Land Appeal No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM LAND APPEAL NO. 7875 OF 2024 (Originating from Application No. 7 of 2020, Kinondoni District Land and Housing Tribunal) ATHUMANI ALLY SHAURI.................................................................................. ,1stAPPELL IBRAHIM ALLY TINDWA.................................................................................... 2ndAPPELL KITENGE SIMON KIOTA..................................................................................... 3rdAPPELL SAID SALIM TENGA............... ...................................................... „.4TH APPELLANT JULLEN MWANYILU............................................................................................ 5thAPPELL OTHMAN HAMIS MWANYA................................................................................. 6thAPPELL JAMES TARIME.................................... 7th APPELLANT

VERSUS FAUSTA NGOWI............................. 1st RESPONDENT FAUSTA NGOWI (Guardian of Lorraine Cuthbert)................................2nd RESPONDENT

JUDGMENT 13th to 28th June, 2024 E.B. LU VAN DA, J The Appellants named above are appealing against the ruling of the Tribunal which overruled their objections primarily directed to the propriety of bringing or suing on behalf of the minor by the guardian to the counter claim. In the memorandum of appeal, the Appellants raised four grounds of appeal: One, the trial Tribunal erred in law and facts by deciding that Fausta Ngowi (guardian of Lorraine Cuthbert) was properly representing Lorreaine Cuthbert as the guardian without following procedure laid by the provisions of the law in the representing a minor in the court of law; Two, the trial Tribunal erred in law i and facts by issuing an order to the Respondents that they are at liberty to re­ file an application without such a requisite jurisdiction; Three, the trial Tribunal erred in law and facts by declining to grant costs to the Appellants without according any reason for the decision; Four, the trial Tribunal erred in law and facts in determining the matter extraneously contrary to the law. Mr. Gidion Opanda learned Counsel for the Appellants submitted that on the record of impugned decision reveals that the First Respondent appeared in the Tribunal in person and the same as the Second Respondent. He submitted that it is on the record that Fausta Ngowi appeared as Second Respondent (guardian Lorraine Cuthbert) in the said

proceedings without to follow proper procedures laid down in the provisions of the law, citing Order XXXI Rule 3(1) of the Civil Procedure Code, [CAP 3 R.E. 2019], He submitted that it is apparently on the record that the Second Respondent has never been appointed by any court of law to be the guardian of a minor (Lorraine Cuthbert) in the impugned proceedings. He submitted that the written statement of defence and the counter claim by Fausta Ngowi (Guardain Lneaior Cuthbert) in Application No. 2019 in the impugned decision violated provisions of the law as provided under Order XXXI rules 1, 2, 3,4, and 5(1) Cap 33 (supra), in that the provision under Order 5(1). He submitted that the forgoing provision of the law a person to represent minor, it is on the record that the Second Respondent has never been appointed 2 guardian of Loreine Cuthbert as the representative of a minor in the court of law. Ground number two, the learned Counsel submitted that the Honourable Chairperson granted liberty refile the application at the Respondents' wish without perquisite jurisdiction. He submitted that it is on record that the Respondents in this appeal are the Applicants in the Application by counterclaim in Application No. 07 of 2019 at the Tribunal and are Appellants in this appeal brought by way of the said counterclaim without passing mediation process at the Ward Tribunal as per the

dictate of the law. He submitted that the record of the Tribunal show that the counterclaim by the Respondents was filed on 08/11/1202. He submitted that the date which the amendment of the Land Disputes Courts Act [CAP 216 R.E. 2019] which come into force through the Government Notice No. 04 of 2021 on the 12/10/2021. He submitted that under section 45(4) of the Written Laws (Miscellaneous Amendment) (Act No.) 3 Act No. 5 of 2021 amended sections 132() and 16 (1) Cap 216 (supra). He cited the case of Maria Awe Dagno V. Gwandu Ako Gwandu, Land Appeal No. 162/2022, High Court of Tanzania (District Registry of Arusha) at Arusha (unreported) at page 14. He submitted that the application was incompetent for being not passed through mediation at the Ward Tribunal. He cited the case of Fereji Said Fereji V. Jaluma General Supplies Limited & Another, Land Case No. 86 of 2020, High Court of Tanzania (Land Division) at Dar es 3 Salaam, (unreported) pages 7 &,8, regarding the remedy for incompetent suit. He submitted that the Appellants are prejudiced by the impugned decision of the Tribunal for being denied costs while the Appellants incurred costs by filing the pleadings, engagement advocate and time spent in the tribunal for prosecuting the application particularly counter claim by the respondents. He submitted that it is trite law that the costs follow the event which means that

