alphonce kakweche and another vs bodi ya wadhamini bakwata tanzania 2021 tzhclandd 625 30 september 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 97 OF 2019 ALPHONCE KAKWECHE 1st APPELLANT MGAINAMBA KIHAKWI 2nd APPELLANT VERSUS 30DI YA WADHAMINI BAKWAT A TANZANIA RESPONDENT (Arising from the Decision of Kilombero/Ulanga District Land and Housing Tribunal in Land Application No. 61 of 2012) JUDGEMENT ON APPEAL A. MSAFIRI, J. The instant Appeal arise from the decision of District Land and Housing Tribunal of Kilombero/Ulanga in entertaining Land Application No. 61 of 2012 dated 8th February 2017 where the respondent was declared a lawful owner of the disputed property. The appellants being aggrieved by the said decision they filed six (6) grounds of appeal, that; 1. The trial tribunal erred in law and in fact for trying a matter which it lacks pecuniary jurisdiction to try the same. 2. The trial tribunal erred in law and fact for delivering Judgment in favour of the respondent without taking into consideration the opinion of wise assessors to the standard required by law. 1 | Paee 3. That the trial tribunal erred in law and in fact for delivering judgment in favour of the respondent herein without concrete evidence thereto. 4. The trial tribunal erred in law and in fact for disregarding the appellant's testimony establishing his title over the disputed premises. 5. The trial tribunal erred in law and in fact for holding that the land in dispute was long abandoned by the appellants. 6. The trial tribunal erred in law and in fact for holding that the respondent followed all the legal procedures required before acquiring the land in dispute. Wherefore the appellant prayed before this Court for the following orders; 7. That the decision of DLHT for KHombero/ Ulanga dated 0&h February 2017 be quashed and set aside. ii. To grant the Appellants the costs of this appeal and the proceedings in the Court below. Hi. Any other reliefs that this Honourable Court may deem fit andjust to grant. The brief history of this matter according to the records is tnat, the respondent sued the appellants for vacant possession over the disputed property, claiming to be the awful owner after acquiring the suit land having been allocated by Chita Village Council in the year 2007 about 2 I I’ a g c I forty(40) acres, for the value of Six Hundred Thousand Shillings. (Tshs. 600,000/=). The purpose was to build a secondary school. On the other hand, the 1st appellant claimed that the suit land belongs to his deceased father one Garatanila Kakweche who has occupied it since the year 1960. In the end the trial Tribunal found the evidence of the respondent heavier than the appellant and declared the respondent a lawful owner of the disputed land. When the Appeal came for hearing, the manner of disposing this Appeal was scheduled to be by way of written submissions. On the scheduled date the appellant was represented by Advocate Sabas Shayo who drew and filed submission in support of this Appeal while the respondents' submission was drawn by Advocate Stumai Moshi Omary. On the first ground of Appeal, Mr. Sabas Shayo raised a concern that the trial Tribunal has entertained the matter which is outside its pecuniary jurisdiction. In his submission, Mr. Shayo stated that since the record of the Tribunal is very clear that the value of the subject matter is Six Hundred Thousand Shillings (Tshs. 600,000/=) delivered from the purchasing value then the trial Tribunal entertained the matter bellow its pecuniary jurisdiction. So, when the matter was instituted in the year 2012, the Tribunal had no mandate to entertain it. He insisted that, under Section 33 (2)(b) of the Land Disputes Courts Act Cap. 216 R.E 2002(herein the Act), the District Land and Housing Tribunal was limited to disputes of the value of which does not exceed Tshs. 50 Million for immovable property. In his opinion it is the Ward Tribunal which is vested with jurisdiction to disputes whose 3| Pa ge value does not exceed three millions as provided for under Section 15 of the Act. He cited the case of Tanzania - China Friendship Textile Co. Ltd vs. Our Lady of the Usambara Sisters TLR (2006), pg70. In reply to the issue of jurisdiction, Ms. Stumai submitted that, Regulation 3(2) of the Land Disputes Court Act (The Dispute Land and Housing Tribunal) Regulations, GN. 174 of 2003 simply establish the pecuniary jurisdiction of District Land and Housing Tribunal by estimation. The respondent has abided with the said Regulations by filing application which at paragraph 4, shows that the value of the suit land exceeds Tshs. 3,500,000/= therefore the District Tribunal had mandate to try the matter and not the Ward Tribunal. it is a trite law that, once there is an issue of jurisdiction being pointed out, the Court is compelled to deal with the said issue first and it is for this reason, I choose to determine the issue on the first ground of appeal before going further to other grounds of appeal. As indicated above, it is trite law that Courts, before hearing and determination of any suit, have to establish whether they have jurisdiction to do so. In the case of Fanuel Mantiri Ngu'nda vs. Herman Mantiri Ngu'nda & 20 Others [CAT] Civil Appeal No. 8 of 19995, the Court stated: " The question of jurisdiction is so fundamental that courts must as a matter ofpractice on the face of it, be certain and assured of their jurisdictional position at the commencement of trial. It is risky and unsafe for the court to proceed on the assumption that the court has jurisdiction to adjudicate upon cases". 