Barrick North Mara v

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY

AT MUSOMA MISCELLANEOUS LAND APPLICATION NO. 202404291000009329 (Arising from the Judgement and Decree of the High Court of Tanzania (Musoma Sub- Registry) in Land Appeal No. 20231127000026199) BARRICK GOLD MINE LIMITED........................................................APPLICANT

VERSUS AUGUSTINO NESTORY SASI.....……………………………………...…RESPONDENT

RULING OF THE COURT 18/07/2024 & 22/08/2024 Kafanabo, J.: This is an application for certification of points of law for consideration by the Court of Appeal. To be exact, the Applicant beseeches this court to certify points of law for consideration by the Court of Appeal in the intended appeal against the judgment and decree of this Court in Land Appeal No. 20231127000026199 dated 26th February 2024. Other prayers in the application are as regards costs and any other order the Court may deem just to grant. A brief background of the matter is that the dispute between the parties herein has its roots in a disputed mediation settlement of Kemambo Ward Tribunal in Land Dispute No. 28 of 2023. The Applicant was dissatisfied with the proceedings and the supposed mediation settlement of the Kemambo Ward Tribunal and filed Revision No. 90 of 2023 in the District Land and Housing Tribunal for Tarime seeking the revision of the 1 proceedings of the Ward Tribunal and the disputed mediation settlement. On 13th September 2023, the District Land and Housing Tribunal for Tarime dismissed the said in Revision No. 90 of 2023. The Applicant, being dissatisfied with the said decision, preferred to this court, a Land Appeal No. 20231127000026199 challenging the decision of the District Land and Housing Tribunal for Tarime on various grounds all of which aimed at faulting the decision of the

District Land and Housing Tribunal for Tarime in not quashing and/or nullifying the mediation settlement of the Kemambo Ward Tribunal. On 26/2/2024, this court delivered its judgment nullifying the proceedings of the District Land and Housing Tribunal for Tarime (hereinafter referred to as the ‘DLHT’) in Revision No. 90 of 2023 and dismissed the appeal filed by the Applicant. The Applicant is dissatisfied with the said decision of this Court and intends to appeal to the Court of Appeal. The Applicant had lodged a notice of intention to appeal to the Court of Appeal and thus this application seeks this Court to certify points of law for purposes of appealing to the Court of Appeal against the decision of this Court dated 26/2/2024 in the said Land Appeal No. 20231127000026199. The relevant points of law sought to be certified by this Court are stated in the affidavit in support of the application. The Respondent filed the counter affidavit opposing the application and filed a notice of preliminary objection against the application. Therefore, since the matters of law are to be determined first, this court before hearing and determining the application for certification of points of law is compelled 2 to determine the preliminary objection raised by the Respondent. The preliminary objection raised states that: “Owing to the fact that the appeal to the High Court did not

originate from the decision of the Ward Tribunal, the instant application is misconceived for being preferred under the provision of section 47 (2) of the Land Disputes Courts Act, Cap. 216 as amended.” The Court ordered that the said preliminary objection be disposed of by written submissions of the parties. Both parties complied with the schedule of written submissions as ordered by the Court. Further, in light of the submissions filed in court, the Applicant enjoyed the services of Messrs Renatus Shiduki and Faustin Malongo, learned advocates, and the Respondent was duly represented by Messrs Mdimi Thomas Ilanga and Emmanuel Paul Mng’arwe, learned Advocates. In this ruling, all submissions of the learned advocates for the parties have been duly considered and the same will be reproduced briefly herein, and where necessary reference will be made to specific parts of the relevant submission. Commencing with the Respondent’s submissions in support of the preliminary objection, the Respondent submitted that an application on the certification of point of law is grantable where the Court of Appeal will sit to determine the intended appeal for a third time citing the cases of Mathew Mlay vs Rashid Majid Kasenga, Civil Application No. 354/17 Of 2020, (Unreported) and Mariam Nyangasa vs Shaban Ally Sembe, Civil Appeal No. 17 Of 2019 (Unreported). 3 It was the Respondent’s learned

counsels’ submission that the instant application had been preferred after the dismissal of the Applicant’s appeal by this Court when it determined the appeal as the first appellate Court. It was submitted by the learned counsels for the Respondent that Land Appeal No. 20231127000026199 was, in essence, preferred to challenge the decision of the District Land and Housing Tribunal of Tarime in application for Revision No. 90/2023. However, the Decision of the Ward Tribunal of Kemambo remained unchallenged. It was the Respondent’s counsels’ submission that, currently, the Ward Tribunal has no power to adjudicate and determine land disputes, but is only vested with mediation powers and no appeal would be entertained from a consent settlement of the Ward Tribunal. It was further argued that in the instant application, the Applicant is challenging the decision of DLHT which dismissed Revision No. 90/2023. Therefore, the decision that she wants to challenge to the Court of Appeal of Tanzania originated from the DLHT. The Applicant, on the other hand, was of a different view. First, the learned counsels of the Applicant submitted that the Applicant never agreed to settle Land Case No. 28 of 2023 at Kemambo Ward Tribunal. The alleged settlement is disputed and that is why even in this application, one of the points for which the Applicant is seeking certification is whether it was

