final ASSERI ELIYA KISIMA1 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB - REGISTRY AT MOSHI LAND APPEAL NO. 871 OF 2024 (Appeal from the order of the District Land and Housing Tribunal of Moshi at Moshi dated 20th July, 2022 in Land Appeal No. 26 of 2021 and originated from ‘Madai ya Ardhi’ Na. 3/2021 Kahe Ward Tribunal) ASSERI ELIYA KISIMA…………….…………………………APPELLANT VERSUS LOVENESS NJILARE KISIMA………………………………RESPONDENT JUDGMENT 5th & 28th August 2024 A.P. KILIMI, J. In February 2021, the appellant, Asseri Eliya Kisima filed a complaint No. 3 of 2021 before Kahe Mashariki Ward Tribunal against the respondent Loveness Njilare Kisima alleging trespass on a suit property. He won the case, subsequently the respondent being aggrieved appealed to the District Land and Housing Tribunal in Land Appeal No. 26 of 2021. On 20/7/2022 when the appeal was set for hearing Mr. Gabriel Shayo learned advocate who represented Ms. Loveness informed the tribunal that the Ward Tribunal was not properly composed as per the requirement of the law under section 11 which requires a minimum number of women to be three. He thus contended therefore that all the proceedings of the ward tribunal 1 were a nullity hence he prayed for the tribunal to nullify the same. The Respondent therein who is now the Appellant hereinabove was asked to respond and he replied that it was true. From there the Chairman made an order nullifying the proceedings of the Ward Tribunal and the order reads; “The proceedings of the ward tribunal has been nullified and its decision has been quashed and set aside as the tribunal decided the matter on merit while had no that jurisdiction since its jurisdiction is limited to mediating the same”. Following that order, the appellant was dissatisfied thus moved this court by way of appeal basing on three grounds as follows: 1. That the honourable Tribunal erred in law in nullifying the decision of the Kahe Mashariki Ward Tribunal on ground that the tribunal had no jurisdiction to hear and determine the dispute. 2. That the honourable Tribunal erred in law and fact by applying the amendment of the law retrospectively. 3. That the judgment of the honourable Chairman of the Tribunal lacks clear legal reasoning. 2 When the matter was called on for hearing, the appellant appeared in person, unrepresented, whereas the respondent enlisted the services of Mr. Gabriel Shayo learned advocate. By way of written submissions, it was the appellant who started to kick the ball when he consolidated the first and the second grounds and decided to argue them together. Then the appellant faulted the decision of the District Land and Housing tribunal (“DLHT”) because it erred in law to nullify the decision of Kahe Mashariki Ward Tribunal on ground that the tribunal had no jurisdiction to hear and determine the dispute. It was the appellant’s view that that the Amendment of Section 13 of The Land Disputes Courts Act Cap 216 by Section 45 of the Written Laws Miscellaneous Amendments Act No. 5 of 2021 which ceased the power of the Ward Tribunal to hear and determine Land Disputes came into effect on 11th October 2021, whereas the Decision by the Kahe Mashariki Ward Tribunal was delivered on 10th June 2021. He argued therefore that the Judgment by the ward tribunal was delivered before the said amendment. Hence, he maintained that the Ward Tribunal had Jurisdiction to hear and determine the matter. He further argued that the said law amended act ought not to act retrospectively as the dispute had been determined by the 3 Ward Tribunal conclusively four months before it come into force. Hence, he concluded that the decision of Ward Tribunal was properly made with jurisdiction. Briefly submitting on the third ground of appeal the appellant stated that the judgment of the District Tribunal lacked clear legal reasoning. He submitted that it is not very clear as to why the honourable chairman applied the amendment of Section 13 of Cap 216 in the said appeal while the case at the ward tribunal was determined before the Amendment. The appellant added that the decision of DLHT was too short and without clear legal reasoning to how it reached the said decision. On the strength of his submission the appellant averred the said decision of DLHT on Land appeal No. 26 of 2021 is unmaintainable for being tainted with serious illegality and thus prayed this Court to quash and set aside the same with costs. Rolling back the ball, Mr. Shayo, learned advocate for the respondent started his submission by raising objections; first he contended that the appellant misdirected himself by writing a Memorandum of Appeal instead of petition of appeal as required by the law under section 38(2) of the Land Disputes Courts Act. Second, he stated the appeal does not bare the court rubber stamp for admission in the registry by the registry officer. Third, he 4 said the appeal is undated, it also does not show the date it was drafted by the appellant and likewise the petition does not bear signature of the drawer who filed it in the Court. To buttress his stance, he referred Order VI Rule 14 of the Civil Procedure Code (Cap 33 R. E. 2022) and prayed this appeal be dismissed with cost. Responding with respect to the merit of this appeal, Mr. Shayo submitted that what was delivered by the District Land and Housing Tribunal was an Order requiring parties to re-file the case and not a judgment. He further submitted that when an amendment of the law affects a procedural matter it acts retrospectively, unless good reason to the contrary is shown. He supported his argument with the case of Municipality of Mombasa vs Nyali Ltd (1963) EA 371. Relying on this authority Mr. Shayo submitted that in this aspect the Order of the Chairman in the District Land and Housing Tribunal setting aside proceedings and decision of Kahe Mashariki Ward Tribunal, and ordered the matter to be instituted afresh by any party in the