19730827 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA (PC) CIVIL APPEAL No.11/73 (From original Civil Case No.32 of 1973 of the District Court of Lushoto District at Lushoto). SIGHEMBOKO ........................... '.. _APPELIdANT... .. 1 versus KOMTBAMKANGARA ......... RONDENT973 JUDGMENT Bramble, J. This is a second appeal against a decision of a primary court which was substantially upheld by the district Court. The brief facts are that the appellant sold a shamba to six people. -1- he respondent claimed that the shamba was his. The respondent took the matter to the Land Tribunal which gave a decision in the matter; he was not satisfied and brought this claim for possession against the appellant. The±e are two issues. The first is whether the respondent could sue the appellant for possession. The answer is clearly in the negative. The appellant could not give up what he did not have. Possession was in the persons who bought the land. The proper course of action was for him to sue them and show that he had a better title than they. It was for them to call the appellant as a witness to establish their title. The trial magistrate made a declaration that the respondent was the owner of the land in question and ordered the respondent to take possession after compensating the purchasers. How could a court make an order to dispossess people when they had not been given an opportunity to be heard. This violates a fundamental principle that a person has a right to be heard in his cause. ince at the dateof the suit the appellant had no title to the land he was the wrong party to be sued and any order made against him would be of no effect. In the second place the respondent himself said that he had taken the matter before the Reconciliation Board. This I take to mean the customary Land Tribunal established under the Customary (Leasehold) Enfranchisement Act. The Tribunal made an order, which unfortunately has not been put in evidence, but which has been admitted by the respondat. By Section 10(b) of the above-mentioned Act the Tribunal has the power to detei'mine whether or not any land is land to which the Act app]Jes. Section 13 of the Act has been amended by Act No.43 cf 1969 and now read in part as follows:- l3.-(l) WIere any party to any proceedings before a Tribinal is aggrieved by an order or decision of the Tribunal.in such proceedings he may appeal there.'from to the Mintster. If the respondent ws disatisfiedi with the decision of the Tribunal his only rrnedy was an Eppel to the Minister The law does not provid€; for an actic; in court in such a case. For these reasons I allow the appeal, set aside the judgment of the lofler courts and order that judgment be entered for the deendant/appel1ait with costs in this court and the courts be] ow. ARUSHA 8 1/3 (c. E. BRAMBLE) JUDGE.