proper for this Court to hold that the parties reached a settlement before the Kemambo Ward Tribunal. The Applicant’s counsels also disputed the Respondent’s argument that certification of point of law is only required if 4 the Court of Appeal will hear the Appeal as a third appellate Court distinguishing the cases cited by the Respondent’s counsel. It was further submitted that in terms of section 47(2) of the Land Disputes Courts Act, Cap. 216 as amended in 2023, there is no requirement that an intended appeal to the Court of Appeal must have arisen from an appeal arising from the decision of the Ward Tribunal, or that it should be a third appeal as argued by the Respondent’s counsels. Instead, the appeal requiring certification of points of law to the Court of Appeal only needs to have originated from the Ward Tribunal. The operative word used is “originates”, which is defined, in Oxford Advanced Learner’s Dictionary as “to happen or appear for the first time in a particular place or situation”. It was also submitted that the words of a statute should be construed in a context of a statute referring to the case of the Republic v. Mwesige Godfrey and Another, Criminal Appeal No. 355 of 2014 (unreported). It was further submitted that the decision of the High Court sought to be challenged arose from Revision No. 90 of 2023, which was lodged by the Applicant at the DLHT, and

which was aimed at requesting the DLHT to revise the proceedings of the Kemambo Ward Tribunal in Land Case No. 28 of 2023. The further argument was that the Kemambo Ward Tribunal is the origin of the decision of this Court sought to be challenged by way of appeal. Irrespective of what transpired at the Kemambo Ward Tribunal, but in the absence of Land Dispute No. 28 of 2023 and all consequential proceedings thereof, Revision No. 90 of 2023 at the DLHT would not have arisen as well as Land Appeal No. 20231127000026199 in this Court, the decision of which has prompted the intended appeal, would not have been made. 5 After reviewing the parties’ submissions, first of all, this court takes note that the preliminary objection on wrong citation of the provision of the law was abandoned and thus will not be addressed by this court, and in any case it does not take away the jurisdiction of this court in hearing and determining the matters before it. The cases of Director General Lapf Pension Fund vs Pascal Ngalo (Civil Application No. 76 of 2018) [2020] TZCA 289 (10 June 2020), Amani Girls Home vs Isack Charles Kanela (Civil Application No. 325 of 2019) [2019] TZCA 458 (11 December 2019) and the Registered Trustees of Baraza Kuu la Jumuiya ya Waislamu Tanzania vs Registered Trustees of the National Muslim Council of Tanzania (BAKWATA) (Civil Application No. 480/08 of 2024) [2024]

TZCA 630 (24 July 2024) are relevant. Moreover, in light of the submissions made by the parties, it is clear that the parties’ major contention is on the interpretation of section 47(2) of the Land Disputes Courts Act, Cap. 216 as amended by the Legal Sector Laws (Miscellaneous Amendments) Act, 2023. The said section reads as follows: 47.- (2) Where an appeal to the Court of Appeal originates from the Ward Tribunal, the appellant shall be required to seek for the Certificate from the High Court certifying that there is point of law involved in the appeal. The above-reproduced section is quite lucid, it is neither ambiguous nor unclear. It simply and articulately provides that a certification of this court that a point of law is involved is required where an appeal to the Court 6 of Appeal originates from the Ward Tribunal. The law does not provide that the Ward Tribunal should have made an appellable decision to the DLHT and/or that the appeal should have been preferred from the Ward Tribunal to the DLHT. The said section is also silent on the presence of a second appeal to the High Court as a condition precedent before invoking the provisions of section 47(2) of the Land Disputes Courts Act (supra). It follows that the case of Mathew Mlay vs Rashid Majid Kasenga, Civil Application No. 354/17 of 2020, (Unreported) is distinguishable from the present case because the Applicant

in that case was challenging a decision of the District Land and Housing Tribunal (DLHT) which refused to grant extension of time and which was filed at the DLHT as a court of first instance. Moreover, reading page 9 of the typescript of the said decision the Court of Appeal observed that: “What matters is whether the decision of the Ward Tribunal is the one that is instantly the subject of appeal or revision. The crux of the matter subsequent to the decision of the Ward Tribunal, is extension of time to appeal, on the ground of illegality. This pursuit commenced at the DLHT, not the Ward Tribunal, and went on appeal for the first time before Maige, J (as he then was) in Land Appeal…” In light of the foregoing authority, it is clear that the learned counsels for the Respondent, with respect, miscomprehended the Court of Appeal decision which they relied upon. This is because the said decision supports the Applicant’s necessary step taken. After all, she intends to appeal against 7 the decision of this Court, and the subject matter of the appeal being the settlement resolution reached at the Kemambo Ward Tribunal and not a subject matter that was commenced or initiated at the DLHT. The above reasoning also applies to the case Mariam Nyangasa vs Shaban Ally Sembe, Civil Appeal No. 17 Of 2019 (Unreported) which is also distinguishable from the present case because the decision of

