Misc

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA MISC. LAND APPEAL NO. 11 OF 2023 (Arising from the District Land and Housing Tribunal for Rukwa at Sumbawanga in Land Appeal No. 20 of2023 and originated from Lyowa Ward Tribunal in Land Dispute No. 4of 2022) .... BEDA CHIPAMBA.............. ........................... ...i........... .................APPELLANT VERSUS '**V.;'••••.. ’■e•/ ’• • • •‘i : if.:',. WILBROD KAZONDA...... ................... ........................................... RESPONDENT JUDGMENT k 22K' July & 2dh August, 2024 z.%... ...... ' MRISHA, J. rk This is a second appeal by the appellant, Beda Chipamba against the respondent, Wilbrod Kazonda after losing his first appeal in the District Land and Housing Tribunal for Rukwa at Sumbawanga (the appellate tribunal) which decided the Land Appeal No. 1 of 2023 between him and the respondent, in favour of the latter. i His first appeal to the appellate tribunal was basically intended to challenge the decision of the Lyowa Ward Tribunal henceforth the trial tribunal, which also decided the said land dispute in favour of the respondent. Initially, the appellant sued the respondent before the trial tribunal for allegedly purchasing the disputed land from one Francis Chipamba, the appellant's relative, whilst the same was belonging to the whole family of Chipamba. Th He therefore, urged the trial tribunal to order "the respondent to vacate from the said land which the latter had already developed by building a residential house therein. However, after a full trial, which involved visiting the locus in quo by members of the trial tribunal, the said land court found in favour of the respondent whom it declared to be the lawfully owner of the disputed land and had the right of appeal open to any aggrieved party within forty-five (45) days from the date of delivering its judgment which was 05.12.2022, as per the unpaged typed judgment of the trial tribunal. At the appellate tribunal, the appellant fronted three (3) grounds of appeal and among such grounds, was the first ground in which he complained that the trial tribunal had no jurisdiction to hear and determine the land dispute case as it did. 2 Conversely, through his reply to the appellant's petition of appeal, the respondent contended that what the trial tribunal did was to settle the matter amicably between him and the appellant and not to hear and determine the said land dispute as claimed by the appellant. After hearing the oral submissions of both parties in relation to the appellant's petition of appeal, the learned appellate tribunal chairperson, despite indicating at page 2 of her judgment that by virtue of section 13 of the Land Disputes Courts Act, Cap 216 R.E. 2002 henceforth the LDCA, as amended by section 45 of the Written Laws (Miscellaneous Amendment) Act No. 3 of 2021, % •; ‘-S .•. • 11: > F: •, I. -7: the trial tribunal was supposed to settle the land dispute amicably between the appellant and the respondent, went a further step ahead by re-evaluating the evidence of the appellant and,resolved-that his appeal before the appellate tribunal was unmerited. Hence,; she departed from the majority opinions of the gentlemen assessors and opted to rely on her own descending opinion to dismiss the appellant's first appeal with costs. Still aggrieved with the above decision of the appellate tribunal, the appellant has approached this court with a five (5) grounds petition of appeal. The said grounds Of grievance can be replicated as hereunder: 1. The tribunal chairperson erred in law (sic) in fact to abandon her statutory powers in handling the matter before her and embarking on 3 holding and deciding it as an appeal the function which was out of her statutory jurisdiction. 2. The tribunal chairperson erred in law and fact to determine the matter before her and decide it as she did (sic) basing all the (sic) decision on hearsay evidence. 3. That the tribunal chairperson erred in law and fact to adjudge the appellant that way without affording the latter any chance of being (sic) heared. ' 4. That the tribunal chairperson erred in law and fact to leave away the important grounds brought to her by the appellant and decide the matter on her own chosen ones., ■ 5. That the impugned judgment and decree (sic) there for were entered at Sumbawanga on 14/06/2023 so within the Court's jurisdiction and time limit.' On the other hand, through his reply to the appellant's petition of appeal, the respondent.vehemently disputed all the grounds raised by his counterpart and inter alia, contended that the tribunal chairperson did not commit any error in iaw and fact, but abided to the statutory rules and regulations in handling the application to its merits based on the principle of jurisdiction of the tribunal. 