20141030 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DODOMA MISC. LAND CASE APPEAL NO. 42 OF 2011 (From the Decision of the District Land and Housing Tribunal of Dodoma District at Dodoma in Land Case No. 14 of 201 OJ RAHEL SANJITO .. ..................... ............... APPELLANT VERSUS THE REGISTERED TRUSTEES OF SDA CHURCH ............................... RESPONDENT RULING 26/08/2014 & 30/10/2014 R. K. MKUYE,J.: This is a second appeal. It arises from the decision of the District Land and Housing Tribunal (hereinafter to be known as DLHT) in Land Case Appeal No. 14 of 2010 in which it dismissed the appeal by the appellant Rahel Sanjito and upheld the Ward Tribunal's decision in favour of the respondent The Registered Trustees of SDA Church Buigiri Church in Dodoma in that they were the lawful owner of the disputed land. The appellant is still undaunted with the DLHTs' decision and hence she has lodged an appeal to this court while 1 ... fronting four grounds of appeal which can be conveniently extracted as here under: ( 1) That the DLHT did not take into account that the appellant has been using the land in dispute since 1971 until the dispute arose and that the village authority did not compensate her after taking it. (2) The DLHT erred in law and infact in deciding that the respondent was the lawful owner of the disputed land while the document produced was forged and the application for right of occupancy did not comply with the proper procedures. (3) The DLHT erred in law and fact in holding that the respondent was the lawful owner of land in dispute without taking into account that there were trees planted by the appellant. (4) That the DLHT erred in law and fact in deciding that the respondent remain in possession of the land in dispute without visiting the locus in quo. When the matter come up for hearing on 26/8/2014 Rev. Sokola for respondent brought to the attention of the court that the appellant Rahel Sanjito was a deceased and wanted to know the locus standi of the person who seemed to represent the deceased. After Amosi Chiuye informed the court of his appointment to be an administrator of the deceased's estate, and upon producing the letters of administration of the deceased' s estate issued by the 2 Urban Primary Court on 26/2/2013, the court on no objection by the respondent granted him leave to represent the deceased. After having noted an anomaly in the Ward Tribunal's proceedings, the court required both parties to address it as to the composition of the Ward Tribunal so as to determine its propriety. The appellant submitted that there were four members comprising of three male members one of whom was the Village Executive Officer and one female member. He clarified that the Village Executive Officer was recording the proceedings. Rev. Sokola for the respondent on his part had the same view as the appellant and he added that the Village Executive Officer recorded the proceedings because the Ward Secretary was a member of SDA. As to the merits of appeal the respondent stressfully argued that the DLHT was right to reach to the decision it made. My thorough scrutiny of the Ward Tribunal's record and in particular the composition of the members who heard and determined the matter before them has revealed as hereunder: "Wazee wa Baraza. Ezekiel Chonya - M/Kiti Peter Mloli - Kny Katibu George Nyamanga - Mjumbe G. Maligana - Mjumbe". (Emphasis supplied) 3 There is no doubt as stated by both parties that there were four members out of whom one was a secretary to the Ward Tribunal. Section 11 of the Land Disputes Courts Act, Cap 216 RE 2002 however, requires the Ward Tribunal to be composed of not less than four members no more than eight members of whom three must be women. All members of the Ward Tribunal are, according to section 4 of the Ward Tribunals Act, Cap 206 RE 2002, required to be elected by the Ward Committee. Section 4 provides: "4 ( 1) Every Tribunal shall consist of - (a) not less than four nor more than eight members elected by the Ward 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). (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". Accordingly to the above cited provisions of the law all members of the Ward Tribunal including the Chairman are elected by the Ward Committee. The secretary of the Ward Tribunal is appointed by the local government authority in which the 4 respective Ward is situated after being recommended by the Ward Committee. As such, the Ward Secretary is not and cannot be a ' member of the Ward Tribunal. In the instant case as was stated by both parties and indicated in the record the Ag Secretary one Peter J. Mloli participated as a member of the Ward Tribunal. Since he was not a member within the above cited provisions, it means his participation was contrary to the law. As the secretary participated as a member contrary to the law, it follows therefore that even the proceedings and decision of the Ward Tribunal was a nullity. This means also that even the proceedings and decision of the DLHT which originated from a nullity were also nullities. In the final event, I declare that all proceedings and decisions of the Ward Tribunal and DLHT are nullities and order that the matter should start afresh before a Ward Tribunal with different set of members. It is so ordered. (R. K. MKUYE) JUDGE 9/10/2014 5 • Right of appeal is explained. ~~_Q__ ) (R. K. MKUYE) JUDGE 30/10/2014 6