Maganya Magori Mkubwa and Others vs Lucas Magori and Others (Land Appeal No. 26 of 2015) [2017] TZHC 3363 (22 August 2017)

. . l"- v IN THE HIGH COURT OF TANZANIA (IN THE DISTRICT REGISTRY) AT MWANZA LAND APPEAL No. 26 OF 2015 (Arising from the Tarime District Land and Housing Tribunal in Application No. 2of 2013)

1. MAGANYA MAGORI MKUBWA

2. WEREMA MWITA MARWA ....................... APPELLANTS

3. BUNYAGE NYANDA versus _ 1. LUCAS MAGORI

4. ISAMHYO MAGORI .......................... .. RESPONDENTS

5. MAGANYA MAGORI JUDGMENT 13 th July & 22 nd August, 2017 J. A. DE-MELLO, J; This Appeal has emanated from the District Land and Housing Tribunal at Musoma in Application No. 2 of 2013, which ended in favour of the Respondents. Aggrieved, the Appellant lo his present Appeal, on the following grounds as follows:- 1

6. That, the Trial Tribunal erred in law and, fact in admitting, entertaining and, finally pronounced judgment in favour of the Respondents who had no 'Locus Standi'

7. That, the lower Tribunal erred in law and, fact in admitting the application as a fresh suit while in fact it had been heard by the Village Council as such was 'Res Judicata'.

8. That, the Trial Tribunal erred in law and, fact in entertaining the case which was hopelessly 'Time Barred', the same having been lodged after 19 years from the date the 1 st Appellant was allocated~

9. That, the Trial Tribunal erred in law in faulting DWl's evidence, the 1 st Appellant as well as of the DW3 Ibrahim Wambura Mahende, the Village Executive Officer that, the suitland was alloc~ted to the former, way back in.1994 by the Village Authority which was proved by Exhibit D1 and since then the same had been under him until 2013 when this case arose;

10. That, the lower Tribunal erred in law for failure to consider the evidence of DW~cis Wambura Mwita and, that of 2

DW 9 Francis Wambura which proved that the 2 nd and 3 rd Appellants were the owners of the disputed land respectively 6. That, the lower tribunal erred in law in granting ownership of the land in dispute to the wives of the late Magori Maganya and his family while in fact they were not parties to this suit and which is unenforceable; 7. Tha , in general the judgment of the lower tribunal was ag)nst the weight of the evidence on record; He is praying for this Appeal be allowed, thereby quashing the decision of the lower Tribunal. For clarity's sake, the judgement from the District Tribunal ad the following holding; "Accordi 'g to evidence inside the case file, the suit land is about 126 acrek and is having graves of the Applicants· grandfather and I . grandmother and the suit land belongs to the family of the late Magori Maganya who is the father of the Applicants and tt,e first Respondent and this is proved by exhibit Pl and P2 the minute of the clan meeting which ordered the first Respondent to return the suit-land to make t~of the late Magori Maganya. 3

@·· Therefore, the lawful owners of the suit-land is the wives and ~ family of the late Magori Maganya and that being the position, I concur with both of my Assessors who have advice me to see the suit-land is the land of the family of the late Magori Maganya". In brief, the Appellant and, the Respondent are blood relatives, both claiming over ownership in the disputed suit-land allegedly, measuring 126 acres in Nyaminyabora village, Tarime District, Mara Region. It is the Appellant story that, the land was allocated to him by the Village Council · in 1993 until 2006, while the rest of the family claims it to belong to their late father Magori Maganya. Four of the late's wives are also alleged to still reside there. While the Appellant seem to have remained behind, the Respondents, all of them, admit to have left for greener pastures in Tarime urban, but, yet still they maintained the land to be aa clan land. Counsel James Njelwa represented the Appellants, while Counsel Bahati Tuguta fended the Respondents. Written submissions prayed and, granted is on record. · Looking on the grounds of Appeal, I am attracted to ground number one (1) on 'Locus Standi', ground ~nu~~ two (2) on 'Res Judicata' and number . ~~v .. 4