4 At the time this appeal was called on for hearing, the appellant was present in person and represented by Mr. Baltazar Cham bi, learned advocate whereas on the adversary side, the respondent appeared in person, legally unrepresented. Practically, it was the appellant's counsel who ought to take the flow in arguing about the raised grounds of appeal, then the respondent. However, before doing so, Mr. Chambi dropped grounds 2 and 3, and then went on arguing about the remaining grounds of appeal. < .. Starting with ground 1, the learned counsel submitted that before 11th October, 2021 the Ward Tribunals had mandate to hear and determine land disputes as per section 13 of the LDCA, but following the enactment of the Written Laws (Miscellaneous Amendments) (No. 3) Act, 2021, the said jurisdiction seized, thus from then onwards, the Ward Tribunals are mandated to mediate parties to the land disputes within a period of thirty (30) days. He added that based on the aforementioned new amendment, in the event the Ward Tribunal fails to settle the dispute within thirty days from its filing, then it has to certify to the District Land and Housing Tribunal that it has failed to settle the land dispute, then the latter tribunal will hear and determine such dispute and deliver its judgment. The counsel for the appellant also submitted that in the present appeal, the above procedure was not complied with because instead of settling the land 5 dispute between the appellant and the respondent in an amicable way, the trial tribunal heard and determined it in favour of the respondent. He therefore, challenged the decisions of the two courts below arguing that although at page 2 of its judgment, the appellate tribunal agreed that the trial tribunal had no jurisdiction to hear and determine the land dispute between the appellant and the respondent, yet it did not take any action. The appellant's counsel further submitted that the land dispute between the appellant and the respondent was filed with the trial tribunal on 11.10.2022 and the said tribunal determined it bn 05.12.2022 meaning that after expiration of thirty days thereon, the said landdispute ought to have been filed with the District Land and Housing Tribunal for it to be heard and determined. Hence, itwas his submission that the appellate tribunal erred in law by hearing an appeal from the Ward Tribunal. His submission in regards to ground 4 was intended to fault the appellate tribunal's chairperson for her failure to address the raised grounds of appeal and instead introduced the principle of adverse possession which, the counsel argued, was wrongly applied by the said chairperson. In his reply, the respondent briefly submitted that the appellant is the one who instituted the dispute in the trial tribunal on 17.10.2022 and he was given a chance to adduce his evidence. He also prayed to adopt his reply to petition 6 of appeal for it to form part of his submission in chief, then urged the court to dismiss the instant appeal with costs and upheld both the judgment and decree of the appellate tribunal. Thereafter, no rejoinder submission was made by the appellant's counsel. It appears from the above rival submissions that the main contentious issue between the parties to this appeal, is whether the trial tribunal had jurisdiction to hear and determine the land dispute filed by the -appellant as it did. The term jurisdiction, though not been defined in our statutes, is a legal issue whose definition can be found in case law and legal textbooks. For instance, in the case of Balthazary Kinasha vs Paula Bemad Nindi, Misc. Land Appeal No. 69 of 2020 (HCT at Dar es Salaam, -unreported), this court had an opportunity to borrow the definition of the term jurisdiction from the Halsbury's Laws of England, 4th Edition, Re issue Vol 10 para 314 in which such word has been defined tomean: "By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which is constituted.... "[Emphasis supplied] 7 Flowing from the above definition, it is crystal clear that the court of law can only hear and determine the matter brought to it upon being clothed with a requisite jurisdiction to do so and such authority or power is derived from either the statutes, charter or commission under which is constituted. In the present appeal, the appellant has fronted ground 1 of his petition of appeal to fault the learned chairperson of the appellate tribunal for handling the land matter which had previously been tabled before her by the appellant as an appeal, which was out of her statutory jurisdiction.: In other words, the appellant now tries to challenge the decision of the said learned chairperson for dealing with the said land dispute as if it stemmed from decision of the trial tribunal which is sought to be challenged by way of an appeal to the appellate tribunal while in fact such tribunal had no jurisdiction to hear and determine that matter; Before addressing such ground further, I wish to say that ! have gone through the entire records of the two courts below as well as the impugned judgments of those courts. Likewise, I have considered the rival submissions of the parties herein and the remaining two grounds of appeal. However, having examined grounds 1 and 4 which the parties have argued for and against, I am of the considered opinion that this appeal can be disposed of through the first ground; hence, there is no need to address the fourth. 