robert majondo vs pancras kamilu 2012 tzhc 188 29 february 2012

THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT MWANZA MISC. LAND CASE APPEAL NO. 17 OF 2007 (From the Decision o f the District Land and Housing Tribunal of MWANZA Region at MWANZA in Land Case Appeal No. 61 o f 2006 and original Ward Tribunal o f KIRUMBA in Cause No. 15 of 2006.) ROBERT MAJONDO ............ ....;............... ... APPELLANT

VERSUS PANCRAS KAMILU.................................. RESPONDENT

JUDGMENT A.F. Ngwala,J. This is second appeal by the Appellant. The suit originates from the Kirumba Ward Tribunal in cause No. 15/2G06 where the Respondent successful sued the Appellant. The subject matter of the case is a controversy over stones which were dug by the Respondent. In the year 2006, the Respondent was allowed by the local government authorities to prepare a pathway by digging stones ground the area which was designed to be a road. The Respondent dug the rocks (stones) and gathered them around. Later on the Appellant took the rocks to his premises with claims that the rocks have damaged his house. The Respondent charged the Appellant for that cause in the Ward Tribunal (trial Tribunal). The trial Tribunal convicted the Appellant and sentenced him to three months imprisonment, gave its decision as follows:- “ Baraza Linamtia hatiani kifungo cha miezi mitatu kwa kufanya kazi za jam ii katika Halmashauri ya Jiji la Mwanza, chini ya Kanuni ya Adhabu sehemu D ya 1985 ya Halmashauri ya Jiji kifungu cha F.299 ili liwe fundisho . kwake na watu wengine wenye tdbia hiyo. Amfidie usumbufu wa kutopata mawe hayo shs. 80,000 / = akimaliza adhabu yake. ” The appellate District Land and Housing Tribunal upheld the Ward Tribunal’s decision. When the hearing on appeal, on the 6th March 2006 in accordance with the provisions of Section 39(1) of the Land Disputes Courts Act, [Cap.

216 R.E. 2002]; the court did not however, proceed to inquire into the truth of the facts which were stablished by the appellant and whether the trial tribunal had properly directed to appellant to appeal against the conviction and sentence in the District Land and Housing Tribunal. The here as if will be shown that as the law stand, the question is was it proper and whether the appellant had a legal course to pursue his appeal in the District Land and Housing Tribunal of Mwanza? In this appeal, upon perusing the records, my reflection, firstly is to satisfy myself if this is a land dispute and whether the 1st appellate Tribunal is vested with powers to entertain an appeal of this nature. As I have stated above, this case is concerned with appropriation of stones/rocks. It does not involve any claim of land or claim of landed property. It is, therefore, open that this is not a land case. There is no dispute that the Ward Tribunals are vested with Criminal jurisdiction under the Ward Tribunals Act, [Cap. 206 R.E. 2002]. in that case, the District Land and Housing Tribunal was not vested with jurisdiction to entertain an appeal arising from the decision of a Ward Tribunal sitting on Criminal jurisdiction. The District Land and Housing Tribunal, therefore, ought to have reject the appeal than deciding it on its merits. The proper forum for appealing against the Ward Tribunal

decision when exercising Criminal jurisdiction is to appeal to a Primary Court as provided for under Section 20(1) of the Ward Tribunal’s Act, [Cap. 206 R.E. 2002]. For the said reason the proceedings, Orders and Decree of the 1st appellate Tribunal are null on the grounds that the District Land and Housing Tribunal lacks jurisdiction to entertain the said appeal in accordance with the provisions of Section 4(2) of the Land Disputes Courts Act, [Cap. 216 R.E.2002] which read as follows “(2) Magistrates Court established under the Magistrate's Courts Act shall have and exercise jurisdiction in all proceedings o f a criminal nature under the Land Act and the Village Land Act, ” The appeal was unproperly lodged because the matter is not a land case. I appreciate the opinion of wise assessors of this Court for advising the Court to order this matter to be assessed de novo. In the end result, I quash the decision of the District i Land and Housing Tribunal for being determined without jurisdiction, consequently. I allow this appeal. My reasons! are not based on the Grouncis of Appeal set forth in the Petition of Appeal. The Appellant may file his appeal in the appropriate Primary Court, subject to the Law of Limitation of Actions. In the circumstances of this suit I make no orders as i to costs. Each party shall bear his own costs. • 1/3 /2012. Coram : Hon. A.F. Ngwala,J. Appellant : Present in person Respondent : Present in person B/c: L. Mtaki. Court: Judgment delivered in the presence of the parties. 'f e w Court: Right of Appeal to the Court of Appeal explained. A.F. Ngwala,

JUDGE 29/02/2012.