.I 'i' L. I LI 3 on Time Barred all of which are points of law with each holding special W place. On record true, there is a judgement from 'Baraza la Ardhi la .Kijiji, Mgogoro wa Ardhi Shauri Namba 2 / 2006' which the Council visited the 'Locus in Quo' on the 10/5/2006 and, identified all the boundaries from West to East, North and South. The complainants included Nyamahanga Magori, Wegesa Magori, Rhobi Magori the mother. What I could capture and, quite unclear as to the final and conclusive findings of the said 'Hukumu' in the last paragraph of the first page to the last page and, hand written is as what I capture hereunder; "Mlalamikaji watatu ambae ni mama Rhobi Magori, Baraza liliona hana haki ya kupata eneo lolote katika eneo la mgogoro maana baada ya operesheni vijiji, mume wake alimhamisha kutoka kitongoji cha Nyamatembe kwenda kitongoji cha Nyamemanga(Kyangera) na kupewa eneo kubwa la kulima mpaka sasa. Baada ya Baraza kutoa uamuzi huo (Hukumu) Mlalamikiwa ndugu Maganya Magori alikubaliana na hukumu ya Maamuzi yaliyotolewa na Barza hilo. Na w:•~~ 0 ikaji kwa pamoja walikubaliana na Maamuzi ya Baraza" 5

U Six (6) members of the said Village Land Council to include the Chair one • Mwita Wambura Matiko and,, Mathias Chacha the Secretary. One woman namely Salome Machango also appeared in the panel. In the absence of a 'wanting judgment' as already observed, it is a fact that the matter secured the attention of the Village Land Council as observed. How the matter rose and, entertained by the District Land & Housing Tribunal escaping the hierarchy under the law of Village Land Act No. 5 of 1999, and Land Court~s Disputes Act Cap. 216 is a misery and, which certainly escaped the eye of the Trial Chair, deliberate or otherwise in admitting and determining Land Application No. 2 of 2013. In his submission, the Counsel invoked the provision of sections 167 (1) of the Land Act, Cap. 113 (R.E 2002) which listed all organs to deal with the dispute related to the land including i. The Court of Appeal of Tanzania · ii. The High Court of Tanzania iii. The District Land and Housing Tribunal 1v. Ward Tribunal v. The Village Land Counci 6 u

® - Section 9 of Civil Procedure Code Act Cap. 33 R.E 2002 sternly states:- "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court". In the above and, notwithstanding the rest of the objections on locus and limitation, I am in one with Counsel for the Appellants that, the matter original in nature was illegally entertained by the Trial Chair. I will not even address the judgement of the Trial District Tribunal much as I find it in contravention of Order XX Rule 4 of Cap. 33, which reads;- "A judgment shall contai, a conscious statement of the case, the points for determination decision thereon, and for the reasons for such decision". 7

v It is similarly wanting let alone assuming jurisdiction as it did (!_; disregarding the fact that it ought to comply with the hierarchy in Cap.216 Admittedly, while we have the Hukumu of the Village Land Council which already observed is quite unclear, no proceedings is even in place for one to capture witnesses who testified to justify the visit in Locus in Qou which carried the entire judgement. While village land is governed by Village Land Act No. 5 of 1999, and the Land Disputes Court's Act 2002 Cap. 216. Section 60 of No. 5 stipulates; 60 (1) For purpose of this Part, every village shall establish a Village Land Council to mediate between and assist parties to arrive at a mutually acceptable solution on any matter concerning village land. (2) Where a Village Council establishes a Village Land Council, that council shall consists of seven persons of whom three shall be women ... " It is however the Land Disputes Court's Act 2002 (Act No. 2 of 2002) Cap. 216 that provi~blish:ent of Land Disputes Settlements

\J machinery and for matters incidental thereto. On Part III is where the Vilage Land Council is established with Functions and Powers. Similarly, section 5 (1) of the same provides for composition as above in Village Land Act No. 5 for seven members, three of whom shall be women. Section 7 of Cap. 216 provides for function as follows; (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 of jurisdiction. Reference of disputes to Ward Tribunals in the event of dissatisfaction is drawn on sectio11 9 of Cap. 216. It states; 9. Where the parties to the dispute before the Village Land Council are not satisfied with the decision of the Council, the disputes in question shall be referred to the Ward Tribunal in accordance with secti~ of the Village Land Act, 1999. ~ . 9

.J J v U : Having exposed the position of the laws above, I find the Appeal highly ... meritorious and, is allowed, basically on the only · aspect that of Res Judicata. Unless the legal hierarchy for land disputes from the Village land Council is sought and, lest I also fall victim of the District Land and Housing Tribunal fault, the entire proceedings and, judgement is quashed and set aside. Let whoever is dissatisfied with the Village land Council decision follow the appropriate forum, for Appeal. It being a family dispute, costs is waived. It is ordered so. J. A De-Mello Judge 22 nd August, 2017. 10