20140917 TZHC Iringa

IN THE HIGH COURT OF TANZANIA [LAND DIVISION]

AT IRINGA MISCELLANEOUS-LAND CASE APPEAL NO. 17 OF 2010 (From the decision of the Distrjct Land and Housing Tribunal of Iringa District at Iringa in Land Case Appeal No. 3 of 2010 and <; Original . Ward Tribunal of Mkwawa Ward in Case No. MK/ 13 of 2009) VITUS KASIKE .... ~ ........... APPELLANT

VERSUS ELIZABETH NINDI ........ RESPONDENT ~J/7/2014 & 17/9/2014

JUDGMENT MADAM SHANGALI, J. The appellant Vitus Kasike has filed this appeal intending to challenge the decision of the District Land and Housing Tribunal for Iringa (DLHT) in Misc. Application No. 3 of 2010 originating ' from Mkwawa Ward Tribunal Land -Case No. 13/2009. Before Mkwawa Ward Tribunal the appellant was sued by the present • respondent ELI_ZABETH NINDtJqr~. .tresp~ssing, ·-· . .;.--, '. occupying and ,, 1 ' .. ·- l,- ' ~. ..,,. ---2.""_ _ --•- -------, "-- .·"!.:..-------.,----- ~ - , .. rtf ,r ~~- . \ ;· ·. ; 1i ..• erecting :a hu~lding on. her piece of land. On- 20/11/2009 the appellant appeared before the trial Vvard -Tribunal and claiined that he was not the owne~ of the alleged piece of land but a n1.ere witness because the laJ.7-d was entrusted to him by one Mama Sambagi. When the case was fixed for hearing before the Vlard Tribunal neither the appellant nor Mama Sambagi appeared despite several efforts by the Ward Tribunal to summon them. As a result the matter was heard exparte and the suit premises/land was declared the propel_'"ty of the respondent on 11 / 12;~009. Later on the respondent filed Misc. Application No. 3/2010 before the Iringa District Land and Housing Tribunal seeking for execution.of the decree of the trial Ward Tribunal in Land Case No. 13/2009. In that application the appellant who appeared as an objector raised several issues regarding

to the other pending cases/appeals between Mama Sambagi and the respondent but the· District Land and Housing Tribunal rejected the objection 1 and granted the application for execution as prayed. Dissatisfied with that decision, the appellant has now filed this appeal based on four grounds of appeal namely; 1. That the learned Chairman erred in law in allowing one EDGAR NINDI, who was not a party to the proceedings, to conduct the matter· which was 2 . ··-:- '• ~. -~-·, ~- . -· . - ~~: ,~- ~ , . before him. and finall:i come up with a final decision.

2. That the learned Chairman and .the Mkwawa Ward Tribunal erred in law in entertaining a matter touching on a dispute where the real contending parties are ELIZABETH NINDI, MAMA SAMBAGI and ALEX KASIKE; \TITUS KASIKE is just being dragged 'iiiia:dispute which does not concern him.

3. Th.at the learn€d Chairman grossly erred in taking .. -.· judicial notice of the judgement of the High Court - between ELIZABETH NINDI' and MAMA SAMBAGI which said judgement is being contested before the High Court by MAMA SAMBAGI.

4. A copy of the ruling/judgement of the District Land and Housing Tribunal was sup:plied to !he appellant· on 25/06/2010. The provision of Section 38 of the land Disputes Courts Act, Cap. 216 R.E. 2002 are hereby complied with. In this appeal the appellant was represented by Mr. Kingwe lear:ned advocate while the respondent was represented_ by the late Mr. Mkwata and the matter was later taken over by Mr. ' -Zuberi Ngoda learned advocate. On the request: of both__ ~ ; , advocates the appeal was argued by way of written submission. 3 I must point it out here. that after going th.rough the written submis~ions .. . filed by· . both advocates and having perused the ~ 1. , I • • • record of proceedings and decisions of the lower_ tribunals, I have · discovered that this is a very interesting apf>~,al succumbed t<? unnecessary protracted arguments by the appeilant. The record of proceedings of the·: ...... ~_rial , Ward Tribunal indicate that the decision in execution against the appellant was given exparte on 11/12/2009. The appellant never attempted to set it aside and .~ instead he appeared as an objector in the execution proceedings hence appellant. ·' · Be as it may, the first ground of appeal has no merit whats:oever. Section 13 (1) of the Land Dispute Courts (The District Land and Housing Tribunaij Regulations, 2002 provide; __ >: .. · (1) ·. The _parties to the proceedings

