miraj idd hassan others vs registered of roman catholic diocese of kondoa 2016 tzhc 2057 23 august 2016

IN THE HIGH COURT OF TANZANIA AT DODOMA Land Appeal No. 22 of 2016 (From the Decision of the District Land and Housing Tribunal of Kondoa District at Kondoa in Land Case No. 5 of 2014) 1. MIRAJI iDD HASSAN .................... 1st APPELLANT 2. ALLY NTISI .................. 2nd APPELLANT 3. ZAINABU MOHAMED SELEMAN ......... 3'“ APPELLANT 4. SWALEHEITIKITI .................. 4»h APPELLANT 5. HAMIS SWALEHE .................. 5th APPELLANT 6. .IUMASHABANI .................. 6th APPELLANT 7. ALLY MAULID KIMOLO .................. 7th APPELLANT 8. SWALEHE RAJABU SAUSI .................. 8th APPELLANT 9. MOHAMED HAMIS! ITKI .................. 9th APPELLANT 10. MOHAMED IDRISA RASHID ........ 10th APPELLANT VERSUS THE REGISTERED TRUSTEES OF ROMAN CATHOLIC DIOCESK OF KONDOA ............... RESPONDENT JUDGMENT 28107120)6 & 23/08/2016. SEHEL. J. The present appeal originates from the decision of the District Land and Housing Tribunal of Kondoa District at Kondoa (hereinafter referred to as the trial Tribunal). At the trial Tribunal, the appellants filed an application against the respondent praying amongst otja^jA i things for an order that they be declared as the lawful owner of the, t land in dispute. At the end of the trial the trial Tribunal declared thej - respondent as the lawfui ownei of the suit land comprising of loooj acres. Aggrieved by that decision, the appellants through the; i services of Equality' Attorneys lodged before this Court aj memorandum of appeal comprised of ten grounds of appeal. [ t 1. That the District Land and Housing Tribunal erred in law and:. by upholding the decision of the Ward Tribunal without! I scrutinizing the evidence of. the parties thereof. f | 2. That, the District Land and Housing Tribunal erred in law and * • 1 fact by misdirecting itself on the standard of proof required Ii in civil cases in which land case are inclusive: : ! i ! : ‘ 1 3. That, the District'Land and Housing Tribunal erred in law andj fact for not considering the weight of the evidence! adduced by the Appellant before upholding the decision of the Ward Tribunal. 4. That, the District Land and Housing Tribunal erred in law and fact by upholding the decision of the Ward Tribunal basing on the weak evidence of the respondents^^ 2 At the hearing of the appeal, Mr. Ngemela, learned advoccjte from Equality Attorneys appeared to represent the appellants while i Mr. Nyabiri, learned advocate from RK Rweyongeza & Cjo. Advocates appeared on behalf of the respondent. j ! t ’ ' i In this appeal, though both counsels adequately and extensively argued all grounds of appeal and with a lot of industry put in it, I will only confine, myself with ground number eight sin ie from the submissions of" both counsels there is common agreemejnt that the records do not show what transpired at the locus in quo. Tljie j complaint by Mr. Ngemela on this.ground is that at the visitation, tljie respondeni failed to.'identify its . land and it is not reflected in tljie proceedings. Mr. Nyabiri responded that though the records do njot i indicate but such omission was not prejudicial since the judgment clearly indicates what:transpired .at-the locus in quo. The proceedings at Page 23 show that the Tribunal ordered fpr the visitation to be held on 23rd day of November, 2015. However,. j what transpired on 23rd day of November, 2015 is reflected as follows n in the proceedings: “Tribunal: This day was fixed for a visitation and the parties are all ready as weli as this tribunal members • • Mr. Ngemela Advocate: I would like to file a final written submission. I pray for a final date of filing the same-J\\v. Ms. Sophia Advocate: if that is the case, I would like to file my final written submission too. Order: By using Regulation 14 of the Land Dispute Courts (The District Land and Housing Tribunal) Regulations, 2003 which allows the filing of the final submission be it orally or written i hereby grant the counsels prayer. (i) Written submission from both parties to be filed not later than 10th December, 2014. (ii) As long as I will be. in my annual leave from the id of December to the mid-January the judgment will be pronounced at the end of January, 2016. Order: Judgment 29/1 /20.16. Sgn: M. Khasim Chairman 23/ 11/2015" From the foregoing it is not known as to whether visitation was done or not. The trial Chairman in his judgment, at page 5 made reference to the visit that the Tribunal made. 11 reads: this Tribunal visited the locus in quo but no beacon was found as alleged by both parties but it was disclosed that a big part of the suit land is located at Hurui village and the remained small areas are located at Chubi and Mifati I am-settled in mind that such an omission occasioned a miscarriage of justice and cannot be saved by Section 45 of the Land Disputes Courts A ct Cap. 216. I therefore find merit in the appellants' eight ground of appeal. I proceed to quash the proceedings and set aside the judgment of the District Land and Housing Tribunal. Since this ground disposes the whole appeal then proceeding to determine- other grounds of appeal will be for academic purposes. As the appeai is partly allowed on legal technicality, I make no order to costs as the mistake-was occasioned by the District Land and Housing Tribunal. Either party is at liberty to start the dispute afresh, if so wishes. !t is so ordered. DATED at Dodoma this 30th dav of August, 2016. B.M.A Sehel JUDGE Judgment delivered at Dodoma in open Court, under my hanc and seal of the court, this 30th day of August, 2016 in the presence o- 6th appellant and Ms. Masai, learned advocate for respondent. Righi of appeaLLs_fully explained to the parties. ^ v B.M.A Sehel JUDGE 30/08/2016