NA TZHC DODOMA 1

. i ,, , I

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DODOMA MISCELLANEOUS LAND APPEAL NO. 25 OF 2012 (From the Decision of the District land and Housing Tribunal of KONDOA District at KONDOA in Land Appeal No. 27 of 2011 and Original Ward Tribunal of KINGALE Ward in Application No. 11 of 2010) RASHID A. MNINGA ..................................................... APPELLANT

VERSUS MWAJUMA ADAMU ............................. ........................ RESPONDENT Date of last order: 10/6/2014 Date of Judgment: 20/6/2014

JUDGMENT MZIRAY, J: This is a second appeal by the Appellant. The proceedings commenced in the Ward Tribunal of Kingale where the Appellant unsuccessfully sued the Responde'nt for a parcel of land measuring roughly thirty acres. Aggrieved by that decision the Appellant 1 . L :I 7 1 ---~iAbg_g~d hi-s~-appeal ta the DisJrict Land · and .Housing Tribunal of · · Kondoa but he also lost the appeal. l - . I The _appellant then lodged his appeal to this• Cou~t- advancing three c/ grounds of appea.l ..in his Mem9ran9um .of App~aL . The grounds .of . .appeal are:"'." ~ . - --f-=- 1) That the honourable chairn:,an of the Tribunal erred in law and ·· . . fact by agreeing with '.the compositlor)°·6f the War ·rrit>unal o . d .. f ~- ~ ,i 1 Kingale. .f. . }-- - - 2) That the honoura~le chairman erred in lbw and fClct b_Y;;,~~ ... ·, ' . .. ~ - "-<. ~-~ l I . . misconstruing the e~iden~f! ,.q._cj.dld.f:c;si_QY-~ftie--.Ji,rst _ ·E:~~"1{~-' _;r~ · ~. . . · . . . _. "-. . . . . - . - . -,~_ . witnesses of the App·eflant. .,. \ 3) That the honourable chairm:an erred in. law dhd in. fact by · disregardingJhe fqct.thot the.Appellant had b€;en denied the,_. appearance of · f urtf)er witnesses, · instead · decided on ~----~---'----~--=----'------:----'-,-----c--------~~ --- I presumptions. l -) _, _ - _Qn th~ foregoing_ grounds the Appellant prays for this C:Ourt to allow ,i - - - - - - -- -~

_.____ . - . ....,.- 7 his appeal with costs ·b-y ._qucislitffg·-the-eeGisio.n-=.o.Lttte_,JribuAGl~er"i·d----~'.-~-. i , f. . ~ settirig-oside..the orders.therefrnm. Al the hearing of the Appeal, the 2 _ h I , _I l' 1, ~1;I ! fl-_ ~ ~J Appellant is represented by Mr. Nyangarika, learned Advocate and the Respondent appeared in person. Submitting on the first ground of appeal, Mr. Nyangarika, leorned Advocate argued that the Court was not properly constituted because the composition of the members of the tribunal varied from one sitting to another. He cited examples of the proceedings of 29/12/2010 which had five members and when the tribunal convened for the second time on 14/1/2014 it had two members in addition to the previous five members who sat on 29/12/2010. When the tribunal convened again on 24/1/2011 five members sat and on the day of the decision there were five members present. It is the view of the learned Advocate that the change of members in the different sittings was an irregularity which occasioned to a failure of justice and the remedy is to remit the matter for re-trial de novo. On the second ground of appeal the learned Advocate attacked the procedure adopted by the trial tribunal in recording the evidence. He criticized the procedure of the tribunal putting question to the Appellant in the examination in chief instead of 3 ·. ., allowing the witness to speak

what he wanted to inform the tribunal. He also pointed that as there were contradictory versions given by the Appellant and the Respondent on how the disputed land was acquired, then the tribunal should have believed the version of the Appellant that he took possession of the disputed farm when it was already cleared and dismiss the version given by the respondent that the land was virgin and she was the one who cleared the bush. On the evidence of the Respondent that the disputed land was allocated to her by the Village authority, the learned Advocate reacted that if that was the case, then the respondent was supposed to call evidence from the Village Authority, failure of which vitiates her case. Additionally, the learned counsel pointed out that as there was a plan to visit the locus in quo but such move was blocked by the Village authority then such move must have caused injustice. With all these lacunas and contradictions in evidence he mentioned, he prayed that they should be resolved in favour of the Appellant. Submitting on the last ground of appeal the learned advocate argued that the appellant who had more witnesses to call was 4 denied this right and his case was closed prematurely thereby prejudicing his case. On the foregoing submission he prayed for the appeal be allowed with costs. In reply the Respondent adopted the averments she made in her Reply to the