may ·during the ·· .. , . .·· ..... ' . : :0-,earing ·of proceedings be represented by an advocate•. or . any other representative. - (Emphasize mine). The record of proceedings of the lower tribunal is clear that Edgar Nindi was duly appointed and granted Special Power of Attorney to represent the respondent on 6 th April, 2010 and that document is vividly appearing in the District Land and Housing Tribunal case file. 4 • .,\ ~, .. - ~... • :l.: •• • .~· ~ -.!.i " On the second ground of appeal the appeilant ·who was not a party in the hearing and determination of land Case No. 13/2009 before Mkwawa Ward Tribunal is merely attempting to drag this court to the issues which were determined and resolved in that case against him. . If the appellant concedes · and admit . . ~ ( that the land in~"dispute is -riot his-·property· and that he was a mere supervisor of the construction and that he was supposed to I be a mere witness, why is he prolonging this matter by filing this unnecessary app~a.1:·:.•Ii1 n1y considered opinion having lost the . case before the trial Ward Tribunal the appellant· ·shotild have surrendered the -piece of land in dispute to the execution process and leave the matter to be contested by the so called real owners.· The fact that the- appellant was declared a looser before the trial Ward Tribunal means that the execution must be carried against. him. The

appellant has been dragging other people in his case against the respondent in order to create confusion and prolong the matter for no apparent reason. The decision of the trial Ward Tribunal was against him1 and th~ same should be executed against him. The second ground of appeal has no merit at all. Regarding to the third ground of appeal the appellant have no justification to complain agmnst the District Land and Housing Tribunal to take judicial notice of the Judgement of the High Court between the respondent and Mama Sambagi because the alleged judgement and the pendJng appeal before the High ~ · _<?,ourt have nothi~g to do with the appellant's evicti~n fr~!Il th_~·- 5 ..-.~. ?'. ,..;.•' ..• •-' ": ~-.,=>' •••/: - . . _, - land in. dispute.· The alk:ged judgement and pending appeal is a matter between the respondent and iv1ama Sambagi and that should- be treated separately and determined on its own merits. I took pain·· to call and peruse the alleged p~nding matter. Misc. Land Case Application No. 23/2q_10 between Mama Sambagi and Eliza~-e~I?- -~indi and discovered that it is a separate case which start~d before Ilala Ward Tribunal at Iringa in 2007 between the responde_nt and the said Mama Sambagi over the same piece of . • ~ - I. land in dispute. · - In my. considered. opinion that matter has nothing special to do with the present execution proceedings against the

appellant. In any case the said pending case is the correct ·venue for the . . . . . determination of the ownership of the s?Jd piece of land as .~ -~ . . . . · between the respondent and mama Sccl:Ilbagi. The present appeal· _and execution process is against the appellant personally. The fact is that the respondent, for one reason or another opted to sue the appellant and-Mama Sambagi separately. Therefore the third ground of appeal equally crumbles. The fourth ground of appeal 1s totally misplaced and misconceived. The issue of prescribed. time limit for filing appeal and its mode of computation wa~ adequately raised and discussed before this very court in a preliminary objection filed by ~~e respondent. That preliminary objection was resolved in 6 favour of the appellant in the ruling delivered on 29 / 11/2013. I am perplexed to see the learned advocates raising it again at this stage. With due respect to the learned advocates, I see no reason to waste time on that issue. It is a dead issue with no merit at all. In conclusion, the appellant has simply filed this appeal without any sufficient cause of complaint. All his grounds of appeal have no merits. The decision of the District Land and Housing Tribunal is here by upheld and the appeal is dismissed in its entirety with costs. Execution against the appellant should proceed as ordered. M. S. SHANGALI .

JUDGE 17/9/2014 Judgement delivered today in the presence of Mr. Kingwe learned advocate for the appellant and Mr. Kenyunko Edward learned advocate for the respondent. M. S. SHANGALI ·JUDGE 17/9/2014 7