DENIS JOHN

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI LAND APPEAL NO. 7227 OF 2024 (Originating from Land Application No. 7 of 2023, District Land and Housing Tribunal for Simanjiro at Orkesumet) DENIS JOHN.................................................................................. APPELLANT VERSUS GEORGE OLTIMBAU LENG'SIA.................................................RESPONDENT JUDGMENT 18th September & 14th November, 2024 KAMUZORA, J. Before the District Land and Housing Tribunal for Simanjiro (hereinafter referred to as the trial tribunal), the respondent sued the appellant for recovery of a piece of land measuring about 50 acres situated at Langai village in Langai ward, within Simanjiro district in Manyara region (hereinafter referred to as the suit land). According to the respondent, he acquired the suit land after being allocated the same by Orkesumet village in 2002. He claimed that he was in peaceful occupation of suit land until 2022 when the appellant trespassed claiming to be the owner. That, Page 1 of 15 following the trespass, the respondent made several efforts to settle the matter amicably but in vain and a suit was instituted before the trial tribunal. In his written statement of defence, the appellant disputed the respondent's claims and contended that the suit land is party of his land measuring 110 acres which was allocated to him by Naberera village. After hearing the parties, the trial tribunal declared the respondent as lawful owner of the suit land. The appellant was displeased with the trial tribunal's decision and preferred the instant appeal with 8 grounds of appeal as follows; 1. That, the tribunal chairperson erred both in law and fact to entertain the application which was not referred to the ward tribunal for mediation as required by section 45(4) o f the Written Laws (Misc. Amendments) Act No. 5 o f2021. 2. That, the honourable chairperson erred in law and fact to deliver the judgment against the appellant while the appellant and his witnesses adduced heavier evidence which proved that the appellant was the lawful owner o f the disputed land. 3. That, the tribunal chairperson erred in law and in fact for delivering the judgment against the respondent basing on exhibit Dl. Page 2 of 15 4. That, the tribunal chairperson erred in law and fact for not considering that the exhibit was not read over by the witness after being admitted hence, rendering the proceedings and resultant judgment and decree a nullity. 5. That, the honourable chairperson erred in law and fact to deliver the judgment against the appellant without considering the principle o f adverse possession. 6. That, the tribunal chairperson erred in law and fact to admit exhibit PI while the same was not attached in the application and there was no notice produced by the respondent thereof. 7. That, the honourable chairperson erred in law and fact to decide in favour o f the respondent while the location o f the suit land is ambiguous. 8. That, the honourable chairperson erred in law and fact for failure to visit locus in quo. This appeal was disposed of by written submission in which the appellant was represented by Ms. Kurwa Lucas, learned advocate while the respondent was represented by Mr. Kuwengwa Ndonjekwa, learned advocate. Submitting for the 1st ground of appeal, Ms. Kurwa faulted the trial tribunal for entertaining the matter without jurisdiction for the same was not Page 3 of 15 I referred for mediation before the ward tribunal as required by section 13 of Land Disputes Courts Act [Cap 216 R.E 2019], (hereinafter referred to as the LDCA) as amended by section 45(4) of the Written Laws (Miscellaneous Amendment) Act No. 5 of 2021. She submitted that, in his application, the respondent attached a letter dated 15/2/2023 which was written and signed by the office of ward executive officer which had no jurisdiction to mediate land matters. She argued that section 13 of the LDCA as amended is enacted in mandatory term which means it was mandatorily required to be complied with. To buttress her argument, she referred the decision of this court in the case of Issa Iddi Kauzu vs Ally Abdala Mkoko & another Land Appeal No. 8 of 2022 (unreported). On the 2nd ground of appeal, the learned advocate referred section 110 (1) and (2) of the Evidence Act [Cap 6 R.E 2022] and the decision of this court in the case of Lucia Agustino Vs. Emmanuel Andrea, Civil Appeal No 6 of 2022 on the proof of facts. She insisted that, the appellant and his witnesses adduced stronger evidence than that of the respondent which proved how the appellant acquired the suit land but the trial tribunal failed to analyse such evidence. Page 4 of 15 On the 3rd ground of appeal, the learned advocate argued that, parties are bound by their own pleadings. She referred paragraph 4 of the appellant's written statement of defence in which the appellant claimed that he was allocated a piece of land measuring about 110 acres and issued with customary right of occupancy after the land was surveyed. She also referred the evidence of village chairman as well as the evidence of DW4 as proving that the appellant was allocated 110 acres by Naberera village. She faulted the trial tribunal for holding that the appellant trespassed into the respondent's land while the appellant and the respondent are not neighbours. On the 4th ground of appeal, the learned advocate for the appellant argued that it is the requirement of the law that after exhibit has been tendered the same must be read loudly by the witness tendering it. She referred the cases of Robinson Mwanjisi & three others vs Republic [2003] TLR 218 and Bakari Ahmad @ Nakamo & another vs Republic Criminal Appeal No. 74 of 2019 Court of Appeal of Tanzania (unreported). She submitted that, exhibit D1 was neither identified nor read by the witness tendering it and such failure denied parties to understand the contents of