IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
IN THE DISTRICT REGISTRY OF SHINYANGA
AT SHINYANGA
CIVIL REFERENCE NO 4 OF 2023
(From the decision of the District Land and Housing Tribunal for Shinyanga at Shinyanga)
THE ATTORNEY GENERAL …………………………………...APPLICANTS
VERSUS
SESA MASUNGA MWANDU……………………….……1ST RESPONDENT
AMANI GOLD MINE GROUP……………………….…..2ND RESPONDENT
RULING
17th & 23rd August, 2023
MASSAM J.:
This reference no 4 of 2023 arise from Miscellaneous Application No. 9 of 2023 which was filed by 1st respondent one Sesa Masunga Mwandu against 2nd respondent one Amani Gold Mine Group in Shinyanga District Land And Housing Tribunal seeking for interim order restraining 2nd respondent, their authorized agents or any other person working under their institution, from taking possession, making any sort of transfer, entering there to, threatening or do any act that suggest possession of the property located at Mwakiltolyo village famously know as (Mwakitolyo No. 5) at Mwakitolyo ward, Shinyanga district in Shinyanga Region pending hearing of the miscellaneous application and the main application.
Applicant in this reference the Attorney General having been interested to be joined in the proceeding he filed a notice to be joined as co respondent in the said application ,he filed it under Section 17(1) (a) and (b)of the office of the Attorney General (Discharge of Duties) Act Cap 268 R.E 2019 .The trial tribunal ordered the said file to be brought to the high court in order the Attorney General to be joined as the high court has power to join Attorney General as co-defendant, so Attorney General was not satisfied hence this reference to this court.
In hearing of this reference, applicant was represented by Mr. Lwenge Senior State Attorney assisted by Ms. Amina Mkuya State Attorney while 1st respondent was represented by Mr. Mashauri advocate and 2nd respondent was absent even though there was a proof of service but he choose not to attend for reason best known to himself. Mr. Lwenge in support of his application he submitted that, after given the order from Shinyanga District Land and Housing Tribunal he realized that the trial chairman did not determine their application seeking to be joined as co -defendant but he remit the file to high without determine the issue before him.
He added that the trial chairman had jurisdiction to hear the said application because the Attorney General was applicant. So the act of the chairman of remitting the file to this court without determine the application before him was wrong. So he pray to this court to give the directives to the trial chairman to entertain this application before him before brought the same to the High court.
Mr. Mashauri in replying the same he concedes with the submission from the applicant that the trial tribunal was wrong to forward this file to high court before determine the application before him. In his rejoinder Mr. Lwenge had nothing to add than what he stated in his submission.
I have earnestly gone through both parties’ submissions, available records and taken into consideration the rival issues as well. The issue to determine is whether this application for reference has merit.
In perusing this record of this file, this court has no dispute that in Miscellaneous Application no 9 0f 2023 the Attorney General after been interested in the said application he filed a notice to be joined as the co defendant in the said application.
Also, there was no dispute that the said application which brought by the applicant was not heard to determine if the Attorney General is joined to the case or not. As per submission from the applicant Mr. Solomon Lwenge submitted that Chairman of District Land and Housing Tribunal has jurisdiction to entertain the application before him as Attorney General was an applicant.
This court is supporting submission from both parties that the trial chairman failed to discharge his duties required to do, it as he was required to determine the application before him where the Attorney General seek to be joined as co defendant after hear and join him it is when he was required to forward the file to this court in order for this court to proceed with necessary orders. So according to what I have stated above this court is remitting this file to the Shinyanga District And Housing Tribunal for the trial chairman to entertain the said application as it was required, and after doing the same he can bring the same for necessary orders.
All being said and done, the application is hereby granted after been found with merit .No order for the costs.
It is so ordered.
DATED and DELIVERED at SHINYANGA this 23rd day of August 2023.
R.B.Massam
JUDGE
23/8/2023
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