sabaya loitai vs nemanga wanga 2014 tzhc 2252 29 may 2014

IN THE HIGH COURT OF TANZANIA AT ARUSHA LAND REVISION NO. 8 OF 2013 (C/F District Land and Housing Tribunal of Arusha at Arusha in Land Appeal No. 50 of 2009 Originating from Kiranyi Ward Tribunal in Land Application No. 141 of 2008) SABAYA LOITAI............................................................. APPLICANT VERSUS NEMANGA W ANGA............ .........................................RESPONDENT (From Ruling of District Land and Housing Tribunal of Arusha at Arusha) (M.R. Makombe, Chairperson) RULING MUGASH A. 3. r The applicant has under section 43(1) (b) of the Land Disputes Courts Act, [CAP. 216 R.E, 2002] moved this Court to revise and satisfy itself of the legality, correctness and propriety of the decisions made by the trial and appellate tribunals. The hearing of the appeal was conducted by written submissions where M/S Kimale and Company Advocates represented the applicant while the respondent had services of M/S John J. Lundu & Co. Advocates. The applicant's counsel submitted that; the decisions which the applicant prays to be revised are those both made by Arusha District Land and Housing Tribunal of Arusha in Land Appeal No. k\ of 2005 and Appeal No. 59 of 2009. The two appeals originated from Ward Tribunal in Land Applications No. 4 of 2005 and 141 of 2008 respectively. In the trial, parties in land application No. 4 of 2005 were s i k a n g a i l e k i n g i l i e and SABAYA l o i t a i in which, s i k a n g a i l e k i n g i l i e emerged the winner. It was further submitted that, in land application No. 141 of 2008 parties were NEMANGA WANGA and SABAYA LOITAI whereas NEMANGA WANGA won. The applicant's counsel added that, in those two land applications; parties litigated over the same piece of land. On appeal, in Land Appeal No. 11 of 2005 originating from land application No. 4 of 2005 ownership was granted to s a b a y a l o i t a i while in land appeal No. 50 of 2009 originating from land application No. 141 of 2008, ownership was granted to n e m a n g a w a n g a . The applicant's counsel further submitted that, the applicant could not have made a formal application to the High Court because this Court had made a decision against Land Appeal No. 11 of 2005 that is, in favour of sa b a y a l o i t a i . She added that, s ik a n g a i le k in g ile prefers an appeal to the Court of Appeal of Tanzania. Besides; the applicant's counsel argued that, the Ward Tribunal in Land Application No. 141 of 2008 was functus officio to adjudicate the matter even if the parties are different. In the circumstances; the applicant prays for this Court to revise the decisions made by the District Land and Housing Tribunal in Land Appeals No. 11 of 2005 and 50 of 2009. In response; the respondent's counsel submitted that, this Court has no jurisdiction to revise the proceedings in Ward Tribunal under section 43(l)(b) of the Land Disputes Courts Act (supra) because the powers to revise regarding the correctness, legality and propriety of the decisions made are not found in section 43(l)(b) of the Land Disputes Courts Act (supra), rather; section 30(1) of the Magistrates' Courts Act, [CAP. 11 R.E, 2002]. Furthermore; the respondent's counsel argued that, if there were any complaints against the Ward Tribunal, the same ought to have been adjudicated by the District Land and Housing Tribunal in its appellate or revisional jurisdiction. Besides; section 43(l)(b) of the Land Courts Disputes Courts Act (supra) are in respect of proceedings emanating from the District Land and Housing Tribunal and not Ward Tribunals. It is on record that; land application No. 4 of 2005 before Kiranyi Ward Tribunal involved sabaya o lo ita i lukum ay and sik a n g a i lik in g e lie with appeals preferred to the District Land and Housing Tribunal No. 11 of 2006 and the High Court vide Land Appeal No. 6 of 2006. In all these; s a b a y a o l o i t a i l u k u m a y was declared lawful owner. On the other hand; the respondent n e m a n g a w a n g a sued the applicant sabaya lo ita i before the Ward Tribunal in Land Application No. 141 of 2008 where the applicant lost. Aggrieved; an appeal was preferred to the District Land and Housing Tribunal that is, Land Appeal No. 50 of 2009 which was dismissed for being time barred. 3 In the circumstances; it is evident that the applicant pursued his right by way of appeal in which, there was no complaint on what transpired in the trial tribunal which presupposes that the trial tribunal was in compliance with .the law. Having lost the case on time limitation; the applicant preferred the present application challenging validity of the proceedings in the Ward Tribunal Land Application No. 141 of 2008. Opting to pursue his rights through the aftermath of the lost appeal while the applicant did not prefer an appeal against the decision of the District Land and Housing Tribunal in Land Appeal No. 50 of 2009; moving this Court to invoke revisional powers at this stage is tantamount to lodging an appeal through the back door and abuse of the Court process. Besides; the allegation that the subject matter is the same and parties are different does not render the Ward tribunal functus officio. This is because; the standard of proof in civil cases is evidence within balance of probabilities. As such; if the suit property belongs to the applicant and none other, it is upon the applicant to parade evidence as to how he possesses a better title over his adversary. In that regard, somebody else can come up with concrete evidence to prove a better title of ownership over what was proved in the former case involving different parties. In the premises; the application is non meritorious and is dismissed with costs. Right of appeal is explained. the applicant but in absence of the respondent. 5