8 This approach is accepted in determining appeal cases especially where for convenience purposes, the appellate court finds that among the raised grounds of appeal, there is one which it considers to be a decisive ground of appeal. (See: Malmo Montagekonsult AB Tanzania Branch v. Magret Gama, Civil Appeal No. 86 of 2001 (unreported). In that case, the Court of Appeal had this to say: '7/7 the first place, an appellate court is not expected to answer the issues as framed at the trial. That is the rote of the trial court. It is, however, expected to address the grounds of appeal before it. Even then, it does not have to deal seriatim with the grounds of appeal as listed in the memorandum of appeal. It may, if convenient address the grounds generally or address the decisive ground of appeal only or discuss each ground separately." [Emphasis supplied] Reverting back to the; case at hand, it is apparent that the first ground of appeal touches the issue of jurisdiction which if found to be wanting on the part of the appellate and trial tribunals, will entail that the land dispute the subject of this appeal, had not been heard and determined by the courts with competent jurisdiction and this is why I find it convenient to address the first ground of appeal only in determining the instant appeal. 9 That apart, I am alive to the trite law that the appellate court: is barred from dealing with new matters which were not raised and decided by the trial court. However, the exception to that general rule is where the legal issues like jurisdiction are raised at the appellate stage. (See: Gaga Basu & Another vs The Republic, Criminal Appeal No. 586 of 2020 (CAT at Shinyanga) and Shungu Walyene vs Jackson Mwasaka, Misc. Land Appeal No. 04 of 2022 (HCT at Mbeya) (all unreported). ' ■ In the latter case, for instance, it was stated that: T >■: "T ''The law prohibits matters of fact to be raised at the appellate stage, if the same were not raised at the trial stage. With regard to legal matters, especially on jurisdiction of the court, the law is firmly settled tothe effect that they can be raised at any stage, indudingasecondappeal...) [Emphasis added] The records of the trial tribunal do not show anywhere if the appellant questioned the jurisdiction of that tribunal when it was dealing with the land dispute between him and the respondent. This means that the issue of jurisdiction was not raised and decided at the trial stage, but at the first appellate stage, as it is shown at 3 of the typed records of the appellate tribunal where the appellant was recorded in Kiswahili language to have complained, intel alia, that: io "...Mhe. sikuridhika na maamuzi ya Baraza !a Kata kwasababu Baraza la kata halikuwa na mamlaka ya kutoa hukumu" The above excerpt literally means, "Your honour I was aggrieved with the decision of the Ward Tribunal for it had no jurisdiction to deliver judgment/' However, based on the above authorities including the one from the Court of Appear which I am bound to follow, and another from this Court which I am persuaded to follow, I am of the settled view that si rice the new issue raised by the appellant involved jurisdiction of the trial tribunal, this court is entitled to address it and find out whether the said tribunal had jurisdiction to hear and determine the land matter between the parties herein. Should the answer to such issue be in the negative, the next issue will be whether the findings of the appellate tribunal were correct. y Starting with the first issue, the jurisdiction of the Ward Tribunal to hear and determine land disputes had been enjoyed by the Ward Tribunals in our country for many years. However, subsequent to the enactment of Written Laws (Miscellaneous-Amendments) (No. 3) Act, 2021 which came into force on 1.1th October, 2021, the said tribunals have been ousted with such jurisdiction; their only jurisdiction is to settle the land disputes between the parties amicably within the prescribed time. ii The above position is fortified in the provisions of section 45 (c) of the Written Laws (Miscellaneous Amendments) (No. 3) Act, 2021 which has amended section 13 of the LDCA to the effect that: "45. The principal Act is amended in section 13, by- (a) deleting subsection (2); (b) re-numbering subsections (3) and (4) as subsections (2) and (3) respectively; and " v. (c) adding immediately after subsection (3) as re numbered the following: "(4) Notwithstanding subsection (1), the District Land and Housing Tribunal shallnot hear any proceeding affecting the title to or any interest in land unless the ward tribunal has certified that it has failed to settle the matter amicably: Provided that, where the ward tribunal fails to settle a land dispute within thirty days from the date the ■matter was instituted, the aggrieved party may proceed to institute the land dispute without the certificate from the ward tribunal." Flowing from the above provisions of the law, it is apparent that as of now the Ward Tribunals do not have jurisdiction to enquire into and determine disputes arising under the Land Act Cap. 113 and the Village Land Act Cap. 114, the jurisdiction they used to have before the amendment of section 13 of the LDCA. This is so because subsection (2) of section 13 