livinus ntinda vs rauliane fungameza 2023 tzhc 21580 29 september 2023

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA MISCELLANEOUS LAND APPEAL NO. 13 OF2022 (Arising from the decision of the District Land and Housing’^Tri^unai for Stiipbawanga at Rukwa in Land Appeal No. 151 of2021, and originated fromLand Ca^e Nb^ef202d^t^bnga Ward LIVINUS NTINDA.... APPELLANT

RAULIANE FUNGAMEZA RESPONDENT 12>! September& 29!! Septe.'i MRISHA, J W This is a«cond appeal which emanates from the decision of the District Land W' and Housing Tribunal for Sumbawanga at Rukwa (the DLHT) sitting as the first appellate Tribunal in Land Appeal No. 151 of 2022 to hear the appeal regarding the Land Case No. 3 of 2Q20 before the Ward Tribunal of Senga (the trial tribunal). i The appellant was sued by the respondent in the trial tribunal claiming the latter to have encroached on his piece of land and cultivated banana trees and cover the stream which was pouring water to his land. In rebuttal, the appellant disputed the claim against him and the end the Ward Tribunal decided in favour of the respondent. % Aggrieved by the decision of the trial tribunal, the^appejlant appealed to the tribunal's decision. Still determinedTo ovlrtBh^tjig'W^le, the appellant now has knocked the doors of this coupseekirxjdo fault theconcur rent findings of the two courts below on eight grounds p^appealWNch are in the following form: - 1. That the learned ^airpbi^n of thej District Land and Housing Tribunal erred inlaw andjfact by-holt considering that I owned the plot since 1991 3. Thatdhe /earned Chairperson of the Appellate Tribunal erred in law and fact by failing completely to evaluate the evidence of me (sic) appellant which indicate from the time the Respondent to be trespass (sic) over my plot 2 4. The Chairperson at Sumbawanga District Land and Housing Tribunal did not observe that the Ward Tribunal at Senga was not properly constituted during that time hence injustice decision.

5. The Chairperson at Sumbawanga District Land and Housing Tribunal did not see that the Ward Tribunal did not see the Ward Tribunal at Senga members did not sign each day they attended^hepce reached th^ wrong decision.

6. That the Ward Tribunal erred in lay^^^^^^^^C^^idering the time of recovery of land.

7. That the evidence %>f the respondent way weaker compared to my evidence which 'was stmng.

8. That7 I wayddCfu/lytreatedasaccord/ng to principles of naturaljustice. During hearing boftbthe appellant and the respondent appeared in •^EsSF ^S^SSsfeir perso^unrepre^^d^^is submission, the appellant contended that he filed his appeal on 24th February, 2022 and served the petition of appeal to the respondent. He^herefore, requested the court to adopt his grounds of appeal in order to form part of his submission in chief and prayed it to allow his appeal. In response, the respondent argued that he filed his reply to the petition of appeal on 4th November, 2022 which is self-explanatory; hence he prayed the 3 same to be adopted so that it forms part of his submission in chief. He, thus prayed to this court to dismiss the appeal with costs. I have dispassionately considered the grounds of appeal in the light of the submissions of both parties. Having stated the above,;! should now be in a there, the appellant unsuccessfuliy^appealed toit^^gistridfr Land and Housing Tribunal Thus, his appeal to thi§court|s a sSon8lbite?%is a settled principle of law that the second ap^BB^co^kh^^de^^vith the question of law, but this approach rests Sn^ the|pf;emi^^hat finding of facts are based on a correct appreciation ^^tlie^idenc^This position was enunciated in the case of AmratlalD.M t/a Zanzibar Silk Stores v A.H. Jariwaia t/a Zanzibar Hotel [1980] TLRtt|^^ield that: "The rule is that an

appellate court should not disturb concurrent findings of fact unless it is clearly shown that there has been a misapprehension of 4 the evidence, a miscarriage ofjustice or a violation of some principle of law or practice." Based on the principle aforementioned/ I will be guided by the said principle when I am dealing with this appeal. It has been emphasized by the courts of jurisdiction To observe the said position, I will start de'fcg^ti^^^uiih ground (4) of the petition of appeal on issuegbf'composition oftSenga Ward Tribunal (the trial tribunal) when dealingwvithl|js ca^fRk 'j|| The issue of composition ofthe WardTribuhal needed me to refer to section 11 of the Land Disputes 'd|jjs Act|fcap 216 R.E. 2019 provides as hereunder: fec/z Tribunal shall consist of not less than four nor more than e/ghtmembSs of whom three shall be women who shall be elected by a WarddCommittee as provided for under section 4 of the Ward Tribunals Act. "[Emphasized added] The above cited section provides for the quorum of the Ward Tribunal to consist the minimum of four members of whom three must be women. Moreover, the 5 ward tribd^g^^^yppears in the matter at hand, not only vitiated the proceedings, judgment and orders of the trial tribunal, but also rendered the trial guiding section is coached in mandatory terms. Thus, it is a mandatory requirement that the composition of the Ward Tribunal

must consist of not less than three women. Having perused the records of the trial Tribunal, it is apparent to this Court that the composition of the trial Tribunal when dealing withIfte parties' dispute consisted of five members namely; Anna Sangu||Evanc: ^AmandohfMathias Pondamali, Joseph Msezye and Fotunatha MovBg|eading^thenames of all the five members, the proceedings do noti|ndicate leir fender, but it is two Jiy members' names to wit, AnnaySangu and Fotunatha Move known to be females It is thus, obvious thaFthe proceedings of Senga Ward Tribunal in Land Case No. who participated in the t^ thr^^^^t^^trial which is. contrary to the mandatory requireme^blth^aw indicatecfabove. tribunal to lack jurisdiction to try the Land Case No. 3 of 2020; See Adelina Koku Anifa and Joanitha Sikudhani Anifa v Byarugaba Alex, Civil Appeal 6 No. 46 of 2019 also Edward Ku bi ng wa v Matrida A. Pima, Civil Appeal No. 107 of 2018 (both unreported). Following the above findings and analysis, I see no reason to further determine the rest of the grounds of appeal as that tantamount to5gn academic exercise in which I am not prepared for at the moment. Initially, the matter was supposed to be .retried, fiowefef^sindbl^^he law stands here and now the Ward Tribunals^no longer haW|urisdiction to inquire and determine land disputes in the Written Laws (Miscellaneous Amendment^®0 3) A^I^^M 2021, I

decline to order for a retrial; and in lieu thereof, Wiirectjthat^ parjv who still wishes to pursue the matter, is at liberty toWstitufeua caseiBfresh before the land court with , , . "Wk . jflk >i_ .. . I ... ■ competent jurisdiction subject toghe current legal requirements. In thejsnd, sincerthe’error which lead to disposition of this appeal in the manner as shown.above was|committed by the trial tribunal, then each party should bear its own cosSinthiskourt and in the courts below. It is so ordered. Right of appeal fully explained. 7

JUDGE 29.09.2023 DATED at SUMBAWANGA this 29th Day of September, 2023. 8