the said exhibit. Page 5 of 15 On the 5th ground of appeal, the learned advocate submitted that the appellant has been in occupation of the suit land for more than 12 years since 2000 without any interruption from the respondent until 2023 when the respondent claimed to be the owner of the suit land. She was of the view that the appellant was protected by the legal principle of adverse possession. To buttress her argument, the learned advocate referred the case of the Registered Trustees of Holy Spirit Sisters Tanzania vs January Kamili Shayo & 136 others Civil Appeal No. 193 of 2016 Court of Appeal of Tanzania at Arusha (unreported). On the 6th ground of appeal, the learned advocate submitted that, exhibit PI was admitted while the same was neither attached to the application nor filed as additional documents. She argued that in terms of Order XIII Rule 1 of the Civil Procedure Code [Cap 33 R.E 2019], (hereinafter referred to as the CPC), documents to be relied upon are to be produced at first hearing of the suit. She therefore insisted that, exhibit PI was admitted contrary to the requirement of the law hence, be expunged from the record. The learned advocate submitted jointly on the 7th and 8th grounds of appeal that, the proceedings of the trial tribunal show that the location of the suit land is ambiguous. That, while the appellant and his witness testified Page 6 of 15 that the suit land is located at Saito Hamlet, Naberera village, Naberera ward within Simanjiro district, the respondent and his witness testified that the suit land is located at Langai Hamlet, Langai village in Langai ward within Simanjiro district. She mentioned that even the boundaries mentioned by parties were different. She faulted the trial chairperson for delivering the judgment, without being satisfied as to the location of the suit land. She was of the view that, the trial tribunal was required to visit the suit land to clear the doubt as to its location. To buttress her argument, she referred the decision of this court in the case of Mariam F. Kalengela vs Victoria Swai Land Appeal No. 290 of 2021 and Masoya Mahemba vs Nyasuma Kihanga Land Appeal No. 41 of 2021 (both unreported), in concluding, the counsel for the appellant prayed for this court to allow the appeal with costs. In reply to the 1st ground, Mr. Ndonjekwa submitted that, the evidence on record reveals that the respondent complained before the village executive officer who wrote a letter requiring the appellant to attend the matter for mediation but he never entered appearance. That, the trial tribunal's record shows that, the appellant never appeared before Langai ward tribunal for mediation and never disputed such fact in his pleading which would have called upon the trial tribunal to determine it. Page 7 of 15 On the 2nd ground, the learned advocate argued that, the respondent had heavier evidence than that of the appellant. He submitted that, the respondent tendered documentary evidence namely exhibits PI, P2 and P3 which were relevant to the subject matter. That, since the said documents were not disputed by the appellant, the respondent's evidence was heavier than that of the appellant as per sections 100 (1) and 101 of the Act. He submitted further that, it is not a number of witnesses which is required to prove the case but quality of the evidence adduced by the witnesses. He referred the case of Hemed Said vs Mohamed Mbilu [1984] TLR 133. On the 3rd ground, the learned advocate submitted that, from the trial tribunal's record, the suit land measures 50 acres as per the facts found at page 4 of the typed proceedings. He argued that, the land owned by the respondent may be more than 50 acres but according to the proceedings and judgment of the trial tribunal, the suit land is 50 acres. He insisted that, the respondent's evidence was based on the pleadings. On the 4th ground of appeal, the learned advocate submitted that, the respondent read loudly the documentary evidence after tendering it as seen at pages 5 and 6 of the typed proceedings. He therefore maintained that, the trial tribunal duly complied with the legal requirement. Page 8 of 15 On the 5th ground, the learned advocate for the respondent submitted that he has been using the suit land after being allocated the same by the village council in 2002. That, the appellant invaded the suit land in 2022 thus, the appellant's claim that he used the suit land for more than 12 years is not supported by any evidence. That, the appellant never even filed a counter claim or tendered documentary evidence to support the limitation of time. In reply to the 6th ground of appeal, the learned advocate for the respondent submitted that he was not sure if the alleged documentary exhibit was annexed to the application or not since he was engaged at the appeal stage. He however quickly pointed out that, such omission is curable under Regulation 10(1) and (2) of Land Disputes Courts (The District Land and Housing Tribunal) Regulations of 2003 (hereinafter referred to as the Regulations) which empowers the trial tribunal to receive any document which was not attached to the application at first hearing. In reply to the 7th and 8th grounds of appeal, the learned advocate referred page 4 of the typed proceedings and submitted that, the respondent mentioned the boundaries and location of the suit land. He reiterated that, the appellant did not file a counter claim against the respondent. That, had Page 9 of 15 the appellant filed a counter claim, it would have been proper for the trial tribunal to visit the locus in quo to authenticate the evidence related to the boundaries of the suit land. He submitted that, since the respondent adduced evidence to prove his claims, there was no need to visit the locus in quo. He urged this court to dismiss the appeal with costs. In rejoinder, the learned advocate for the appellant essentially reiterated her