Kispi Mwamlangala vs Simon Mwakilembe ((PC) Civil Appeal No. 87 of 1996) [1999] TZHC 439 (7 May 1999)

IN ,'I'flli HIGli'. COURT OF 'I'ANZANIA AT MBEYA . (PC) CIVIL AI-F&U, NO •. 87 OF 1996 (From the decision of the District Court of Tluhgwe at 'fukuyu in Civil Appeal Noo 5 of 1996 Before~ F.N. Natogolo - District Viagistrate) KIPSI MWAMLANGALA APPBLLANT Versus SIMON MWAKILEMBE JUDGMENT ·'."···• ;!'.,-;-,}'•"••.'·~~1 ·,. -·.::·- .• ; ' ;r This matter was tainted with a fatal procedural irregularityo The dispute between the parties centred on the co1m11on · boundary of their adjacent pieces of lando Each party was claiming that the other had encroached on his land. The appellant filed the complaint against the respondent at the Ward Tribunal of Kambasegela. The 'l'ribunal heard the matter and decided in favour of the respondent. 'rhe appellant, who lost, did not prefer an appeal to the· primary court in terms of section 20 of the Ward Tribunals Act 19850 Rather, he preferred a fresh suit based upon the same complaint before the primary: conrt of Masako The primary court decided for the appellant, and the respondent, feling aggrieved, preferred an appeal to the district court of Rungwe. The district court allowed the appeal, and the appellant, in protest, preferred this appeal. I am, with respect, satisfied that the appellant was not in law entitled to file the fresh suit based on the same subject matter before the primary courto The Tribunal had already adjudicated on the mattero Section 20(1) of the Ward Tribunals Act provides a recourse to a primary court by way of an appeal by a person aggrieved by a decision of a Ward Tribunal. The appellant., therefore, ought to have appealed to the primary court in the event that the decision of the Tribunal aggrieved him.· The district court acknowledged.the fact that the Tribunal had decided on the matter, but failed-to pronounce oh the legal implicat1en of that decision and th& decision of the appell8;nt tc- file the suit .· 000000-.•a• /2

2 instead of appealing. The legal position as at now is that the _decision of the Tribunal still validly stand.so That decision has never been changed or altered by a primary court on appeal or in revision or in review as provided for under the Acto The proceedings in both courts below were thus a misconception. I accordingly dismiss the appeal, quash and set aside the proceedings, and hereby declare the validity of the Ward 'I'ribunal vs decision. The respondent is to have his costs here and in both courts below • . (.• .1·1, ./ ~ .... .: ~~ f.. ;:; A'l 1 MBEYA. 7th May 1999• For Appellant: Absent. For Respondent: Absent. .f JUI.XJE •