20171219 TZHC Dodoma1

INTHE HIGH COURT OF TANZANIA ( (DODOMA DISTRICT REGISTRY)

AT DODOMA (APPELLATE JURISDICTION) MISC. LAND APPEAL No. 83 OF 2015 (Arising the Decision of the District Land and Housing Tribunal of Dodoma District at Dodoma in Land Appeal No. 230 of 2014 Ori'inating from Manchall Ward Tribunal) MAMA DIU........... U.N...... . . . . ..... .... . ... . ... .... . ........ .. .. APPELL.A1S11

VERSUS MAGRETI-I LESILAfA .................................................. RESPO11DEft1T

JUDGMENT 21/11 & 19/12/2017 KWARIKO, J. Formerly, appellant herein filed a suit to claim a piece of land against the respondent herein before the Ward Tribunal of Manchali. She won the suit where the respondent successfully appealed against that decision before the District Land and Housing Tribunal of Dodoma. Now, the appellant filed this appeal against that decision where she raised three grounds of appeal. This appeal was heard ex-parte against the respondent who was served through publication in the newspaper following fruitless effort to have her served normally! physically. 1 () During hearing of the appeal this court asked the appellant to address one issue regarding list of members of the Ward Tribunal during the trial. The appellant submitted that three members were listed who included Kene, Baba Simba and Mtembo. This court is required to decide this issue first. Going through the Ward Tribunal's record it is clear that members who tried the case were not listed. There is only list of members on the date of judgment on 24/10/2014 namely; SALOME MBALANI - Chairman SHADRACK MADUKA - Secretary 3.BITRIS MWAJA - Member MWALUKO NGUBESI - Member LEONARD NHOBOLE - Member Among the listed members there is no Kene, Baba Simba or Mtembo. This is the side effect of non-listing of members during the trial and on the judgment day. This court finds that non-listing of members

contravene the law under section 11 of the Land Disputes Court Act [CAP 216 R.E. 2002] which provides members before the Ward Tribunal to be not less than four nor more than eight women inclusive. Also, by not listing one would not know if those heard the case on one day are the same that attended the other day and it is even difficult to know those who tried the case are the same who decided it. 2 Despite of the foregoing this court found that the record of the Ward ) Tribunal lacks the evidence as given thereat by parties and their witnesses. There is only report by the tribunal on when the matter was heard and what the witnesses said. Apparently, the evidence by the parties was recorded somewhere else and later summarized in the record dated 24/10/2014 which is also the judgment day. While the record says the trial started on 19/8/2014 but there is no such record. No wonder there is no any cross-examination of the witnesses by opposite parties. Hence, if there is no evidence as given by parties and their witnesses it is not easy for the higher courts to make their own finding regarding the same. The foregoing irregularities vitiated the Ward Tribunal's proceedings and by this court's revisional powers obtained under section 43(1) (b) of the Land Disputes Courts Act (supra) are hereby quashed and all orders thereto set aside. This goes to appeal proceedings before the

district tribunal that originated in the null proceedings. However, for justice to be realized this case is ordered to be heard afresh before the Ward Tribunal according to law. And if at all this case was earlier heard before that tribunal which was the decision of the district tribunal that fact will be proved before the Ward Tribunal when the suit would be heard afresh. No order for costs here and below since the anomaly was not occasioned by the parties. 3 .It is ordered accordingly. aIi i

JUDGE _.., 19/12/2017 191h day of December, 2017. DATED at DODOMA this ---r o,-

ARIKCO r - JUDGE y . _\ 19/12/2017 •1 4 (• ) Date: 19/12/2017 Coram: Hon. M.A. Kwariko, J. Appellant : Present Respondent : Absent C/C: R. A. Mahmoud Appellant: I am ready for judgment. Court: Judgment delivered in court today in the presence of the Appellant and Mr. Mahmoud Court Clerk. Al M .A.IXWARI KO '\ \ •f /t /J ' JUDGE 19/12/2017 Court: Right of Appeal to the Court of Appeal of Tanzania Explained. M . A. .• 7 -- : JUDGE 19/12/2017 , 5