shabani mbaraka vs gerald ralingo 2019 tzhclandd 4 2 september 2019

IN THE HIGH COURT OF TANZANIA [LAND DIVISION] AT PAR ES SALAAM LAND APPEAL NO. 7 OF 2017 (From fhe Decision of fhe District and Housing Tribunal of ILALA District at ILALA in Land C a s e No. 29 of 2016) SHABANI MBARAKA..................................................................... APPELLANT VERSUS GERALD RALINGO...................................................................... RESPONDENT 27/5/2019 & 2/9/2019 A.MOHAMED, J: JUDGMENT The appellant, Shabani M baraka, appeals from the District Land and Housing Tribunal’s (hereinafter "the District tribunal”) decision that quashed and set aside Misc. Application for execution No: 29 of 2016. The said application arose from Land Application No. 18 of 2015 of the Majohe Ward Tribunal wherein the appellant and one Gerald Ralingo, the present respondent, had been plaintiffs. The appellant’s memorandum of appeal contains nine grounds that can be summarized into the following:- 1. That the District Land and Housing Tribunal erred in quashing the Ward Tribunal's judgm ent without properly analyzing the evidence on record. i 2. It erred in failing to consider that Ward Tribunals are not bound by rules of procedure as stipulated in section 13(1) (a) and (b) of the Land Disputes Courts A ct [Cap. 216 R.E. 2002]. 3. It erred in failing to consider that the respondent built a house on the easem ent after the Ward Tribunal’s decision. 4. That up to the hearing of the application for execution the respondent had not filed any appeal or revision application. As can be gleaned from the record, the appellant and Gerald Ralingo, the present respondent were plaintiffs in Land Application No. 18 of 2015 at the Majohe Ward Tribunal. In its judgment, the tribunal ordered both the plaintiff and present respondent as well as Rose July and Bana July (who were not parties in the suit) to each leave two meters from his/her property’s boundaries as an easement to allow passage for passersby. By consent, the appeal was disposed of by w ay of written submissions. In support of the 1st ground of the appeal, the appellant alleges the District tribunal failed to properly analyze the evidence at the Ward Tribunal. Next, the appellant submitted the District Tribunal did not consider that section 13(1) (a) (b) and (c) of the Land Disputes Courts Act (Cap 33 RE 2002) stipulates Ward Tribunals should not be bound by strict rules of procedure. He argued the said tribunal s chief Unction is to mediate between parties in reaching mutually accep tab le solutions. p . In addition on this ground, the appellant argued a trial Court is better placed to assess the credibility of witnesses than an appellate one. He cited Mwenge Ally v. Stanslaus Simon Mushi, Land C ase Appeal No. 25 of 2009 HC (Land Division) in support of his proposition. The third point taken is that Gerald Ralingo built a wall after the Ward Tribunal’s decision. It was the applicant’s averment that Baba July and Rose July agreed to leave the two meter easem ent as per the Ward Tribunal's decision. It is apparent, the appellant did not submit anything on the 4th complaint that it was wrong for the District Tribunal to set aside the Ward Tribunal's decision as there was no pending appeal or application against it. Lastly, he urged this Court to quash and set aside the District Tribunal’s decision and henceforth order execution to proceed. Resisting the appeal, the respondent submitted he was surprised how could a judgment debtor execute a judgment? He pointed out that both he and the appellant were plaintiffs in the Ward Tribunal suit where judgment was entered against them. And that the application for execution was against them as judgment debtors Next, he replied generally against the appeal by stressing the appeal is incom petent. He submitted if the appellant has any claim, then he ought to have filed a fresh suit against him. 3 .The respondent argued it was wrong for the Ward Tribunal to -give orders against Baba July and Rose July, persons who were not ocrty TOthe suit at the Ward Tribunal, it was his view, this contravened Article 13(3) and (6) of the United Republic of Tanzania's Constitution. ■He also pointed out there was in irregularity in the composition of the Ward Tribunal's members that contravened section 4(1) (a) of the Ward Tribunals Act [C ap. 206 R.E. 2002] which provides that a tribunal should be com posed of not less than four members and not more than eight members. He pointed out the Ward Tribunal's judgment did not show the signatures of members present. Lastly, he agreed with the learned District Tribunal Chairperson's invocation of her powers of revision to quash and set aside the Ward Tribunal’s decision. I have carefully ready the parties' contending submissions and examined the record. I should from the outset state the appeal has no chances of success. The first ground alleges the District tribunal’s Chairman erred in failing to consider the appellant's evidence adduced at the Ward Tribunal. With respect. I disagree. Conversely, 1 find the learned District Tribunal Chairperson properly examined the record and found two gross irregularities. First, that the Ward Tribunal erred in giving orders against Baba July and Rose July who were not parties to the suit at the Ward Tribunal. It was therefore against the rules of natural justice for the tribunal to do so without affording them an opportunity to be heard. Secondly, the composition of members of the tribunal Tribunal. How can a judgment debtor file execution proceedings against himself? I also find this ground devoid of merit and is dismissed. I shall not consider the 4th ground since the appellant did not submit on it. It is also obvious there was no appeal preferred or revision proceedings instituted against the Wad Tribunal's decision. For the above reasons, I find, the District Land and Housing Tribunal’s Chairperson properly exercised her powers of revision under section 36 of the Land Disputes Court Act to quash and set aside the Majohe Ward Tribunal’s judgment and orders. Consequently, I dismiss the appeal. In the circumstances of the case, each party shall bear its costs. Order accordingly. A. Mohamed, JUDGE 2/ 9/2019 The right of appeal duly explained. A. Mohamed, JUDGE 2/ 9/2019