scannedLAND CASE APPEAL NO 28440 OF 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE APPEAL N0.28440 OF 2023 (From Appeal Judgment of District Land and Housing Tribunal for Kisarawe District, Land Appeal No. 185 of2022, Originating from the Ward Tribunal of Marumbo Ward in Application No.5 of2020) SULTAN SALUM MKUMBI............................................APPELLANT VERSUS SAID SALUM MBA YA............................................... RESPONDENT RULING Date of Last Order:13.11.2024 Date of Ruling: 19.11.2024 T.N. MWENEGOHA, J The appellant raised four grounds of Appeal for determination as follows; 1. That, the Honourable Chairperson erred in law and facts for holding that the Ward Tribunal had seized with jurisdiction to entertain Land Application No. 5 of 2020. 2. That, the Honourable Chairperson erred in law and facts by holding that, the Ward Tribunal properly analyzed and considered evidence by the appellant herein. 3. That, the Honourable Chairperson erred in law and facts for holding that the Trial Ward Tribunal was properly constituted. 4. That, the Honourable Chairperson erred in law and facts by holding that Land Application No. 5 of 2020 was filed within the legal prescribed time limit. i The Appeal was Ordered to proceed by way of written submissions. However, as I was going through the case, I came across an illegality that needed the attention of the Court. That, the secretary of the Tribunal was part of the members who participated in the hearing and Decision of the Trial Ward Tribunal. The parties were notified and Ordered to address the Court on the issue, through written submissions. Unfortunately, both parties failed to comply with the Order. In addressing the issue raised, I will start by referring to the provision of section 4 of the Ward Tribunal Act, Cap 206, R.E 2002: - 1. Every Tribunal shall consist of a) Not less than four nor more than eight other members elected by the Ward Committee from amongst a list of names of persons resident in the ward compiled in the prescribed manner; b) A Chairman of the Tribunal appointed by the appropriate authority from among the members elected under paragraph (a). 2. There shall be a secretary of the Tribunal who shall be appointed by the local government authority in which the ward in question is situated, upon recommendation by the Ward Committee. I went through the case file of the trial Ward Tribunal of Marumbo and found that from the first day of hearing of the case on the 02/09/2020 up to the date of its decision on the 28th, November 2021, the composition of the Trial Tribunal was as follows; - 1. Musa Abdalah Zigo---- Chairperson 2. Sulatan Sultan Muhalatagwa---- Secretary 3. Masha Mohamed Matala-Member 4. Salum Omali Sultan------ Member 5. Omari Jumanne Zombe—Member 6. Athuman Salum Nipe----- Member 2 That is to say, the secretary of the Tribunal participated in deciding the matter while he is not a member. He was not supposed to be part of the members listed. This was observed Lucia Masengwa versus Joseph Lutambi, Land Appeal No. 8 of 2020, High Court of Tanzania (unreported) and also in Nada Qori versus Isaki Gilba, Misc. Land Appeal No.2 of 2013, where it was observed that... "A Secretary is not a Member of the Ward Tribunal but an employee of the Local Government Authority. In the circumstances, as the Decision is signed by the secretary, the same is tantamount to dispute being determined by the secretary who is not a member of the Ward Tribunal and such Decision is illegal". Therefore, the participation of Sulatan Sultan Muhalatagwa in the Decision of the Trial Ward Tribunal as a member, vitiated the said Decision, hence the same is illegal. The District Land and Housing Tribunal for Kisarawe, being the 1st appellate Tribunal, was duty bound to correct this anomaly, failure of which has rendered its Decisions null and void too. In the end, the whole proceedings of the Trial Ward Tribunal is revised, its Decision is quashed and the Orders are set aside accordingly. Parties are restored to their original position and if any among them is interested, he should file afresh case at the Tribunal competent to try the same. Judge 19/11/2024 3