Petition of Appeal. In addition, she responded to the submission of the Appellant's Advocate. In her response to the first ground of appeal she denied the assertion that the tribunal was not properly constituted. She strongly argued that the members who sat in the proceedings were the same until the matter was finally concluded. On the issue of evidence raised, she maintained that she was the one who cleared the bush and started developing the disputed land. Her answer to the last ground of appeal is that at all material time when the case was going on, the Appellant was being given summons to bring his witnesses but he failed to do so and at the end he was advised to close his case. On the issue of visit to the locus in quo, she stated that it is true it was not conducted after the tribunal had found that such need does not arise as the Appellant and Respondent had separate farms. At the end, the Respondent prayed for the appeal be dismissed with costs. 5 The first ground of appeal is on the composition of the Ward Tribunal of Kingale. The allegation is that the increase or decreased of the members in the sittings of the Tribunal was an incurably irregularity. The relevant provisions _of the law which can assist in answering this issue is section 11 of the Land Disputes Courts Act - Cap. 216 R.E.

2002. This section has to be read together with section 14( l) of the said Act. Section l l reads, "Each Tribunal shall consist of not less than four nor more than eight members whom three shall be women who shall be elected by a Ward Committee as provided for under section 4 of the Ward Tribunal Act". Section 14( l) reads, "The Tribunal shall in all matters of mediation consist of three members at least one of whom shall be a woman". What the two sections requires is that in every Ward Tribunal established to deal with land matters it must have a minimum 6 number of members of four but it should not exceed eight members of whom three must be females and when it sits to adjudicate, it must have three members and at least one should be a female. Upon going through the proceedings of the Kingale Ward Tribunal I find that in all the occasions it sat it had more than three members and in each sitting there was a female member. The tribunal therefore complied to the mandatory provisions of the law. Ground No. I therefore has no merit. Likewise, on the point that the members started to ask the complainant questions first and recorded the answer as the testimony of the complainant, I find in my view that such a procedure did not occasion to any injustice because the totality of the answers he gave tallied with complaint he filed in the Tribunal. The questions were put just like in formal procedure where an Advocate conducts an examination in chief. Considering the level of the knowledge of the members in procedural laws and also taking into consideration the type of questions posed, there is no injustice caused in the procedure adopted by the trial tribunal. The situation 7 of informality is curable under section 45 of the Land Disputes Courts Act- Cap.

216. The other complaints registered by the learned counsel are that there are two different versions given by the parties to the condition of the disputed land at the material time. While the complainant says that the land was cleared when he took possession, on the other hand the respondent says it was virgin land and she was the one who cleared it and the allocation was done by the village authority. In this controversy the trial tribunal believed the version of the respondent. The trial tribunal being the court of first instance was better placed to assess the credibility of the complainant and the respondent and this Court cannot interfere on the findings of the tribunal unless it is seen that it applied wrong principles in its assessment, something which does not appear in this case. There is this other point which the learned counsel raised to the effect that the tribunal planned and arranged to visit the locus in quo but the move was blocked by the Village authority. There is no concrete evidence that the village authority blocked the visit that is 8 one. Two, visit to the locus in quo becomes necessary if it is found that it will shed more light and assist the tribunal to decide the issue in controversy between the parties but if the evidence adduced is sufficient to enable the Court to arrive at a fair decision then such visit is unnecessary. In the instant matter the

evidence was sufficient for the court to decide the matter in dispute hence visit, to the locus in quo was unnecessary. One more point was raised that it was necessary to call the evidence from the Village authority to clarify if real it was the village which allocated the land in dispute to the appellant. When we revisit the evidence of Juma Ramadhani ltaso, Ramadhani Lusa and HassanOi Athumani Bangu they all testified to the effect that in 1994, the respondent cleared the disputed land when it was still a bush. With this evidence which the trial tribunal believed it, there was no point to get more clarification from the village authority. The evidence was sufficient. On the last grounds of appeal, the appellant is complaining that he was denied the chance to call his witnesses. This allegation is not supported by the record. Nowhere in the trial tribunals record which 9 show that the appellant asked to call more witnesses but was refused by the tribunal. As a whole, I find that the appeal is filed without merit. Accordingly I dismiss this appeal with costs. R. E. S. MZIRA Y

JUDGE Right of Appeal explained. R. E. S. MZIRA Y

JUDGE 10