20100610 TZHC Iringa

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT IRINGA ,; MISC. LAND, CASE APPEAL NO. 14 OF 2008 (From the Decision of the· District Land and Housing Tribunal of . I RINGA District at IRINGA. · In Land Cc:1se Appeal No. 24 of 2008 and Origin.al Ward Tribunal of MSEKE Ward in Application No. 3 of 2008) PAULINA MTANDI .......................... APPELLANT Versus GASPAL KOKO ..................... \.... ~ ..... RESPONDENT

JUDGMENT UZIA, J. This appeal originates from the decision of Iringa District Land and Housing Tribunal in Appeal No. 24 of 2008. Originally Paulina Mtandi lodged a land dispute before the Ward Tribunal of ,. Mseke complaining among other things that. the respondent trespassed to her piece of land. The Ward Tribunal of Mseke decided in favour of the Respondent. Dis~~isfied the appellant appealed to the District Land Tribunar, wh.ich again decided in favour of the Respondent. 1 In her Petition, the appellant raised four grounds: 1. The Hon. Chairman •erred in law and fact when he dismissed the appeal while the Judgment .delivered . by- the Tribunal was not to be relied on because there was a conflict of interest. · 2. The . Chairman of the District Land and Housing Tribunal erred in law in dismissing Appeal No. 240 of 2008 because there was no "Judgment" to be called by Mseke Ward because the Ward Tribunal was not properly constituted.

3. The District Land and Housing Tribunal did not evaluate the submissions given by the Appellant.

4. The Hon Chairman of the District Land and Housing Tribunal erred in law and facts in calculating the time frame from the date the respondent occupied the piece of land to the day of filin·g the case in the Tribunal. According to the appellant's written submissions, the Respondent knew exactly that the said land in dispute belonged to her father and she inherited it from her father. The · Respondent without just cause trespassed to the said piece of t ~ land under the umbrella of the law of limitation. Secondly, the ! ~•:, trial was not fair in the sense that, one of the Ward Tribunal members was a relative of the respondent, she asked the Ward 2 ,,.'.? Tribunal member to disqualify himself but that member ignored the request. On other hand, ·,Mr. Koko argued that he used to stay and cultivated the piece of l·and for the past 12 years. He owned that piece of land since 1996 and he inherited from his father, therefore it was his property. That, failure by the appellant to mention the name of the member of the War~ Tribunal who was the respondent's relative made the complaint not valid. Even if he would have been his relative that would · not do injustice to her because only one member would not convince the rest of the members to decide in his favour. The District Land and Housing Tribunal heard the appeal, and two members (assessors) were of the opinion that the land was the

property of the Appellant because she properly inherited from her father. The Chairman of the District Land and Housing - Tribunal decided in favour of the respondent. Having_ gone through the judgment of the District Tribunal, I found as a fact that, the Tribunal entered judgment i_n favour of one Gaspal Koko, but I have reasons to say that the arguments . . raised by the appellant were valid in the sense t~at. the District Tribunal erred in deciding an appeal without taking into consideration the way how the Ward Tribun 9 1's judgment was."·• arrived at. According to the appellant, one of the :'!1embers of the Ward Tribunal happened to be the relative of the respondent. 3 . , The appellant raised an objection in the Ward Tribunal and ' requested that member disqualify himself. The request was ignored. The appellant raised the same objection in the District ' · Land and Housing Trlbunal, the same was not considered. The District Land and Housing Tribunal erred in dismissing the appeal without considering that crucial factor. "Justice should ' not only be done, but should manifestly and undoubtedly be seen to have be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice". (See Rex V. Sussex Justices_ ex-parte Mac earthy, (1924) IKB page 259). The presence of one member in the Ward Tribunal who had

interest in the case and his refusal to disqualify himself was an irregularity which went to the root of the case. In the premises, I do find, that this ground alone takes care of the entire appeal, the remaining grounds of . . · appeal will be determined in future if they will arise. I therefore order retrial. I mean, that, the complainant is al1owed to lodge a fresh complaint at the vill~ge level then to the Ward Tribunal. The relative of the respondent should disqualify himself from hearing the case of his relative so that justice should be seen to be done. Appeal partly allowed as indicated above. Each party shou.ld bear his or her· costs . .cr~J75)~ .. ~ ? , U L , L. ~- K. UZIA

JUDGE t~,:~~~~#) 10.6.2010 4 Date: 10th June, 2010 Coram: L.M.K. Uzia, Judge For Appellant: Present For Resl)ondent: Present C/C. N. Rashid Judgment.delivered today in the presence of all parties today 10 th June, 2010. L.~~

JUDGE 10.6.2010 5