a party who wins the case is entitled to costs, arguing that when there is denial or in case the court decline to grant costs, reasons must be given on the fate judiciously, citing section 30(2) Cap 33(supra); Naile Tozo V. Philimon Musa Mwashilanga [2002] TLR 276; Jaabilswalehe Koosa & 4 Others vs The Registered Trustee Of Islamic Center, Civil Reference No. 08 Of 2021, High Court Of Tanzania, (Moshi District Registry) At Moshi (unreported) page 12. He submitted that the Tribunal failed to provide judicious reasons on why the Appellants were denied costs while the application prosecuted successfully, arguing in the ruling the Tribunal ruled that the costs shall be provided in the due cause but later when the matter came into finality by striking out the court denied to award costs to the Appellants. Ground number four, the learned Counsel submitted that from the findings of the Tribunal, the Honourable Chairperson ruled out on extraneous maters. He submitted that the impugned decision went beyond the scope of the matters which on the dispute and were not prayed by the Respondents. 4 Mr. Alphonce Katemi learned Counsel for Respondents submitted that this appeal is misconceived, the Appellants appear do not know what exactly they are appealing against. He submitted that the Appeal does not indicate which judgment the Appellants are appealing against. He submitted that

the memorandum of appeal does not show which decision of the Tribunal the Appellants are challenging, likewise even the submissions of the Appellants do not show this fact. He submitted that it is therefore the Appellants are neither aware nor certain of what they are for before this court. He submitted that this court has to be precisely moved and guided. He submitted that in the appeal at hand, this courtis completely left in the dark as to what decision the Appellants are challenging. He submitted that this deliberate confusion and reckless by the First, Second, Third, Fourth, Fifth, Sixth and Seventh Appellants, leaves this court with guesswork. He invited this court to dismiss this appeal with costs. In the alternative, the learned Counsel for Respondents submitted that the matter at the Tribunal was concluded on a preliminary objection. He submitted that he Appellants have raised a series of preliminary objections, however, the Tribunal determined the matter on the preliminary objection on lack of proper description of the land in dispute. He submitted that it is really wrong for the Appellants to keep on arguing this point of law that did not determine the matter. It is trite law that a court, when faced with multiple preliminary objections, can legally choose one that determines the matter and decline 5 wasting its precious time on the other preliminary objections. He

submitted that the Appellants are arguing this ground as if the matter went on to final trial, which is not the case. He submitted that there was an application against the Respondent, then the Respondents filed a counter claim against the Appellants herein. H submitted that the Appellant's application was dismissed and the trial Tribunal continued with the Respondent's counter claim, he submitted that even if the trial Tribunal had to consider this legal point in the affirmative, arguing that alone could not had the effect to struck out the entire counter claim, arguing that Respondent's case was to be struck out. Ground number two, the learned Counsel submitted that the Respondents herein amended their written statement of defence to include a counter claim. He submitted that the first amended written statement of defence filed in the Tribunal on the 29/07/2021. He cited the Written Laws (Miscellaneous Amendments (No.