Land Tribunal was proper. Replying on the 3rd ground of appeal, Mr. Shayo submitted that this ground of appeal lacks merit because the decision of the District Land and 5 Housing Tribunal was not a judgment rather an order setting aside the proceedings and decision of Ward Tribunal. He finally said since this appeal to the High Court by the appellant is not legally drawn and filed by the appellant as per defects already pointed out in a preliminary point of law. Therefore, the grounds of appeal raised by the appellant devoid of merit because appellant failed to comply with the Order of the District Land and Housing Tribunal in Appeal No. 26 of 2021, thus he prayed the appeal be dismissed with costs. From the rival submissions above, I'm going to determine first issues submitted by Mr. Shayo as objections to this appeal not to be heard. Mr. Shayo has faulted that this appeal has been initiated by Memorandum of Appeal instead of petition of appeal as required by the law under section 38(2) of the Land Disputes Courts Act. I agree with Mr. Shayo the provision cited mandatory provides the appeal is by way of petition, but I have considered whether there is any mischief of using memorandum of appeal instead of Petition of appeal in the circumstances of this matter. According to Black’s Law Dictionary 8th Edn. Petition means a formal written request presented to a court or other official body. Whereas a memorandum of Appeal is defined as a primary document for initiating 6 appeal from the lower court to the higher court. It contains grounds/ reasons for being aggrieved by the decisions of the lower court and prayers to the Higher Court. (See https://sherianajamii.com/memorandum-of- appeal ) In my view the import of the above, both are procedures of informing the court and the respondent on the grounds to be determined at the appellate level. In this matter the appellant has used the said word memorandum to raise his ground of appeal. Thus, even of the title is changed to be petition the same grounds will be maintained. In this regard with the introduction of the provisions of section 3A and 3B of the Civil Procedure Code [ Cap.33 R.E. 2019] which entails court should interpreted any provision for the purpose of facilitating the just, expeditious, proportionate and affordable resolution of civil disputes, hence substantive justice. From the above reasons, I am of the view that, invoking the principle of overriding objective in the matter at hand will not occasion injustice to any party, and failure to invoke it will amount to overreliance on procedural technicalities which is also prohibited under Article 7 107A (2) (e) of the United Republic of Tanzania Constitution 1977 as amended. Thus, this objection is dismissed for want of merit. Mr. Shayo also claimed that the appeal does not bare the court rubber stamp for admission in the registry by the registry officer. In this respect, I wish to inform the counsel courts in Tanzania are in transition to be paperless court, where all applications and submission are submitted online through Electronic Case Management System (ECMS), therefore issues of rubber stamp and signature might be replaced by acknowledgment available on the said system. However, the document available in this court file shows that Registry Officer received the said document initiating this appeal on 18th January, 2024 and he signed, I think this is enough acknowledgement of receiving the said physical document hence serve the purpose as a rubber stamp. Nonetheless, the spirit of the act governing land disputes is inferred in the provision of section 45 of the Land Dispute Act Cap. Cap. 216, R.E. 2019 entails that errors or omission if does not occasioned failure of justice ought to be disregarded. The same provides; “No decision or order of a Ward Tribunal or District Land and Housing Tribunal shall be 8 reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings before or during the hearing or in such decision or order or on account of the improper admission or rejection of any evidence unless such error, om ission or irregularity or im proper adm ission or rejection of evidence has in fact occasioned a failure of justice” [ Emphasis added] Also Mr. Shayo claimed that the appeal is undated, it also does not show the date it was drafted by the appellant and likewise the petition does not bear signature of the drawer who filed it in the Court. I have scanned the document filed in this court, despite the fact that appellant is a lay person, the same is dated and signed by the appellant himself, this is the record available in this court therefore should be the one taken to be accurate. (See Paulo Osinya v. R [1959] EA 353 and Shabir F. A. Jessa v. Rajkumar Deogra, Civil Reference No. 12 of 1994 (unreported). In conclusion thereof all objections raised are devoid of merit and are hereby dismissed forthwith. 9 Back home to the ground of appeal, and before I proceed further, it is imperative to observe whether the said order is appealable, I agree with Mr. Shayo that DLHT issued an order setting aside the proceedings and decision of Ward Tribunal and not the judgment, but my import on that order had reason for doing so. The last part of the said order states; “the tribunal decided the matter on merit while had no that jurisdiction since its jurisdiction is limited to mediating the same”. The above was the reason for DLHT to nullify the decision of the Ward Tribunal, therefore I am settled the same is appealable. From the above, I find apposite to craft one issue which cut across all three grounds raised by the appellant; which is whether by the time the decision of the ward tribunal was issued, the said tribunal had the jurisdiction of mediating only and not adjudicating of dispute. Section 14 of the Interpretation of Laws Act [Cap 1 R.E 2019] provides that every Act shall come into operation on the date of its publication in the gazette