ramadhani ngonyani vs eustaki chilongo 2018 tzhclandd 448 13 july 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM MISC LAND APPEAL NO.15 of 2018 (From the decision of the District Land and Housing Tribunal of KILOMBERO in Land A p p ea l No. 273 of 2016 and original Ward Tribunal of M A N G ’ULA in Complaint No. 30 of 2016] RAMADHANI NGONYANI................................................APPELLANT

VERSUS EUSTAKI CHILONGA....................................................RESPONDENT D ate of Last O rd e r: 22.05.2018 D ate o f Ju d g m e n t: 13.07.2018

JUDGMENT S.A.N WAMBURA, J: Aggrieved by the decision of the District Land and Housing Tribunal of Kilombero/Ulanga in Land Appeal No. 273 of 2016 which sustained the decision of M ang’ula Ward Tribunal the appellant Ramadhani Ngonyani has filed three grounds of appeal being;- 1. That the District Land and Housing Tribunal b a sed its judgm ent on a point of law raised suo motto without affording parties an opportunity to address the tribunal on that point. i 2. That the District Land and Housing Tribunal having found out that the original suit was incom petent from its admi9ssion at the trial M a n g ’ula Ward Tribunal had to nullify all p roceedings, judgm ent and resulting orders of the trial Ward Tribunal but it did not.

3. That the District Land and Housing Tribunal erroneously dismissed the a p p e a l without nullifying p ro ceedin g s and decision of the original c a se before the trial Ward Tribunal despite holding it as incom p eten t/d efective. He thus prayed that the said decision be quashed and the ap p eal be upheld with costs. In his reply to the Petition of Appeal the respondent Eustaki Chilonga challenged the appeal praying for its dismissal with costs. The brief facts of this ap p eal are that, the appellant sued the respondent for trespassing into his piece of land measuring one a cre . He alleged that the disputed land belonged to his late father who was allocated the sam e by M ang’ula Village Council. 2 On the other hand, the respondent disputed the appellant’s claim and further contended that the suit land legally bought by him on behalf of his sister who is the administrator of the estate property of her late father. That he purchased the suit land from Shomary Majidi and Yasin Ngonyani sometime in 2016. The trial Ward Tribunal found in favour of the respondent and declared him as the lawful owner of the suit premises. Aggrieved by the said decision the applicant ap p ealed to the District Land and Housing Tribunal. It sustained the decision of the trial Ward Tribunal and dismissed the ap p eal. He has now filed a second ap p eal. At the hearing of this app eal the

appellant enjoyed the legal services of Mr. Msigwa A d vo cate whereas the respondent appeared in person unrepresented. 3 The court thus granted leave for hearing of the appeal to proceed by w ay of written submissions. I thank both parties for adhering to the schedule. On the 1st ground of ap p eal, Mr. Msigwa contended that the Chairm an erred in law in dismissing the appellant's app eal on the issue of Locus standi without calling upon the parties to address him on it. He was of the view that though the District Land and Housing Tribunal was entitled to raise the point of law suo motto yet it had to call upon the parties to address it on such point before the judgment. Regarding to the 2nd and 3rd grounds of ap p eal, Mr. Msigwa averred that the District Land and Housing Tribunal ended up merely dismissing the appellant’s appeal leaving as valid judgment and orders of the trial Ward Tribunal despite its own finding at page 3. 4 He stated that the Chairm an did not nullify the decision, proceedings and orders of the trial Ward Tribunal despite declaring it a nullity. To cem ent his argument, the appellant referred to the cases of Beldo P. Kikao and Afisa Utawala Bishop House Labour Revision No. 9 of 2011 HC Iringa, and the case of Hassan Abubakar Vs Martin Mgombela and 2 Others Miscellaneous Land Application No. 230 of 2015. He therefore prayed for the ap p eal to be allowed

with costs. In reply to the grounds of ap peal, the respondent submitted on the three grounds of ap p eal jointly. He averred that the ap p eal at the District Land and Housing Tribunal w as incom petent in law as the appellant had no c a p a c ity or locus standi to institute the proceedings in both the trial Ward Tribunal and Appellant Tribunal. He therefore prayed for the appeal to be dismissed with costs. 5 Having considered the rival submissions of both parties, there is no dispute that the first appellate Tribunal dismissed the appellant’s app eal on the ground that the app eal was incom petent for being filed by a person who had no c a p a c ity or locus standi to prosecute the matter in both the trial Ward Tribunal and the appellate Tribunal. What is in dispute is that why did the Chairman dismissed the a p p e a l without nullifying the proceedin g s and orders of the trial tribunal after it found out that the appellant had no locus standi to sue the resp on den t? Upon careful perusal of the court records, there is no doubt that the appellant instituted the suit against the respondent at the Trial Ward Tribunal claiming that the disputed land was owned by his late father. As correctly reasoned by the first appellate Tribunal the appellant had no c a p a city to sue over the premises of his late father without establishing that he was legally authorized to sue

on behalf of his late father. Moreover although the District Land and Housing Tribunal suo moto found that the appellant had no c a p a city to sue the respondent, it ought to have called upon the parties to address it on the sam e before entering the judgment as it was held in the case of Peter Ng’homango Vs The Attorney General, Civil Appeal No. 114 of 2011 CAT Mwanza (Unreported). The first appellate tribunal ought to have nullified the proceedings and orders of the trial Ward Tribunal after having found that the appellant had no c a p a c ity to sue. I therefore believe that the trial Tribunal erred in law in dismissing the appellant’s ap p eal without nullifying the proceedings and Orders of the trial Ward Tribunal. Having said that, the app eal is allowed in its entirety with costs. The proceedings and decisions of M ang’ula Ward Tribunal in Complaint No. 30 of 2016 and District Land and Housing Tribunal of Kilombero in Land Appeal No. 273 of 2016 are nullified and Orders therein are set aside. S.A.N.^AMj^RA

JUDGE 13.07.2018 8