3) Act 2021, the Act that amended the Land Disputes Courts Act, Cap 216 came into effect on the 27/10/2021. He submitted therefore at the time the Appellants were sued in the counter claim the law requiring mediation was not yet inforce. Ground number three, the learned Counsel submitted that the award of costs is purely within the discretionary powers of the trial Tribunal, citing regulation 21 of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003, for a proposition that the Tribunal may make such orders as to costs in respect of the case as it deems just. He cited the Interpretation of 6 Laws Act, Cap RE 2019 provides under section 51 for a proposition that the phrase may it imports discretion. He submitted that the law governing proceedings in the Tribunal is the Land Disputes Courts (The District Land and Housing Tribunal) Act, Cap 216 RE 2019 together with its regulations, that is, Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003. He submitted that the Tribunal can only apply other laws where there is an inadequacy in the specific law. In the case at hand, the Appellants have erroneously resorted to the use of the Provisions of the Civil Procedure Code, Cap 33 RE 2019 (hereinafter referred to as the CPC). He submitted that the Tribunal will use the provisions of the CPC only where there is inadequacy in the

specific laws, citing section 51(2) of the Land Disputes Courts provides. He submitted that award of costs is not a mandatory consequence of the case. He submitted that Chairman may or may not award costs depending on the circumstances of each case. He submitted that this is the law that guides the Tribunal on the issue of costs. He submitted that the Tribunal shall only apply the CPC where there is inadequacy in the Regulations on a particular matter. Now, the matter at hand is on the award of costs. There is a specific provision in the specific law, that is, the Regulations. Regulation 21 covers the award of costs. He submitted that regulation 21 does not compel the Hon. Chairman to give reasons and in writing as has been misleadingly submitted by the Appellant. 7 The Appellants did not file a rejoinder to respond the argument of the learned Counsel for the Respondent, specifically the argument that the appeal is tainted with confusion. Going by the records of the Tribunal suggest that on 6/09/2022 the Tribunal delivered a ruling overruling the preliminary objections by the Appellants Counsel that in the counter claim the Respondent herein sued strangers who were not impleaded in the main suit. On 14/11/2022 Mr. Katemi learned Counsel for Defendants on the main suit (Respondents herein) asked the main suit to be dismissed on account of non appearance of the Applicant therein

(not a party to this appeal), and the Tribunal dismissed the main suit under regulation 11(1) of GN 174 of 2003 and thereby sanctioned hearing of the counter claim to proceed on 14/02/2023 On 22/09/2022 the Tribunal overruled a preliminary objection by Mr. Gideon Opanda learned Counsel for Respondents on the counter claim (Appellants herein) which was directed to the propriety of bringing or suing on behalf of the minor by the guardian on the counter claim. The ruling dated 22/09/2022 was attached to the grounds of appeal. On 24/01/2024 Mr. Gideon Opanda learned Counsel raised another preliminary objection, this time targeting a counter claim as well on the angle that it offended rule 3(2) of GN 174 (supra) and Order VII rule 3 Civil Procedure Code, Cap 33 regarding non disclosure of proper description of the suit property, Mr. 8 Katemi attempted to protest on account of a suit being subjected to multi preliminary objections, but Mr. Opanda Advocate argued to go up a hill, with eventuality of the Tribunal striking out the entire application by the order (ruling) dated 29/02/2024. However, the Tribunal declined to grant costs. This ruling was not attached to the memorandum of appeal In the memorandum of appeal which was filed electronically on 12/04/2024, the Appellants did not specify which decision or order they are appealing against. However, in the memorandum of appeal, the

Appellants attached the ruling dated 22/09/23 as aforesaid. Upon scrutiny of grounds of appeal the arguments, are vague to the extent that they are not giving a clear picture as the Appellants aggrievements and complaints are directed against which ruling, decision or order. As I have said this matter involved multiple decisions and rulings. In the memorandum of appeal, the Appellants only attached a ruling delivered on 22/09/2023, but some of the grounds of appeal does not match with what was ruled therein. Other decisions and ruling were neither mentioned nor attached to the memorandum of appeal. As alluded by the learned Counsel for Respondents this bring confusion and the Court is in limbo with unclear situation or direction to take, as it should sit to decide on which decision among the multiple decisions, rulings and orders issued by the Tribunal as above listed. 9 The appeal is struck out. No order for costs. E.B. 1UVANDA

JUDGE 28/06/2024 Judgment delivered in the absence of First, Second, Third, Fourth, Sixth, Seventh Appellants and in the presence of Fifth Appellant and Mr. Alphonce Katemi learned Advocate for the Respondents. 10