or some other date provided for in any other law. According to the record, it depicts that the Decision by the Kahe Mashariki Ward Tribunal was delivered on 10th June 2021. I subscribe with the 10 contention by the appellant when he stated that the Amendment of Section 13 of The Land Disputes Courts Act Cap 216 by Section 45 of the Written Laws Miscellaneous Amendments Act No. 5 of 2021 which ceased the power of the Ward Tribunal to hear and determine Land Disputes came into effect on 11th October 2021, thus arithmetically it is true the decision of the Ward Tribunal was delivered four months before the said act came into force. Now having the above incidents in mind, the next point to be considered is whether the said law can act respectively to the decision of the Ward Tribunal delivered on the above said date. It is trite law that unless there is a clear indication either from the subject matter or from the working of Parliament that Act should not be given a retrospective construction. One of the rules of construction that a Court uses to ascertain the intention behind the legislation is that if the legislation affects substantive rights, it will not be construed to have retrospective operation, unless a clear intention to that effect is manifested, whereas if it affects procedure only, prima facie it operates retrospectively unless there is good reason to the contrary. ( See Makorongo vs. Consigilio [2005] 1 EA 247 ; Municipality of 11 Mombasa vs. Nyali Limited [1963] 1EA 371; Benbros Motors Tanganyika Ltd vs Ramanlal Haribhai Patel [1967] HCD 435; The Director of Public Prosecutions vs. Jackson Sifael Mtares & Three Others, Criminal Appeal No. 2 of 2018; Jovet Tanzania Limited v. Bavaria N.V, Civil Application No. 207 of 2018; BIDCO Oil and Soap Ltd v. Commissioner General Tanzania Revenue Authority, Civil Appeal No. 89 of 2009; and Lala Wino v. Karatu District Council, Civil Application No. 132/02 of 2018 (all unreported) to mention few. In the case of Benbros Motors Tanganyika Ltd vs Ramanlal Haribhai Patel (supra) it was held that; "When a new enactment deals with rights of action, unless it is so expressed in the Act, an existing right of action is not taken away but when it deals with procedure only, unless the contrary is expressed the enactment applies to all actions whether commenced before or after the passing of the Act" Therefore, guided by the above cited authorities it is clear that retrospective effect deals with procedure only on cases which are pending or still to come before the court. However, such effect does not have such 12 effect on the cases decided substantively before the said law came into operation, unless the same is expressed stated in said enactment. With respect, Mr. Shayo misapprehended the ratio in Municipality of Mombasa vs Nyali Ltd (supra). In that case, the existed law required that the application for leave to appeal should have been made within twenty-one days and accordingly, the court dismissed the application filed as being out of time. On April 2, 1963, the time for making an application for leave to appeal was restored to sixty days by virtue of the Kenya (Procedure in Appeals to the Privy Council) (Amendment) Order-in-Council, 1963. Then an application for a reference to the full court was made on May 6, 1963, and it was submitted that the provision relating to the time within which the application for leave to appeal should be made is clearly a procedural provision and that where legislation relating to procedural matters is amended, then the new procedural provisions have retrospective effect. As the result, it was urged, if the application for leave to appeal had been filed within sixty days from the date of the judgment, whether the application was properly before the full court. The court held that; “in the absence of clear w ords calling for such a construction in the Kenya (Procedure in Appeals to the Privy Council) (Amendment) 13 Order-in-Council, 1963, requiring the amendment effected by s. 2 thereof to apply to judgm ents given at any period in the past, the procedural provision therein could not operate retrospectively as such a construction could result in m anifest injustice.” [ Emphasise is mine] From the above authority, it is my firm observation that, also in this matter, since the said amendment of the law did not have clear words requiring to be applied to the judgment delivered at any period in the past, thus the said law cannot operate retrospectively on decided matters before the law came into force. Thus, the order of the District Land and Housing Tribunal stating that the jurisdiction of the ward tribunal by then was limited to mediating only was unfounded. In the event therefore, I find this appeal meritorious and the same is allowed to such extent. In the final analysis, I, in the exercise of supervisory powers vested in this Court by section 43(1)(b) of the Land Disputes Courts Act (supra), the proceedings and order of the District Land and Housing Tribunal of Moshi at Moshi in Land Appeal No. 26 of 2021 are hereby nullified, quashed and set aside. Consequently, the proceeding and Judgment of 14 Kahe Ward Tribunal in Madai ya Ardhi Na. 3/2021 is hereby restored. I thus, hereby order the appeal filed in District Land and Housing Tribunal of Moshi at Moshi in Land Appeal No. 26 of 2021 be heard denovo on merit by another different learned Chairman of the District Land and Housing Tribunal. After considering the circumstances of the case, I order each party to bear its own costs. It is so ordered. DATED at MOSHI this 28th day of August, 2024 X JUDGE Signed by: A. P. KILIMI 15 Court: Judgment delivered today on 28th day of August, 2024 in the presence of Mr. Gabriel Shayo learned advocate for the Respondent. Both Appellant and Respondent present in person. Sgd; A. P. KILIMI JUDGE 28/08/2024 Court: Right of Appeal duly explained. Sgd; A. P. KILIMI JUDGE 28/08/2024 16