levis wamoya vs rebecca jacob 2023 tzhclandd 16897 19 september 2023

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IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC LAND APPEAL NO.38 OF 2023 (Originating from Temeke District Land and Housing Tribunal Land Appeal No. 40 of 2016) LEVIS WAMOYA - APPELLANT

VERSUS

REBECCA JACOB RESPONDENT

JUDGMENT 13/09/2023 to 19/09/2023 E.B. LUVANDA,J This is a second appeal. The Appellant named above is appealing against the concurrent findings of the two Tribunals below adjudged the Appellant trespasser over encroached piece of land, over which ownership was decreed infavour of the Respondent above mentioned. In the petition of appeal, the Appellant grounded that: One, the appellate Tribunal erred in law and fact by ignoring directives of the High Court vis-a vis observation of his fellow chairperson without disclosing any reasons for the same; Two, the appellate Tribunal massively erred in law an facts by allowing a non practicing Advocate to represent and submit on behalf of the Respondent; Three, the appellate Tribunai erred in law and facts by determing an appeal without being availed with records of the trial Tribunal; Four,the appellate Tribunal erred in law and facts by ignoring the Appellant's claim that the trial Tribunal relied on the person who did not participate in hearing at the trial Tribunal. In his written submission, Mr. Lutufyo Mvumbagu iearned Counsei for Appellant abandoned ground number four. Ground number one, the learned Counsel submitted they have no probiem with the appeilate Chairperson's decision to ignore to address the issue of quorum of the trial Tribunal raised suomotuby her predecessor and directed by this court to be tabled before parties,

arguing that his major concern and observation is that the appellate Chairperson was bound to disciose reasons and expianation for her decision, arguing that the question of quorum is so vital it goes to the root of jurisdiction of the trial Tribunal. Ground number two, the learned Counsel submitted that one Steven Luko was not a practicing Advocate and a concern was raised to the appellate Tribunal but Ignored without any reasons. He submitted that proceedings attended by non practicing Advocate becomes a nullity and have to be expunged from records. He cited the case of Edson Edward Mbogoro vs. Dr. Emmanuel John Nchimbi & Another, Civil Appeal No. 140/2006 CAT Dsm. Ground number three, the learned Counsel submitted that after institution of the appeal, law and practice demand the appellate Tribunal request and to be supplied with records of the lower Tribunal, that is to say Kibada Ward Tribunal, but efforts proved futile to procure it as it was claimed by the lower tribunal that original records of the dispute were transferred to Kigamboni Primary Court where litigants to the suit were also having another case. He cited the case of John Bonuah @ Eric Annor Blay vs. Republic, Criminal Appeal No. 13/01/2015 CAT. In her oral reply, the Respondent submitted that it is not true that the Chairperson did not comply with directives of Hon. Msafiri, J. She submitted that the

Chairperson complied with directives for a new judgment to be crafted and also asked them regarding a question of composition of members. Ground number two, the Respondent opposed this ground on the explanation that, she was not represented and they were not heard before Hon. Rugarabamu. Ground number three, the Respondent submitted that all records are In the file and she believe the appellate Tribunal had all records which enable to determine the appeal. She submitted that all records are in the file from when a case commenced in 2014 to I4ay 2023 when a judgment was delivered. On rejoinder, the learned Counsel for Appellant submitted that the appellate Tribunal massively erred by failure to disclose reasons for departure to address issue of quoram as observed by her predecessor chairman and directed by the High Court. He submitted that representation by a non practicing Advocate is a serious issue, arguing Its consequences render the proceedings a nullity. He submitted that this court will have time to go through the records to ascertain availability of Kibada Ward Tribunal's records. For ground number one, essentially the learned Chairperson is faulted for nothing, at page two second paragraph from top of the judgment, the Honourable Chairperson explaining reasons as to why did not embark on the ground raised proprio motu by her predecessor. According to the

learned Chairperson, having gone by the records of trial Tribunal, she formed an opinion that the alleged ground was of less Important as such opted to adopt the grounds of appeal and submissions recorded by her processor chairperson and proceeded to compose a judgment. To my view, that was in full compliance to the directives of this Court, because it did not make it mandatory to adjudicate on the question of composition of the members of the trial Tribunal. To my view the condition precedent directed by this Court was for parties to be accorded the right to be heard on that issue. And therefore, if the first appellate Tribunal opted to abandon it there was no need for assigning reasons for departure. Therefore ground number one is dismissed. Ground number two, it is true that the records of the appellate Tribunal, indicate that the Respondent therein (who is also Respondent herein) was represented by Mr. Steven Luko learned Advocate. However the records of the appellate Tribunal are silent regarding a fact that the issue of non practicing was raised therein and ignored. In that regard it is taken as an afterthought, therefore it cannot be entertained. Above all, the records of the appeal Tribunal at a coram dated 03/02/2020 reveal the Respondent had appeared along with the said Advocate Steven Luko. But at the argument in reply, the record suggest the Respondent take a stage

and fended herself. Therefore this ground is unmerited, it is dismissed. Ground nunnber three, actually the learned Chairperson is faulted for nothing. As alluded by the Respondent all records since the Inception of a complaint at KIgamboni Primary Court, where on 23/09/2014 it referred parties to Kibada Ward Tribunal to sort out and determine the question of ownership prior proceeding with charges of criminal trespass, where on 29/09/2014 the Kibada Ward Tribunal commenced hearing and received evidence from both parties including visiting locus in quOf then on 02/02/2015 delivered the impugned judgment. Thereafter records reveal the matter was referred back to Kigamboni Primary Court for resumption of charges of criminal trespass in Criminal Case No. 283/2014 which were conducted and hearing took place on 18/03/2015, and a verdict was entered including sentence. All these records are available in the Tribunal records, in particular a file in respect of Misc. Application No. 53/2015 attached along with Appeal No. 40/2016, subject of this appeal. More importantly, throughout the judgment of the appellate Tribunal on Its findings when deliberating on all grounds of appeal to wit number one, two, three, and four the appellate Tribunal referred extensively to records of the trial Tribunal. Therefore ground number three is dismissed for want of merit. In totally, the concurrent findings of the two Tribunal below are upheld, The appeal is dismissed with costs. o //o HX m E.B/LUVA^ pupGE -7 lJ^/2023 4: Judgment delivered in the/^esence of Mr. Lutufyo Mvumbagu learned Counsel for Appellant and the Respondent in person. X o E.B LUV/^ p\p(SE 1M9/2023 ★ ★ DW\sv9