the original case lodged in the Ward Tribunal was never challenged. Therefore, the authorities relied upon by the Respondent’s counsels are distinguishable from the circumstances of the present case taking into account that it is trite law that every case is determined based on its peculiar facts. Therefore, the crucial issue for determination, which shall be dealt with shortly, is whether the decision of this Court in Land Appeal No. 20231127000026199 originated from the Ward Tribunal to entitle the Applicant to invoke the provisions of section 47(2) Land Disputes Courts Act (supra). Moreover, the issue of whether the mediation settlement is revisable and/or appellable is not for this court to determine at this hour, given that the preliminary objection raised cruxes on the fact that the appeal to the High Court did not originate from the decision of the Ward Tribunal. At this juncture, it is also crucial to point out that when the Land Disputes Courts Act (supra) was amended in the year 2023, the contents of the current section 47(2) of the Act, which was section 47(3) before the amendment, requiring certification of points of law on appeals originating from the Ward Tribunal to the Court of Appeal were left intact for a purpose. 8 The Legislature was quite aware that the Ward Tribunal had been ripped off adjudicatory functions since 2021 vide the Written Laws (Miscellaneous Amendments) (No.

3) Act, 2021. This means that the legislature foresaw situations like the present one, that although the pronouncements of the Ward Tribunal in mediation are not appealable, the same, where circumstances and the law allow, may be challenged through other available remedies, and where a party deems necessary, to the level of the Court of Appeal. That is why section 47(2) of the Land Disputes Courts Act (supra) was drafted in such a manner that it does not categorically state that there should have been an appeal from the decision of the Ward Tribunal as a condition precedent in invoking the said section 47(2) of the Land Disputes Courts Act. It simply requires certification of point of law where the appeal to the Court of Appeal originates from the Ward Tribunal. Having revisited the meaning of section 47(2) of the Land Disputes Courts Act (supra), it is high time for this court to consider whether the decision of this Court in Land Appeal No. 20231127000026199 originates from the Ward Tribunal. The answer to that issue is not hard to find as the Respondent’s submissions have sufficiently answered the same, which is also the position supported by the Applicant. On page 04 of the Respondent’s submission, it was submitted, and it is quoted that: “Therefore, in the presence(sic) application, a distinction must be drawn between the fact that the matter was originally filed at the

Ward Tribunal of Kemambo, the fact which is not in dispute. However, subsequent to the consent Settlement made by the Ward Tribunal, the Applicant filed Revision Application 9 to the District Land and Housing Tribunal, the application which commenced from the District Land and Housing Tribunal and thus the same went on appeal for the first time before M.L. KOMBA J. Hence of the Applicant is intending to appeal to the Court of Appeal of Tanzania, she may do so without requiring a certificate on point of law as per the current position of the law.” Moreover, on page 03 of the submission in support of the preliminary objection the Respondent’s counsels submitted that: “On 26th April, 2023 the Respondent herein had instituted a Land Case No. 28/2023 at Kemambo Ward Tribunal against the Applicant for mediation purpose. After a lengthy discussion at Ward Tribunal, the duo agreed to settle the matter amicably whereby the Applicant agreed to compensate the Respondent the sum of One Hundred Billion Shillings (TZS. 100,000,000,000/=) being compensation for consolation after having lost interest in the land of the Respondent. The duo having freely executed the consent Settlement, some days later, the Applicant unsuccessfully moved the District Land and Housing Tribunal for Tarime to revise the proceedings and consent Settlement via Application for Revision No. 90/2023. Being displeased by

the Decision of Tarime District Land and Housing Tribunal she opted to knock the doors of the High Court at Musoma by lodging a Land Appeal No. 20231127000026199 where her appeal was too dismissed with cost for want of merit, thus this application.” 10 Based on the submissions of the parties, and the specific submissions referred herein above as extracted from the Respondent's submissions, read together with pleadings of the parties and annexes thereto, this court is satisfied that the decision of this Court in Land Appeal No. 20231127000026199, sought to be challenged by way of appeal to the Court of Appeal, originated from the Land Case No. 28/2023 instituted at the Kemambo Ward Tribunal and thus the Applicant properly invoked the provisions of section 47(2) of the Land Disputes Courts Act, Cap. 216 as amended by the Legal Sector Laws (Miscellaneous Amendments) Act, 2023 in applying for certification of points of law for purposes of appealing to the Court of Appeal. Under the circumstances, the preliminary objection raised by the Respondent is hereby dismissed with costs. It is so ordere^^-^Z^S, । , / 'r K. I. Kafanabo Judge 22/08/2024 The ruling was delivered today in the presence of Mr. Imani Mfulu & Ms. Rosemary Makori, Advocates representing the Applicant, and in the presence of Mdimi Thomas Ilanga Advocate for the Respondent. K. I. Kafanabo Judge 22/08/2024 li