20160826 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY

AT MWANZA MISC. LAND CASE APPEAL NO. 150 OF 2014 (From the Decision of the District Land and Housing Tribunal of Mara District at Musoma in Land Case Appeal No. 29 of 2013 and Original Ward Tribunal of Makojo Ward in Application No. 62 of 2012) PATROBA MASAKURA ------------------------------------- APPELLANT

VERSUS NYABHUTI MAIGA -------------------------------------- RESPONDENT

JUDGEMENT . Ebrahim, J.: ;- ' " The appellant herein, Patroba Masakura successfully sued the ) respondent, Nyabhuti Maiga at the Ward Tribunal of Makojo. Facts have it that, the appellant claimed at the Ward Tribunal that the respondent had encroached into the land of his father. According to the records, the ) ! appellant's grandfather one Chikonya was long ago living with his nephew /. ,.. ;; ' . Sora. Sora had a son called Kabisha. In 1953, Kabisha moved from Majita village and went to Kamatondo Nyambono. He came back in 1956 and took his father Sora and both moved to Nyambono. The appellant explained at the Ward Tribunal that by then when a person moves from the village, ~he land is reverted to the Chiefs. That being the case, the appellant's . . .ri-~ ..;·-.·'.'f grandfather, Chikonya paid two heads of cattle to the chiefs to ransom the - J-] said land. From thereon, the land has been the property of the appellant's grandfather and later inherited to his father. The appellant claimed also to have been using the land_ since 1967 until 1979 when he went to look for employment leaving his parents using the disputed land until 2012 when the dispute arose. The respondent on the other hand evidenced before the· Ward Tribunal thatthe disputed land belonged to his grandfather one Machumu. Chikonya and Machumu were related from their father's side. Upon the death of Machumu, the

land was left in the hands of Chikonya. Machumu's children were then taken by their relatives on their mother's side and were brought up at Kisorya. They did not come back and when they got married they went to live at Kitegule but they always knew that they had a land at Mwikoko. Year 2004 when their aunt Nyegoro Machumu died, they went back to Mwikoko. In 2009 they went · back to build the graves and appellant's father showed them their land. He therefore denied to have encroached into the appellant's land but rather cultivating in their own land. Upon hearing and evaluating the evidence from both parties, the Ward Tribunal decided in favour of the appellant. Aggrieved, the respondent lodged an appeal at the District Land and Housing Tribunal for Mara at Musoma where the matter proceeded exparte. The appellate Chairman reversed the decision of the Ward Tribunal on the basis that there was previously a suit filed at Chitare Ward Tribunal ·which was mediated in favour of the respondent. Following the fact that appellant's 2 father did not refer the same to the Ward Tribunal and instead appellant .h- r. t, filed another case, th.en appellant had no locus. Aggrieved ·by such decision, the appellant lodged an appeal to this Court raising eight grounds of appeal as follows: 1. That, the Honourable Chairman erred both in law and fact by not holding that the Appellant had proved his case on balance of probabilities as required in law. · 2. That the honourable chairman erred both in law and facts for failure to hold that the appellant was the legal owner of the disputed property after his evidences were well corroborated with the evidences of PWl Maga Kuboja, PW2 Manyama Masaura and PW3 Sabata Maindi.

3. That, the honourable appelJate Tribunal Chairman erred in law by invoking fact for failure to visit locus in quo.

4. That, the honourable Appellate Tribunal Chairman erred both in law and fact for failure to visit locus in quo.

5. That, the honourable Appellate Tribunal Chafrman erred both in law and facts for failure to analyse and evaluate evidence·s correct there by reaching him to the wrong decision.

6. That, the honourable Appellate Tribunal Chairman erred both in law and fact for failure to take into consideration the evidences of PWl. Miaga Kubbja an old man with the age of 82 who testified customs of Jita when a person abandoned his land. 3 7. That, the honourable App~llate Tribunal Chairman erred in law and fact for hearing the Appeal Exparte while the Appellant had justifiable reasons for not attending on that date.

