LAND REVISION NO

© THE JUDICIARY OFTANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA (CORAM: HON. AUGUSTINE RWIZILE) LAND REVISION NO. 2 OF 2023 RETISIA KABHUKA COMPLAINANT I APPELLANT I APPLICANT I PLAINTIFF VERSUS SIMONI MIHILA RESPONDENT/ DEFENDANT RULING Fly Notes Facts Ratio Decidendi 22nd of July 2024 Hon. RWIZILE.: This application is for revision that originates from land application No. 16 of 2016 of Muhunga Ward tribunal at Kasulu. The applicant filed a dispute against the respondent over a piece of land situated at Pembwe ward. It was decided in favour of the applicant. Aggrieved, the respondent appealed to the District Land and Housing Tribunal ofKigoma in land appeal No. 14 of2016 which was dismissed for want of prosecution. As a result, via Misc. Land Application No. 25 of 2021, the applicant filed an application for execution before District Land and Housing Tribunal. The application was heard on merit. It was found in the course of preparing its decision that, a Ward Tribunal was not properly constituted, when making its decision. That is, the decision was made by four members including the secretary. The application was therefore dismissed. Parties were advised to file a fresh application because that was a nonexecutable decree. The applicant did not heed to the advice, she has filed this application asking this court to call for and examine the proceedings and subsequent ruling of the District Land and Housing Tribunal in application for execution No. 25 of 2021, dated 6th July 2022 in order to satisfy itself of the correctness, legality and propriety of the said decision and thereby revise it. In the affidavit supporting this application, reasons for so doing were stated. Page. I Hon. AUGUSTINE RWIZILE Before, this application was heard, the applicant passed away. Pius Nkerego Mshenyi was appointed to administer the estate of the late Retisia Kabhuka. An amendment was made to accommodate him as the administrator of the estate of the late applicant. At the hearing, the applicant was under service of Mr. Iganas Kagashe learned advocate, while the respondent was unrepresented. It was the submission of the learned advocate that the Tribunal decided an issue which was not in the knowledge of the parties. He went further and said that the application was for execution. In its decision, the Tribunal decided, on constitution of the Ward Tribunal, and that, a decision was made by inadequate members that sufficiently constitute the quorum. It was his view that, having noticed the error, parties were to be given the right to be heard. The learned counsel submitted; parties were to be called to address the issue. Opposing this application for revision, the respondent submitted that what was done by the Tribunal was proper and therefore asked this court to dismiss this application. Having made a perusal of the record and considered the submissions made by the parties, it is clear from the record that, before the District Land and Housing Tribunal was an application for execution. The same was heard interparte, but in the process of composing its ruling, it came to the knowledge of the chairperson that the Ward tribunal of Muhunga was not properly constituted. The quorum was not made by members enough to make a legally binding decision. Having taken note of that problem, chairperson raised that point suo mottu and decided on it without further consultation. The law requires, under such situations, parties ought to be called to address the Tribunal on the legality or otherwise of the decision made by the Ward Tribunal. Below is the reflection of what transpired in the decision of the Tribunal; ' ... nimepitia mwenendo was shauri la baraza la kata Muhunga na kuona kwamba kwenye mwenendo halisi wa shauri pamoja na hukumu ya baraza la kata hakuna majina ya wajumbe waliosikiliza na kuarnua shauri hili. Majina yanaonekana kwenye nakala ya hukurnu iliochapishwa ambayo irneambatanishwa na rnleta maornbi katika maombi haya arnbapo rnajina ya wajumbe yaliorodheshwa ni: JONAS! KAREJO (Mwenyekiti), MWAMJSA RAMADHANI (Katibu), SAKINA MDULIKO (Mjumbe) na MANUEL! MPINDANYJ (Mjumbe) '. From the above, the decision was that: - "Kwa mujibu wa kifungu cha 5(3) cha sheria ya Mabaraza ya Kata Sura ya 206 rnarejeo ya 2019, katibu wa baraza la kata hatakiwi kushiriki kwenye hukumu ni wazi baraza la kata Muhunga kwenye kusikiliza shauri hili na kuliamua lilikuwa na wajurnbe watatu ... " Finally, it was concluded that; - ' ... ni wazi uamuzi wa baraza la kata Muhunga uliofikiwa na akidi isiyo sahihi kisheria hautekelezeki na kwa sababu hiyo, mwenendo parnoja na hukumu ya baraza la kata ni batili na vinafutwa. ' From the above, it was apparent to the tribunal that, names of the members were not listed, except chairman, secretary and two other members. That, it was against section 5(3) of the Ward Tribunals Act, Cap 206. The above conclusion led to nullifying the proceedings and the decision of the Ward Tribunal for being improperly procured. Page.2 Hon. AUGUSTINE RWIZILE I am not sure, if that was right, because composition of the Ward Tribunal is stated under section 4 of the Act and not section 5(3) as the Tribunal purported to hold. That is why, it was important for the Tribunal to call the parties and have an informed opinion before arriving at the decision it unilaterally arrived at. Normally, under the principle of fair hearing, when a judgment is being prepared and an issue arises, which the court considers sufficient to determine the dispute before it, and that it was not party of the arguments of the parties, it is put under obligation to recall them for the purposes of hearing their opinion. This was observed in the case of Pili Ernest vs Moshi Musani, (CAT), Civil Appeal No. 39 of 2019 on page 6 and 7; " ... in the course of composing his judgment posed a question suo motu on whether it was reasonable to entertain an appeal which to him was out of time. He did not invite the parties as he ought to have done, in order to address him on this crucial point which he found necessary in the determination of the appeal before him ... " In the end, the court held; " ... Thus, in view of what we have endeavoured to discuss, we are satisfied that the parties were denied the right to be heard on the crucial question that the first learned appellate magistrate had raised and we are further satisfied that the denial was in violation of the fundamental constitutional right to be heard and the parties were prejudiced. This renders the judgment of the District Court a nullity. In the event the judgment and decree of the High Court dated 13th October 2016 emanatingfrom a nullity is equally nullified ... " As shown, parties before the Tribunal were denied the right to be heard on a crucial issue, non-compliance renders the decision a nullity. The effect of non-compliance with the aforementioned principle, was restated in the case of David Mushi v. Abdallah Msham Kitwanga, (CAT), Civil Appeal No. 286 of2016 on page 18; "It is a cardinal principle of law that where a judicial decision is reached in violation of the right to a fair hearing as is the case in this matter, such decision is rendered a nullity and cannot be left to stand. " Guided by the above cited case laws, I hold, the decision of the District Land and Housing Tribunal on execution is nullified. Therefore, this application is granted. I make no order as to costs. Dated at KIGOMA ZONE this 22nd of July 2024. AUGUSTINE RWIZILE JUDGE OF THE HIGH COURT Page. 3 Hon. AUGUSTINE RWIZILE