20120615 TZHC Mwanza4

_· ., . :... ' ·:,,:.. '...:_ :: . ·. . ,_,-,lfl'~::··,._ IN THE HIGH COURT OF TANZANIA (LAND DIVISION) ATMWANZA. MISC. LAND CASE APPEAL NO. 1 OF 2007. (From the Decision of the District Land and Housing Tribunal of Mwanza District at Mwanza In Land Case Appeal No. 15 of 2,006 and Original Ward Tribunal of Nyamatongo Ward in Application No. 8 of 2005)~ WILLIAM ELIKANA..... :...................................................... APPELLANT VERSUS ITEMBWE MNANA......................................................... RESPONDENT JUDGMENT. A.A.Nchimbi, J. This appeal is on matters originating from the Ward Tribunal of Nyamatonga ward and the village Land council of Nyamatonga village respectively, in which the subject matter relates to a piece of Land . It is alleged that in the said ward Tribunal parties herein entered into a consent judgment but the appellant failed to honour what they had agreed upon and decided to institute fresh suit in the village Land Council of Nyamatonga . The Respondent raised objection and filed Misc. Application No. 15/2006 in the District Land and Housing Tribunal so as to see to the legality and correctness of the action taken by the village land council and give necessary orders. The ruling of the District Land and Housing Tribunal was in favour of the respondent. Aggrieved by the decision the appellant has now appealed to this court on the following grounds. 1 ~. . . . ... · [1]. That the learned chairperson of the Tribunal erred in law in convincing herself and accepting the consent agreement to ' . . . have been · entered into between the appellant and the respondent in the village land council duly constituted without that coundl decision to such effect [2]. That the learned chairperson of the Tribunal erred in law in quoting section 3(1) of Act No. 2/2002 and closing the village land council case/ without showing justifiable cause of not determining the appeal before her on merits. Parties were ordered to argue the appeal by way of written submissions. I have carefully gone through the entire record of this appeal and have also considered the surrounding circumstances of the matter. I have noted, with significant concern, that the instant matter is tainted with fatal procedural irregularities. The record shows that the respondent filed miscellaneous No. 15 of 2006 seeking, under S. 36(1) of the Land Disputes Courts Act, Cap. 216 R.E. 2002, for revision of the decision of the Nyamatongo Village Land Council. In his affidavit accompanying the chamber summons the respondent . stated as follows:- 2 , ,~.-, .. . , [1]. That, i was an Applicant in Civil Case No. 8/2005 before Nyamatongo Ward Tribunal and William Elikana was the Respondent [2]. . That, the said case was finally· decided on 17/11/2005 . before Nyamatongo Ward Tribunal and the decisison was· in my favour. A copy of the said decision is attached herewith to form part of this affidavit [3]. That, to my surprise the Respondent had filed a new civil suit on the same matter, same parties and subject matter at Nyamatonga Village Council [ 4]. That, on jh March, 2f!06 I wrote a complaint letter to your honourbale tribunal seeking for legal advise on the same issue/matter, Via your letter dated 2dh March, 2006 with Ref. No. DLHI/Vol. 11/28 your honourable tribunal advised me to make application for revision. On the basis of the above facts, the District Land and Housing Tribunal for Mwanza revised the decision of the Village Land Council. It may not be irrelevant to say, at this juncture, that the Ward Tribunal of Nyamatongo did, indeed, register a consent Judgment at the instance of the parties themselves. The material part of that agreement is in the following terms:-. 3 ·- . .. ; ·- ·- ... ~ ._ -~,~- . ·. . . ....... Kuwa Mlalamikiwa William Elikana amekubali kwa dhati kuwa Sliamba ambalo alikuwa analalamikiwa na Ndugu Itembwe amemwachic1 mwenye Shamba Ndugu · Itembwe ..............ni mali yake. Kwa hiyo Shamba hilo ni mali . . ya Itembwe . Mnana kuanzia leo na kuendelea. From the record, it is not clear as to whether the consent judgment was ever executed. However, the correct assumption is that the appellant acted in an underhand way. Hence the filing of the complaint in the village land council. It is clear, as per law, that the village land council is one of the courts having jurisdiction to determine land disputes in a given area. Under S. 7 of the Land Disputes Courts Act, Cap. 214 R.E. 2002. The functions of the village Land council include:..: [a]. to receive complaints from parties in respect of land; [b]. to convene meetings for hearing of disputes from parties; and [c]. to mediate between and assist parties to arrive at a mutually acceptable settlement of the disputes on any matter concerning land within its area ofJurisdiction. The procedure laid down by law, in case of parties who feel aggrieved by the decision of the village Land council, is to complain 4 -... . ._ .. -. , . :.,;. .·~- by way of reference to the Ward T:ribunal. S. 9 of the Act (Supra) !".ifli specifically stipulates that:- · ·9. · Where the parties to the dispute before the village land council are not satisfied with the decision of the council, the. dispute in question shall be referred to the ward Tribunal. It goes without saying that the respondent did not follow this procedure. Instead he opted to initiate revision proceedings in the District Land and Housing Tribunal. I think, with respect, that was procedurally wrong. What is more section 36(1) of the Act, as cited by the respondent in his Chamber summons, deals with revision on matters or~ginating from the ward Tribunal. The section is couched in the following terms:- 36(1) A District Land and Housing Tribunal may call for and examine the record of any proceedings of the Ward Tribunal for the purpose of. satisfying itself as to whether in such proceedings the Tribunal's decision has_ [a]. not contravened any Act of Parliament, or subsidiary legislation; 5 [b]. not conflicted with the rules of natural justice; and • · whether .the Tribunal has been properly constituted or has exceeded its Jurisdiction. and may revise any such proceedings (emphasis mine). What was subjected to for revision by the District Land an~ Housing Tribunal was the decision of the village Land Council. The decision of the Ward Tribu~al of registering consent judgment was not in issue at all. So in my considered view, it was improper for the District Land and Housing Tribunal to entertain the respondent's application for that application was not in consonance with the law. The respondent should have first referred the matter to the Ward Tribunal. · In view of the above, I would therefo.re, conclude that the· proceedings and subsequent decision of the Mwanza District Land and Housing Tribunal are vitiated with material irregularities. In the upshot, I proceed to quash the proceedings of that Tribunal and set aside· the ruling and its orders thereat. The respondent may wish to refer his complaint to the competent Ward Tribunal. 6 I , ,· . ,.. ·~ ·:"" :·· : •. ....;: ,. .:···,. Appeal allowed to the extent shown above. Cost to follow event. · JUDGE 7 15/;6/:2012. Coram Hon. A.A.Nchimbi, J. For . . Appellant . . Present. Respondent Present. Cc: Regina. · Order. Judgment delivered. A.A.Nchimbi, JUDGE 15/6/2012. Right of appeal explained. A.A.Nchimbi, JUDGE 15/6/2012. 8