yohana hamisi vs jumanne ngwadi 2016 tzhc 2035 8 december 2016

IN THE HIGH COURT OF TANZANIA AT D O D O M A MISCELLANEOUS LAND CASE APPEAL NO. 42 OF 2012 (From the Decision of the District Land and Housing Tribunal of Singida District at Singida in Land C a se A ppeal No. 131 of 2010 and Original Ward Tribunal of Msisi Ward in Application No 03 of 2010) YOHANA HAMISi ................... APPELLANT . VERSUS JUMANNE NG’WADI , ...................RESPONDENT • RULING 17/11/2016 & 08/12/2016 SEHELJL v. . . This is a ruling on'ah issue raised by the Court at the hearing of the ap p eal. The issue raised and to which parties' w e re ‘invited to address the Court is rhe validity- of the proceedings of Msisi Ward Tribunal. The reason ’that .prompted this Court to invite parties to address it on the validity of Msisi Ward-Tribunal proceedings is that jij !1 was noted that the proceedings do not indicate the names of the- Tribunal members that sat and heard the dispute. !- . -^ a Both parties being, laypersons had nothing much to assist this Court. The appellant simply stated.that there were four members who sat and heard the Tribunal. If the names, are not indicated then it was done by the Ward Tribunal. The respondent said there w ere, more than four members including the Chairperson and -the Secretary. . It is trite law that in every sitting.of the Ward Tribunal, half oif its i members should be p re sen t to form the quorum. This is clebrly provided under Section 4 (3) of the Ward Tribunal A c t Cap. 2ojsr.-It * • » provides: j .. i “The quorum at a sitting of a Tribunal shall be one half of the total number of members." • I The members of the Ward Tribunal range from eight to four (see Section 11 of the Land Disputes Courts Act, Cap. 216). In the m a tte r. at hand, the members of Msisi Ward Tribunal were six as reflected on the date when the decision was delivered, that is, on 20/10/2(pi0. i Therefore, in e a c h sitting of Msisi' Ward Tribunal these six members w ere required to be present if at any point in time some o|f its I members could not have been present then at least half ojf its I members should have been present for a sitting to be validly constituted. It is on record that Msisi Ward Tribunal sat on various dates. It sat on 18/8/2010; 22/09/2010; 29/09/2010; 06/10/2010; and 20/10/2010. Unfortunately in all these sittings that Msisi Ward Tribunal sat and heard the dispute do not reflect the number of-members who were present. The failure to indicate names of the Tribunal ■ members in e a c h sitting goes to the root of the validly constituted Tribunal. Since the names are not indicated then it is not certain as.„ to whether the quorum was reached or not. The question whether the quorum is reached or not, had* to be determined first b'y any Tribunal before com m encem ent of any hearing. The issue of quorum is so fundam ental. It. is therefore risky and unsafe for this Court to assume that the quorum was reached while-the *records do not- . r , . ' ■- . . •; - j- . indicate so. ! | In view of such irregularities, I do hereby invoke my revlsional. ! power under Section 43 (1) (b) of the Land Disputes Courts Acty Cap. i 21 6 by quashing the whole proceedings of;Msisi Ward Tribunal and ! set aside its decision. Since the decision of the District Land a n d , Housing Tribunal is found from Ihe nullity decision, then I p roceed to quash its proceedings and 'set aside,its decision. I further m ake an,, i order for the matter to-start afresh in com pliance with th e jla w . I: m ake no. order to .costs because the mischief was occasionjed by The Ward Tribunal Itjs so;ordered. • ’ : • DATED at C>pdoma this 08th day of Decem ber, 201 6. JUDGE 3 Ruling delivered at Dodoma under my hand and seal of the Court, this 08th d ay of Decem ber, 2016 in the presence of both parties. Right of ap p ea l is fully explained to the parties. B.AA.A Sehel JUDGE 08th December, 2016. 4