na TZHC Mbeya 4

• 1 IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT MBEYA LAND CASE APPEAL NO. 10 OF 2008 (From the decision of the District Land and Housing Tribunal of Mbeya District at MBEYA in Land Application No. 115 of 2005) LIAISON 1VIIIT.AIPOPO ........................................ APPELILIANT VERSUS ASANGA MWANSUMBULE ........................... RESPONDENT JUDGMENT MWAIMU, J This appeal has been brought to this Court to challenge the decision of the District Land and Housing Tribunal of Mbeya District. The respondent, Asanga Mwansumbule filed an application against the present appellant Laison Mwaipopo for vacant possession of land measured eight (8) hectares which the appellant was said to have tresspassed. In paragraph 6 of Form No. 1 which he filed in the District Land and Housing Tribunal he stated: "Naomba anirudishie eneo langu alilovamia lina jumla ya hekta 8 na ni eneo la ukoo na Mwansumbule ". Then he sought the following reliefs as provided at paragraph 7 of his application: 1 "(1) Ninaomba anirudishie eneo langu alilovamia lenye jumla ya Hekta 8 Anirudishie gharama ya kesi Na mengineyo". The appellant disputed the claim by the respondent stating that he had sufficient evidence to prove ownership over the land in dispute. The District Land and Housing Tribunal heard the application and decided in favour of the respondent. Aggrieved by that decision, the appellant lodged five grounds of appeal as follows: That the trial Tribunal erred in law and in fact for not dealing with the land in dispute as a dispute involving the clan of the adversaries and not the appellant and the respondent as individuals. That the trial Tribunal erred in law and in fact because it did not consider what the appellant stated that the land dispute before it had earlier been heard by the Ikolo Primary Court and appeal of the same heard by Kyela District Court and by the Mbeya Resident Magistrates' Court. That the trial Tribunal erred in law and fact for not giving the appellant chance to be heard at the scene of the land dispute because their record. shows that the Tribunal took evidence from the side of the respondent only. That the trial tribunal erred in law and fact for believing that the beacons of the land surveyed at the land in dispute were caused by the appellant when thee surveying was caused by the NGO friends of Tanzania which is developing a school for orphans and a kindergarten. That the trial Tribunal erred in law and fact for not considering that the appellant could not sell or distribute the clan land which he is administering without leave of the clan members for even the piece of land given to the NGO friends 2 of Tanzania was after leave had been obtained by the appellant from clan members and neighbours. Upon thorough scrutiny of these grounds of appeal I have opted to deal first with ground number two, which raises the issue of jurisdiction of the Tribunal to deal with the matter. During the trial at the District Land and Housing Tribunal, the present appellant who was the respondent raised a point in his defence that the dispute was once dealt with by the Ikolo Primary Court where parties were his brother Enock Mwakyoma and the respondent's father but the respondent's father failed. Also the appellant stated that he was accused as a trespasser at the Kyela District Court and won the case. He told the Tribunal that he inherited the disputed land from his brother Enock Mwakyoma. From the very outset I hold that the Tribunal was wrong in making its decision in favour of the respondent without examining as to whether the land in dispute has ever been a subject matter of court proceedings in another court of law with competent jurisdiction. This issue raised by the appellant during the trial at the Tribunal was crucial as it could have formed evidence which would have probably caused the Tribunal to arrive at a different decision. Failure by the Tribunal to consider this evidence was fatal. The appellant consistently raised this point at the Tribunal about the suit land having been a subject matter of judicial proceedings. In paragraph 6 of his written statement which he filed at the Tribunal he pleaded: "That what is alleged in paragraph 6 is denied and disputed. The respondent has enough evidence to prove that he owns the land and the applicant have no right over the said land. They are put to strict proof. The respondent further states that Civil Case no. 55 of 1991 the applicants lost". 3 L The appellant also raised this point in his written submission which he filed in the Tribunal. I had the opportunity of going through Exhibit P1 the judgment of the Kyela District Court Civil Appeal No. 55 of 1991 which originated from Ikolo Primary Court and found that One Last Mwampulule who lost at the Primary Court of Ikolo appealed against the respondent's brother Enock Mwakyoma where the dispute was on land. In that judgment, the appellant, who according a. to the evidence on record was the father of the respondent in this appeal. According to the judgment of the Kyela District Court the respondent's father alleged that the homestead which the respondent (present appellant's brother) in that appeal which Enock Mwakyoma inherited, belonged to his late father. He asserted that the homestead which Enock Mwakyoma inherited was first inherited by Enock's father after the death of the present respondent's father. Deciding in favour of the present appellant's brother the District Court held: "Having studied the lower court's proceeding I have noted that, there is evidence which shows that, the homestead was divided to Mwandegane and the appellant. Mwandegarie is the father of the respondent, when Mwandegane died the clan in the presence of the Ten Cell leader gave that homestead to the respondent. Therefore I don't see the reason why the appellant agreed the homestead of his late father to be divided to him and Mwandegane I therefore supports the lower court's decision; I dismiss the appeal with its costs. From this judgment of the appellate District Court the Tribunal should have inquired to see whether what the appellant was 4 claiming that the respondent's father and the appellant's brother had a dispute over land in what they called a homestead and • whether that suit land is the subject of dispute in the application at the Tribunal. I think the omission by the Tribunal to consider this vital evidence occasioned a miscarriage of justice on the part of the appellant. The only option on the cirumstances is for this Court to allow the appeal by quashing and seting aside the judgment of the District Land and Housing Tribunal with costs. The trial of the application should start afresh at the District Land and Housing Tribunal before another Chairman vested with competent jurisdiction. It is so decided. JUDGE 5