of the LDCA is no longer 12 existing after been amended by section 45 (a) of the Written Laws (Miscellaneous Amendments) (No. 3) Act, 2021. It is also important to bear in mind that following the said amendments, the District Land and Housing Tribunal cannot hear any proceeding affecting the title to or any interest in land unless the ward tribunal has certified that it has failed to settle the matter amicably, and the only exception is that such mandatory requirement can be dispensed with where the tribunal has failed to settled the land dispute amicably within a period of thirty (30) days from the date the matter was instituted. ' W,; w Under such exceptional circumstances, the aggrieved party can institute the land dispute to the District Land and Housing Tribunal without the certificate from the Ward Tribunal. This position is provided for under section 45 (c) of the Written Laws (Miscellaneous Amendments) (No. 3) Act, 2021. * Y'.l-S.s Back to the instant appeal, the typed records of the trial tribunal depicts clearly that the appellant filed the land dispute with the trial tribunal on 11.10.2022 and its decision was delivered on 05.12.2022. This means the trial tribunal inquired into and determined the land dispute between the appellant and the respondent without having requisite jurisdiction to do so because by then the law which formerly vested them with jurisdiction, was no longer 13 existing due to the operation of the Written Laws (Miscellaneous Amendments) (No. 3) Act, 2021, The counsel for the appellant has argued that following the said amendment, the trial tribunal had no jurisdiction to hear and determine the land dispute between the appellant and the respondent, but on his part, the respondent has maintained that the said tribunal had such jurisdiction. L However, it is unfortunate that his argument was not backed up by any authority. Hence, based on the foregoing reasons, I find the first ground of appeal to be with merits and proceed to answer the first issue in the negative. The second issue is whether the appellate tribunal's findings were correct. It has been a settled law that second appellate court should not interfere with concurrent findings of the two courts below unless it is satisfied that the finding is based on misdirection or misapprehension of evidence or violation of some principle of law or procedure or has occasioned a miscarriage of justice. (See: Godwin Mduma vs Adequate (T) Microfinance Ltd, PG Civil Appeal No. 48 of 2021 (HCT at Dar es Salaam, unreported). In its judgment, the appellate tribunal whilst indicating that the trial tribunal ought to have reconciled the appellant and the respondent based: on the new amendment of the LDCA, which was correct because following the enactment of the Written Laws (Miscellaneous Amendments) (No. 3) Act, 2021 the Ward 14 Tribunals no longer had jurisdiction to hear and determine land disputes, found that the trial tribunal was justified to find the means of resolving the Said dispute and finally proposed that the respondent should continue to own the disputed land based on the principle of adverse possession. With all due respect to learned chairperson who presided over the said appellate tribunal, hers was a total misdirection of the law because after noticing that the powers of the trial tribunal were limited to settling the land dispute between the appellant and the respondent, she ought to have quashed the decision of the said tribunal, set aside its subsequent orders and direct it to reconcile the said parties, as per the current procedures. It is due to the foregoing reasons that I answer the second issue in the negative. Before I wind up, I find it apposite to comment a little bit about one of the prayers submitted by the appellant's counsel in the petition of appeal. His counsel has prayed that upon quashing and setting aside the judgment and decree of the trial and appellate tribunals with costs, the court be pleased to order a retrial before the District Land and Housing Tribunal. Apart from being perplexing, such prayer cannot be granted by the court because first the appellant has not specified from whose judgment between the two lower courts, he was referring to. Secondly, since the land dispute between the parties herein stems from the Ward Tribunal where it was 15 erroneously heard and determined as indicated above, the proposed retrial order cannot be made for the obvious reason that the ward tribunals are no longer vested with jurisdiction to inquire into and determine land disputes. In the premises, I am constrained to find merits in the present appeal and allow it with costs. Consequently, I nullify the proceedings, quash the judgment of the appellate tribunal and set aside the orders thereto. I also nullify the proceedings, quash the judgment of the trial tribunal and set aside the orders which emanated from that judgment. The appellant is at liberty to file a fresh suit with the District Land and Housing Tribunal subject to the current procedures which regulate the land disputes settlement in our country. A JUDGE 20.08.2024 DATED at SUMBAWANGA this 20th day of August, 2024 JUDGE 20.08.2024 16