20151210 TZHC Dodoma 1

IN THE HIGH COURT OF TANZANIA ( LAND DIVISION) AT DODOMA LAND CASE APPEAL NO. 36 OF 2012. { From the decision of the District Land and Housing Tribunal of KONDOA District at KONDOA In Land case Appeal No. 43 of 2011 and Original Ward Tribunal of KIKORE Ward in Application. MWANAHAMISI ISSA ............................................ ... APPELLANT VERSUS ALLY RAJABU ISSA ................................................. RESPONDENT RULING 3rd December & 10th December, 2015 MRANGO, J. This is a second appeal . It arises from the land appeal case No. 43 of 2011 Kondoa District Land and Housing Tribunal for Kondoa. The same is originated from land case No. 50 of 2011 Kikore ward tribunal. The appellant and the respondent are in the battle fighting over land ownership and each one of them is claiming to be the rightful owner of the said land in dispute. The appellant Mwanahamisi Issa emerged the victorious in the battle before the ward tribunal and she was declared the rightful 1 owner of the suitland. However, the decision of the Kikore ward tribunal was reversed by the Kondoa District Land and Housing Tribunal for Kondoa where the respondent Ally Rajabu Mringi was pronounced the victorious in the battle and the ownership was changed into his ·name. The appellant Mwanahamisi Issa preffered this appeal to this court so as to challenge the decision made by the District Land and Housing Tribunal on 11/8/2011. The appeal is therefore against the whole Judgement and decree made by Kondoa District Land and Housing Tribunal for Kondoa. The appellant lodged five (5) grounds of appeal in her Petition of appeal. The appellant is advocated by Mr. Lussa learned counsel and the respondent is represented by Mr. Kidumage learned counsel. When the matte-r came for hearing on 14/4/2015 his ladyship Makuru, J had directed the learned counsels and she remarked: COURT: "It has been noted that the Ward Tribunal's decision was not proper as it was not legally constituted. Three members signed Plus the Secretary. Parties to address the court". SGD- MAKURU,J 14/4/2015 The learned counsels were tasked to make a research and come to the court and address the matter on the composition of the members before the ward tribunal whether it was properly constituted 2 or not. The learned counsels they have now come to the court to submit on their research they have made. In his submission Mr. Lussa learned counsel for the appellant submitted that the members who participated in the hearing of the case before the Kikore ward tribunal were Maulidi Sakala ( chair) Bakari Kvambe ( member) and Halima Rajabu (member). They were therefore three (3) members contrary to the requirement of not less than four (4) members as provided for by Section 11 of the Land Dispute courts' Act Cap 216 RE 2002 and the word provided is" shall" which makes the requirement a mandatory. He is therefore of the opinion that the composition before the ward tribunal was not properly constituted and therefore the proceedings and Judgement was null and void. On other side, Mr. Kidumage learned counsel for the respondent submitted that Section 11 of the land disputes courts Act Cap 216 RE 2002 provides that the composition of the Ward Tribunal members is not more than eight (8) and not less than four ( 4) But on the issue of quoram Mr. Kidumage learned counsel is of the view that the sitting shall be deemed properly constituted if a half of the members is in attendance. The half of the members in his opinion is two (2) members and in the instant case three members attended the hearing as a result the Ward Tribunal was properly constituted. He therefore made a prayer for this court to declare that the quoram before the ward tribunal to be properly constituted. That is the submissions by the learned two counsels. 3 ' ' Section 11 of the Land Dispute courts Act Cap 16 RE 2002 which has been reffered by _Mr. Lussa learned counsel provides: Section 11 "Each Tribunal shall consist of not less than four nor more than eight members of whom three shall be women who shall be elected by a ward Committee as provided for under section 4 of the Ward Tribunal Act." Truly, I must have to admit here that the research made by the both learned counsel didn't come with a conclusive answer to the problem raised to them for the solution in their research. It is my Understanding that the solution to the problem raised are ·provided for by Section 4 of the Ward Tribunal Act Cap 206 , 2002 which provides: "Section 4 Composition of Tribunal. 1. Every Tribunal shall consists of (a) Not less than four or more than· eight other members elected by the Ward Tribunal Committee from amongst a list of names of persons resident in the ward compiled in the prescribed manner. (b) A chairman of the Tribunal appointed by the appropriate authority from among the members elected Under paragraph (a). 4 2. There shall be a Secretary of the Tribunal who shall be appointed by the local government authority in which the ward in question is situated upon recommendation by the ward committee. 3. The Quoram at a sitting of a Tribunal shall be one half of the total number of members. 4. At any sitting of the Tribunal a decision of the majority of members present shall be deemed to be the decision of the Tribunal, and in the event of an equality of votes the chairman shall have a casting vote in addition to his original vote." From the above provision of law the minimum requirements for the quoram of the ward Tribunal is four (4) members. The quoram in the Ward Tribunal in the instant case was as follows: 1. Maulidi Sakala - M/kiti 2. Bakari Ivambe- Mjumbe 3. Halima Rajabu - Mjumbe It is not indicated whether there was a Secretary of the Ward Tribunal. However the Secretary of the Ward Tribunal is not a member of the tribunal. His/her duty is to record evidence and he has no legal Power to vote or to make decision. The Ward Tribunal was therefore not properly constituted. Section 24 of the Ward Tribunal Act ( Supra) provides: "S" 24 (1) N/A 5 • (2) The Secretary of a Tribunal shall be responsible for recording all the evidence and other matter formally transpiring during the proceedings before the Tribunal and all other matters in connection with it. (3) N/A That being the position, the proceedings of the Ward Tribunal for Kikore and that of the District Land and Housing Tribunal for Kondoa and the decisions thereon are hereby declared to be nullity. In the event they are hereby quashed and set aside. There is no order as to costs is made. (D. E. MRANGO) JUDGE 10/12/2015 Right of Appeal fully explained. b € (D. E. MRANGO) JUDGE 10/12/2015 6 Delivered today the 10th day of December, 2015 in the absence of the parties without Notice. (D. E. MRANGO) 7