20171006 TZHC Mwanza

I ______J 11 u (j-/UCu~ IN THE HGH COURT OF TANZANIA (MWANZA REGISTRY) ATMWANZA . LAND APPEAL NO.18 OF 2015 . (Arising from the District Land and Housing Tribunal for Mara at Musoma Land Appeal No. 01/2014/ Original Magange Ward Tribunal in Application No. 12 of 2013) SANAHI MWITA SANAHI .. .......................................... .APPELLANT VERSUS CHACHA MARO MAKEMBA ........................................ RESPONDENT Last Order: 03/08/2017 Judgment: 06/10/2017 JUDGMENT MAKARAMBA, J.: The appeal before this Court originates from the decision of the District Land and Housing Tribunal for Mara at Musoma in Land Appeal No. 01 of 2014 before Hon. Ilanga, M.T. Esq the_ Chairman. Briefly, in 2013 the Appellant, Sanahi Mwita Sanahi, lodged a suit in Application No. 12 of 2013 before the Magange Ward Tribunal claiming against the Respondent, CHACHA MARO MAKEMBA for the recovery of the suit land, which suit ended in favour of the Appellant. The Respondent having been dissatisfied with the decision, successfully appealed against it before the District Land and Housing Tribunal of Mara at Musoma in Land Appeal No. 01 of 2014, in which the Respondent Page 1 of 5 ~· J.:-., ,.,, t f· ·'1 '-~ was declared the legal owner of the disputed land. The Appellant is 'l aggrieved by the decision and has appealed against it before this Court on the following grounds, namely; 1. Thal the Chairman of District Land and Housing Tribunal for Mara grossly misdirected on point of law for admitting new evidence which he recorded contrary to law. 2. Thal the Judgment of the learned Chairman of the District Land and Housing Tribunal is silent on how the evidence was gathered and the purpose of the interview at the locus in quo and whether it was on oath or how. 3. Thal as per evidence recorded at the trial Tribunal the Appellants young brother told the Ward Tribunal that the disputed land belong to the Appellant. 4. Thal the Respondent was an invitee in the disputed land. Mere staying in the disputed land for more than 12 years does not legalize one to own land without considering other factors. 5. Thal the Respondent being the son of the young brother of the Appellant he stayed in the disputed land since he. sold his fathers land to Nyarori Murimi and Ragita Nyamhanga i.e 1989 and 1992. 6. Thal after he had sold his land he had nowhere to live/ hence the Appellant invited him to stay in land. ~ Page 2 of 5 :1 V l ,~ ·; - j "_! 1 j The Appellant prays before this Court that; (a) The Appeal be allowed with-costs. I (b) The decision of the District Land and Housing Tribunal be · quashed In prosecuting the appeal, ·Mr. Thomas Makongo, learned Counsel represented the Appellant and Mr. Cosmas Tuthuru, learned Counsel represented the Respondent. The appeal was disposed of orally and hence this Judgment. On the respective arguments by the learned Counsel for the parties, I have realized that, apart from submitting on the grounds of appeal as stated in the Petition of Appeal, Mr. Makongo learned Counsel for the Appellant has raised a new legal issue which essentially touches on t~e jurisdiction of this Court to determine the instant appeal on its merits. Mr. Makongo argued that, the Secretary of the Tribunal was involved in making the decision before the Magange Ward Tribunal, as if the Secretary was a member of the Tribunal, which is contrary to the provisions of section 5(3) of the Ward Tribuna~ Act, No.· 7 of 1985. According to Mr. Makongo, the Secretary of the Tribunal is not pe_rmitted to participate in the decision making process. In his reply, Mr. Tuthuru learned Counsel for the Respondent stated that, the legal issue raised by Mr. Makongo suffices to declare the entire proceedings and decision of the Magange Ward Tribunal a nullity and equally the appeal before the District Land and Housing Tribunal for Mara at Musoma. According to Mr. Tuthuru, to proceed with the determination of Page 3 of 5 the appeal on its merits would be a total waste of the precious ti_me. and resources of this Court. On the respective arguments by the learned Counsel for the parties with regard to the issue of the competency of this Court to proceed with the determination of this appeal, with which I am at one with, it was a fatal procedural error for the Secretary of the Magange Ward Tribunal to participate in the hearing and in making the decision of the Magange Ward Tribunal. It is a matter of statutory requirement as to who should constitute a coram of a Ward Tribunal for purposes of decision making, and the Secretary is not among those members of a Tribunal for that purpose. The Judgment by the Ward Tribunal which is on record shows very clearly that, the Secretary of the Tribunal indeed participated in the hearing and · also in making the decision in Application No. 12 of 2013 which was before the Magange Ward Tribunal. As Mr. Makongo rightly submitted, the participation of the Secretary of the Tribunal in the decision making was contrary to the provisions of section 4 of the Ward Tribunal Act, [Cap.206 R.E. 2002]. It is rather unfortunate that this apparent error on the record of the Magange Ward Tribunal escaped the attention of the District Land and Housing Tribunal of Mara at Musoma in Land Appea_l No. 01 of 2014, otherwise. it would have made the requisite orders. The Secretary of the Tribunal having participated in the decision making process of the Magange Ward Tribunal in Application No. 12 of 2013 · in contravention of the law, this will render the resulting proceedings to be a nullity and consequently the entire Proceedings and Decision by the .Ward Tribunal of Magange in Application No. 12 of 2013 are hereby quashed. Page.4 of 5 \j The District Land and Housing Tribunal of Mara at Musoma having proceeded to determine Land Appeal No. 01 of 2014 on the basis of tainted proceedings, similarly the entire proceedings and decision by the District Land and Housing Tribunal of Mara at Musoma in Land Appeal No. 01 of 2014 are nullity and are hereby quashed. _ This Court having quashed the entire proceedings and decisions by the two lower Tribunals, there is nothing left by way of appeal for this Court to determine on merits for it is deprived of jurisdiction. Consequently, the appeal is hereby struck out. In the premise, the record is hereby remitted to the Magange Ward Tribunal to try the matter de nova. Considering that the error on the face of the record of the proceedings was committed by the Magange Ward Tribunal and was not therefore of - the making of the parties themselves, f shall not make any order as to costs. Each party shall therefore bear its own costs in this appeal. It is so ordered . ./ \G1f CO(f.1;,,, R.V.MAKARAMBA /:I:,. 1 -¼-. I JUDGE '"-... ---- 1/ ./ 06/10/2017 \ '~.,,.,.,✓'- Page 5 of 5