,up>to 7/^ the testimony.pf [.ysilyr.AW^ on 1^/Q^/2Q20 followed.by ;his-.vvitnesse5^ documentary evidences^ end.thereafter the testimony pf the;^ltW3<i,tEMK^ kJSEN^ and; his,:Witne^ses;; This-means thaf.any records,tpKep epP;recorded frorn,28/02/2019,up to 7/5/2020,\yereeithepfdiscarded bythptrjaj: Tribunal er O0un|edras;ajnr;use^^ u. f-;.; r? 'U -t. T^say'siT'bedauseTmy readihg of the'-pfoceedings^^ the-tl-iaP Tribunal revealed that, neithefthere;Was-a tepbrt ihtheease-file

^shdwingthat/tHe^ttial Tdbdhafvisited the dap, hbr'any cOmiihs!lt(Js) WaS^ inade-^ (Ihairpdt^bh^af least Indicatih'g^to that effect/Tven'ufibhe cduldi dssUfhethat, ./<xit/5in'quo, yet such assumption would not serve any • .-vy v;-, r>;;. .s;e - -^rrv ::'i.:-:P^gei7of20 purpose if the land in dispute wouldn't properly identified before moving to the said locus in quo. Additionally, it would be also hopeless for the Tribunal to visit the iocus in quo without firstly framing'the controlling issues and hearing the evidence from both sides on merits. With the above analysis, the irregularity that I have endeavored to deliberate hefeip^above/ Vitiates the iarbceedings bf the Trial Tribunal and the verdicts-reached 'ThefebnT TIad the ■trial T^ being' ^able TP spot the iffegulafity' ndticed bf this^GPurt-arid perhaps considered it oh merits," pdSsibiy could not ehtertaihed the respondent's application.Iam sure would have ended to strlke;gutTI;ie ajDRliGatipn.fQr^want of ,prqRor descnptipns and^certajnty.: - ^ vT rruTn The ■finah^vent/'-I-mave •decided'TO'^ ^ e^ rtiy-reviSfOna! - powers bestowed "UpOff 'me'uhdOr section 43 •(!)' (b), and (2) Of The Land -DiSiDuteS Gouitsv^^et [CAPT21&Tt;E;\20i9], and ^proceed to nullify the entire-^ OftheTfiaf-DistfitT'Larid and^Housihg Tfibuhatfor'Kilosa, at KiloSa-arid set the' impugr^ed judgmehtf decree and' any- othef orders, emianated^

t^^^^ Howeyer,r{I;;:refrsin Tnoni awardingrCQ^TO:The,parti|[S;bocau^;.thq issue,.pf junsdiction hasdeen rajsed by theGourt |?^o;/770£^,.Hence^ eacb^^ party,sha.|| bpar its,;qwneps|:s^.,f:. p/'O ./vv ■ 'iNU'; Of *!?>af eitiiieft^TheT^rtV^'Still wished to pursUe^fbr'hisTigh tOTiie a ffeshease;;befefe theTribunar withdOmpeteht ^ufiSdiction^ The' matter sHall^^be- tried ■ by^another'Ghairpersod: vested 'With"the- poWer^iTO';handle^the mattef withia' distinOt pair-bf asSssSoi-s:- FOi\aVoidar^ee Of doubtsy the institution y . Page 18 of, 20 ■If rfrfi;' ypry;; y..:,y P: ■: ' ' ' ' ' .' .^u-. vae of a fresh application before the District Land and Housing Tribunal is subject Ci --i-y Hi o; ■ w'ff- ii"'—\,l- to the fulfilment of the current mandatory requirement enshrined in The Written Laws (Miscellaneous Amendments) (No, 3) Act, 2021, GN, No. 41 Vol. 102 published on 11/10/2021. It is so ordered. DATED at MOROGORO this Sl^^^ day of October, 2023. AO r -") Tr- -iJ.C; f . i' m so -rj o''-; // '3^JM/2023 DATfD HGI10GORO tiT; G- oov otAGicbcK, 2021 ' i-' Page 3.9 of,20 CoyrtJ Judgement delivered under my Hand and Sea! of this Court in ChamberV this 31^' day of October; 2023 in the absence of both the Appellant and the Respondent. L. B. Lyal^ana 'Mgwrmmmm:,. c:k: 3!:uU";De( 31'-- d:-v M CO-3 ApDcJar-t. guu dx' Rights of the parties to appeal to the CAi fuiiy expiained. L. B.. ■ V.'X''«''v 'G.;-; L B. 0/^ / -A ?■ AilA,. 7^/ / '9 ^^ASGBBEPUTY flEGISTRAR. / A -yn \pB'i ■' y lAi ^J9.931im/2^23 CO ovu < Ar viBx oxoBguoo. ' .;X-v,000-: AS. D£?Ar?A" Mi ivo;:bb>.:i .Page 2Q.of^Q ■ i ^