wilson lusiji vs yunith lungwa 2017 tzhc 2291 16 august 2017

IN THE HIGH COURT OF TANZANIA

AT DODOMA (APPELLATE JURISDICTION) MISC. LAND CASE APPEAL NO. 10 OF 2017 (Arising from Land Appeal No. 47 of 2016 of the District Land and Housing Tribunal of Dodoma Court, Originating from Land Case No. 84 of 2015 of Iringa Mvumi Ward Tribunal) WILSON LUSIJI........................................................ APPELLANT

VERSUS YUNITH LUNGWA.................................................. RESPONDENT

JUDGMENT 20thJune & 16th August, 2017 KWARIKO, J. Before the Ward Tribunal of Iringa Mvumi the appellant herein succeesfuly sued one Dinna Fumbi the respondent's mother over farm land. Before that tribunal the said Dinna Fumbi was represented by the respondent herein. On being dissatisfied by that decision the respondent herein succeeded in her appeal before the District Land and Housing Tribunal of Dodoma. The appellant was aggrieved by that decision hence he filed this appeal through Njulumi and Company Advocates upon the following five grounds of appeal: 1. That, the District Land and Housing Tribunal erred in law and in facts by deciding the matter in favour o f the Respondent's mother who was not part of the suit and the Respondent ever sued on power of attorney.

2. That, the District Land and Housing Tribunal erred in law and in facts by deciding the matter in favour of the Respondent herein, without considering the testimony of Abijeli Fumbi (Respondent's mother) who was cross-examined and clearly testified at Iringa Mvumi Ward Tribunal that the appellant is the legitimate owner of the land in dispute as He was granted the same by her later husband, one Mr. Ndahani.

3. That, the District Land and Housing Tribunal erred in law and in facts by deciding the matter in favour o f the Respondent herein, without considering the decision of the trial ward tribunal who in-fact heard the testimony of all witnesses including neighbours to the said land, visited the land in quo, and verified that the said land belongs to the Appellant.

4. That, the District Land and Housing Tribunal erred in law and in facts in varying the findings o f the trial Ward tribunal deciding the matter in favour of the Respondent herein while the Ward tribunal vividly found that the land in dispute is the Appellant's as he has been cultivating thereupon since 1970's.

5. That, the District Land and Housing Tribunal erred in law and in facts by deciding the matter in favour o f the Respondent herein; while the evidence adduced at the trial ward tribunal is dear that Land in dispute belongs to the Appellant who cleared a bush and fenced the same and has been using it since 1978 before the respondent's unjustified interference. This appeal was duly heard where the appellant was represented by Mr. Mcharo learned advocate whereas the respondent appeared in person. Also, this court asked the parties in the course of hearing of the appeal to address one legal issue whether list of members at the ward tribunal was shown during the trial. In respect of this issue Mr. Mcharo was of the view that the ward tribunal did not show the list of members who heard the case and this matter was raised by the assessors at the district tribunal but the chairman ordered the record of the ward tribunal to be rectified which was not proper since the said rectification was not shown. He was thus of the view that the chairman ought to order retrial of the case. The learned advocate also complained as to how the respondent came to represent her mother in this case as there was no any authority to that effect at the trial tribunal and the parties changed at the district tribunal as the record shows that the respondent filed the appeal whereas Dinna Fumbi was the party

to the case. On her part the respondent argued that after the said error was discovered the ward tribunal was ordered to rectify and complied where the parties had no complaint since they knew who heard the case. At this point this court is required to decide the legal issues first. As to the representation of the said Dinna Fumbi by the respondent herein at the trial and subsequent proceedings this court agrees with the learned counsel that there has not been any record to show that there was any authority to that effect. The said Dinna Fumbi never appeared before the ward tribunal to give authority to the respondent to represent her or that there was any written document to signify such authority. Much as the law under section 18 of the Land Disputes Courts Act [CAP 216 R.E. 2002] allows representation of a party in the case by a relative or family member but there should be specific prayer and permission by the tribunal. In this case there is only a statement by the tribunal that the respondent herein was representing Dinna Fumbi who was the respondent at the trial. Therefore, the trial tribunal erred to allow the respondent to represent the said Dinna Fumbi contrary to law. And thus the proceedings were a nullity ab initio. Now, this court by its revisional powers envisaged under section 43 (1) (b) of the Land Disputes Courts Act (supra) hereby quashes the ward tribunal's

proceedings and resultant appeal proceedings before the district tribunal which originated in the null proceedings. However, for the interest of justice this case is ordered to be heard afresh between the appellant herein and Dinna Fumbi unless the law is complied with where someone else can stand for her. And the names of initial parties ought to be maintained no matter of the representation, if any. The list of members of the ward tribunal should be shown each time the case is called before that tribunal until finalization. Finally, this appeal cannot be decided on merit as it lacks base to stand having been nullified the two tribunals' proceedings. I order no costs as the ward tribunal contributed to the omission. Order accordingly. v\ V \ / 15/8/2017 DATED at DODOMA this 15th day of August, 2017

ARIKO 3UDGE 15/8/2017 Pate : 15/8/2017 Coram : Hon. M.A. Kwariko, J. Appellant: Present Respondent - Present C/c: Judith Appellant: I am ready for judgment as my advocate is before another judge. Respondent: I am ready. Court: Judgment delivered in court today in the presence of both parties in person and Ms. Judith Court Clerk. M.A

JUDGE 15/8/2017 Court: Right of Appeal Explained. M.A.

JUDGE 15/8/2017