8. That, the honourable Appellate Tribunal Chairman erred both in law and acts for failure to observe that the whole proceedings of the village Land Council were NULL and VOID for being signed by one member and a secretary while .five members did not sign. At the hearing of appeal the appellant was represented by Mr. Ngelo, learned advocate. The respondent was unrepresented, hence fended for himself. Adopting the grounds of appeal, Mr. Ngelo simply referred to the grounds of appeal. He added on the seven ground of appeal that the appellant has good reasons for non-appearance and he informed the Tribunal. He finally prayed for the appeal to be allowed with costs. In reply, the respondent adopted his reply to petition of appeal. He added further that the appellant had no reason for not appearing in court. He therefore prayed for the appeal to be dismissed with costs. I have dispassionately gone through the records of this case from the Ward Tribunal where this case originated. Before going to the merits of the appeal, let me draw my attention to the records of proceedings. Section 24 of the Ward Tribunals Act, CAP 206 provides for the records of Tribunal. The section reads: 24. Records of Tribunal (1) A Tribunal shall cause to be kept and maintained proper records of its · proceedings in appropriate form. 4 proof that members participated in the proceedings and ultimately

reached a decision is substantiated by the names of members and .their signature appended before their names, which is lacking in the proceedings of this instant case. that being the case, it goes without say that, the irregularity contravenes the provisions of section 11 and 14(1) of the Land Disputes Courts Act, _Cap 216of the Land .Disputes Courts Act, Cap 216, R.E. 2002 read together with section 4(1) (a) of Ward Tribunal Act, CAP 206. The cited provisions of law require the Tribunal to be composed of not less than four members and not more than eight members at all times; or in case of mediation not less than three members. . . The consequence of such irregularity in the Ward Tribunal Proceedings renders the same a nullity and the resultant order there from. The same result falls on the proceedings at the District Land and Housing Tribunal and its resultant orders as well. Since this appeal originates from the decision of Ward Tribunal, the appeal automatically flops because appeal ) cannot come out of nothing. i; The above irregularity alone is enough to dispose of this appeal. ! ' Nevertheless, I find that it is also important to discuss in passing the issue raised by the respondent in paragraph three of reply to petition of appeal that the since the appellant's father did not appeal against the decision of Chitare Village Council in 2012, the appellant had no legal

right to institute a fresh suit on behalf of his father. Starting with the issue of filing a fresh case at the Ward Tribunal.· f ;. i Section 60 (1) of the land Act No 4 of 1999, CAP 114 establishes t I ... provides for the establishment of the Village Council for the purpose of 6 ·mediating and assisting parties into reaching to a mutually agreeable solution. Section 62(1) of the Land Act No 4 of 1999, CAP 114 provides for reference of disputes from Village Council to Courts. It is clear therefore that the function of Village Council is mediation only as opposed to adjudication. Thus a party that is not satisfied with the solution offered by · the Village Council may go to Courts including the Ward Tribunal. Hence, the solution proposed by the Village Council is not a decree/order that an aggrieved party can appeal against it. Further considering that it was mediation, it is established principle that records of mediation do not form part of arbitration process. In the circumstance, if a person wishes to pursue his/her matter to the Ward Tribunal, there shall be lodged an application as per the procedure set at part III of the Ward Tribunal Act, Cap 206. The Tribunal would therefore not rely on the proceedings of the Village Council. It is from that background and my firm view that the appellant was correct in instituting a fresh application at the Ward Tribunal. Another issue

that I find it important to comment in passing is the issue of locus standi that the appellant had no right to institute a suit on behalf of his father. Section 18 (2) of Cap 216 permits any relative or any member of the household of a party; upon request of such party to appear and act for the party. Therefore the said family member can only appear on behalf of the party upon authorization/request of the represented party. My take on that provision of law is that there has to be presented in the Tribunal a proof / permission to show that the said representative has been allowed by such party to represent him/her. ! 7 I ! ' I am aware that Ward Tribunal is regulated by its own procedures as stated under ~ection 15 (1) and (2) of the Ward Tribunal Act, Cap 206. · Nevertheless, proof of authorization safeguard the Tribunal against the represented party from claiming that he/she did not authorize the . same. That being the case the~efore, the appellant ought to have provided proof of authorization to represent his father. The above notwithstanding, this Court nullifies the proceedings and decision of the Ward Tribunal as well as that of the District Land and Housing Tribunal for being made contrary to the provisions of section · 4(1) (a) of the Ward Tribuna.1 Act, Cap 206, R.E. 2002 read together. with section 11 and 14(1) of the Land Disputes Courts Act, Cap 216. I further order the matter to start denovo befor'e another set of members properly cdnstituted and recorded. The appellant should also adhere to proper procedure for representation. No order as to costs Accordingly ordered 26.08.2016 8