4| Page At this juncture, it is pertinent to reproduce Section 33 of the Land Disputes Courts Act, Cap 216 R.E 2002, which provides the jurisdiction of the District Land and Housing Tribunal thus: (1) The District Land and Housing Tribunal shall have and exercise original jurisdiction- (a) In all proceedings under the Land Act, the Village Land Act, the Customary Leasehold (Enfranchisement) Act, The Rent Restriction Act and the Regulations of the Land Tenure (Established Villages) Act, and (b) In all such other pi oceedings relating to land under any written law in respect of which jurisdiction is conferred on a District Land and Housing Tribunal by any such law. (2) The jurisdiction conferred under subsection (1) shall be limited- (a) In proceedings for the recovery of possession of immovable property, to proceedings in which the value of the property does not exceed fifty million shillings and (b) In other proceedings where the subject matter is capable of being estimated at a money value, to proceedings in which the value of the subject matter does not exceed forty million shillings [boided for emphasis] 5 | Pa ge Cap. 216 (supra) also speaks of the jurisdiction of the Ward Tribunal, particularly section 15 as follows; "Notwithstanding the provisions of section 10 of the Ward Tribunals Act, 1985, the jurisdiction of the Tribunal shall in all proceedings of a civil nature relating to land be limited to the disputed land or property valued at three millions shillings" The dispute before District Tribunal relates to 40 acres and its purchasing value proved to be sold to the respondent by Chita Village Council for the price of Tshs. 600,000/= . The appellants claimed this value does not fall under section 33 of the Act and therefore the District Tribunal lacks jurisdiction because it is below its jurisdiction. Ms Stumai advocate for the respondent has directed this Court to the paragraph 4 of the Application where the respondent estimated value of the suit property to be Tshs. 3,500,000/= and therefore that being the estimated value of the subject matter it within the pecuniary jurisdiction of the District Tribunal. With respect, I disagree with the respondent's advocate Ms. Stumai on the sense that, the value under paragraph 4 of the plaint is simply an estimated value to the subject matter and the same needs to be proved with evidence on proceedings. Regulation 3(2) of the Land Disputes Court Act (The Dispute Land and Housing Tribunal) Regulations, GN. 174 of 2003 as cited by the respondent simply provides for the formality on how the application form and contents must be and not to be used as a proof of pecuniary jurisdiction. In my opinion, since this estimated value exceeds the purchasing price, the respondent was required to prove that 6| Page the property value is Tshs. 3,500,000/= by providing the trial Tribunal with Valuation Report. I have perused the entire record and there is no evidence which suggests that the value of the suit land exceeds Tshs. 3 million (Fhree Million Shillings) and this includes the Valuation Report which was not tendered before the trial Tribunal for justification. It goes without saying , since the purchasing price of the suit property according to the Sale Agreement between Chita Village Council and the respondent for the forty acres was Tsh. 600,000/= per Annexure's "A", as pleaded by respondent in paragraph 6 of the Application form, this amount to factual value, that; "I. That the Applicant is the rightful owner of all that piece of land known as farm in Chita Village KHombero District measuring approximately 40 acres which he acquired by buying from Chita Village Council in 2007 for the value Tshs. 600,600/- Tanzania shillings...." The sale agreement amount to tactual value as opposed to estimated value in the pleadings. The application forms before the District Tribunal requires the applicant to fill in the estimated value however the estimated value does not justify pecuniary jurisdiction since sections 15 and 33 of the Land Disputes Act recognizes actual value and the respondent was required to satisfy the District Tribunal with actual value not estimated value. In my humble opinion, the selling price justify the value of the suit property, since there is no Valuation Report that prove the upgrade. The value of the suit property in the sale agreement form the basis of the value of the subject matter hence the District Land and Housing Tribunal 7 | Page was improper to determine the matter under Section 33 of Land Disputes Courts Act. The District Tribunal had no mandate to entertain the matter since it was below its pecuniary jurisdiction, as the subject matter value did not exceed three million Tanzanian shillings. See the case of Victoria Rea! Estate Development vs. Tanzania Investment Bank and 3 Others, Civil Application No. 255 of 2014 CAT (Unreported) and Tropical Air (TZ) Limited vs. Godson EHona Moshi, Civil Application No. 09 of 2017CAT{Unreported), where it was held that, the estimated value does not amount to factual value of the subject matter and in case the estimated value of the suit property exceeded the value in the contract of sale of the immovable property the estimated value must be proved by Valuation Report so that to get the actual value of the suit land in order to justify the jurisdiction. The absence of the Valuation Report makes the value in the contract of sale to stand out. In the absence of a Valuation Report, the trial Tribunal could not ascertain if the suit property was within its pecuniary jurisdiction. Also reference is made to the persuasive authority in Chacha Muhogo vs. Wegesa Joseph M. Nyamaisa, Land Appeal No. 52 of 2013, HC at Mwanza. where this Court as per Madame Judge Bukuku, as she then was, took the view that; '7/7 absence of a valuation report, there cannot be factual basis to determine the pecuniary jurisdiction of the ward tribunal". In the current case, the sale agreement mentioned the value of the suit property to be Tshs. 600,000/=, with this value amount, the proper or the competent tribunal is the Ward Tribunal under Section 15 of the Land 8 | Pagc Disputes Courts Act Cap. 216 R.E 2002 before coming into operation of Revised Edition 2019. I need not go further on the other grounds of appeal since the issue of jurisdiction can determine the outcome of this appeal. Basing on the above analysis, this Appeal is allowed. The decision of the District Land and Housing Tribunal for Kilombero/ Ulanga in Application No. 61 of 2012 is hereby quashed and set aside for want of jurisdiction. It is so ordered. Dated at Dar es Salaam this 30th Day of September 2021. 9 | Page