submission in chief. She added that the respondent conceded that the matter was referred to the Village Executive Officer and Ward Executive Officer who had no jurisdiction to mediate land matters. That, the allegation that the appellant did not appear cannot cure the defect that the suit was not referred to a proper authority. She added that, no certificate was tendered before the trial tribunal to prove mediation therefore, the trial tribunal had no jurisdiction to entertain the matter. She insisted that, this is a point of law which can be raised at any stage and the same was also established by evidence. Having gone through the parties' rival submission and the record of the trial tribunal, the grounds of appeal will be grouped into two issues. First, whether there was procedural irregularity, this encompasses the 1st, 4th and 6th grounds of appeal. The 2nd issue is whether the trial tribunal analyzed Page 10 of 15 the evidence on record, this covers the 2nd, 3rd, 5th, 7th and 8th grounds of appeal. Starting with the issue on procedural irregularities, the following were alleged; entertaining the suit which was not referred to the ward tribunal for mediation, failure to read exhibit after being admitted and admitting exhibit which was not annexed to the pleadings. On the argument that the trial tribunal entertained the matter which was not referred to the ward tribunal for mediation, the law is clear that the dispute must be referred to the ward land tribunal for mediation before instituting a suit before the district land and housing tribunal. Section 13 of the LDCA as amended by the Written Laws (Miscellaneous Amendment) (No. 3) Act No. 5 of 2021 provides that: - "Notwithstanding subsection (1), the District Land and Housing Tribunalshall not hear any proceedings 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 ward tribunal. " Page 11 of 15 From the above provision, the district Land and Housing and tribunal is precluded from entertaining any matter which has not been referred to the ward tribunal for mediation. The ward tribunal is bound to certify on its failure to mediate the parties. However, there is a proviso that the suit may be referred to the district land and housing tribunal without a certificate where the matter had been not mediated for a period of 30 days from its institution. So, it is mandatory that the dispute has to be instituted to the ward tribunal. That is the position of this court in different cases including the case of Mariam Haji Ali Vs. Ally Mohamed Urio and Kurusumu Haji, Land Appeal Case No. 28509 of 2023 [2024] TZHC Land D 434 at page 8 to 9 where it was held: - "From the context o f the above provision o f the law, the DLHT is required at the institution o f the suit to satisfy itself that, disputants have passed through mediation process at the Ward Tribunal as plainly required by the law. This is the vital requirement before an institution o f a land dispute before DLHT, which the parties are required to comply with. To prove that, the applicant/plaintiffis required to submit at the Tribunal the certificate from the Ward Tribunal certifying that it has failed to mediate the parties. However, the proviso provides for an exception to the general rule that, if 30 days' period lapses from the institution o f the dispute before the ward tribunal, any aggrievedparty Page 12 of 15 may institute the dispute before DLHT without the certificate from the ward tribunal." In this appeal, there are competing arguments as to whether the matter was referred for mediation before the ward tribunal or not. I have gone through the application form and found that, at paragraph 6 (vi), the respondent alleged that he made several efforts to settle the dispute including mediation before Langai ward tribunal but in vain. In his application and evidence, the respondent referred a letter from the village Executive officer which referred the dispute to the Land ward tribunal. He also referred a letter from the office of the ward executive officer which referred the dispute to the district land and housing tribunal of Simanjiro. He testified that, the appellant was called before the ward tribunal and he refused to enter appearance therefore, he was issued with a letter and he instituted the suit before the district land and housing tribunal. In his pleadings and evidence, the respondent considered the letter from the ward executive officer as certifying that the mediation was conducted and the appellant was summoned before the ward tribunal but refused to appear. The question is whether, the mediation process by the ward executive officer and his letter to that effect can be considered to Page 13 of 15 conclude that dispute was referred for mediation within the meaning of the law. Reading the said letter, I did not find if the same complied with the legal requirement as certification by the ward tribunal on mediation. I say so because, the respondent's evidence as well as the said letter suggest that the dispute was referred to the ward executive officer who also issued a letter that mediation failed. Within the meaning of section 5 of the Ward Tribunals Act, [Cap 206 R.E 2002], the ward executive officer is not among the members of the ward tribunal responsible for land dispute. In that regard, he had no mandate to call parties for mediation in land dispute or certify on mediation process. Since there was no certificate issued by the ward tribunal to show that there was an attempt to mediate the parties, the suit was incompetent before the district land and housing tribunal and the remedy is to nullify the proceedings. This is position of this court in several cases including the case of Said Omary Kitamuyo Vs. Jackson Israel Moshi and another, Land Appeal No. 13264 of 2024, [2024] TZHCLandD 838. Having found merit on the 1st ground of appeal, it disposes of the entire appeal thus, I find no reason to deliberate on the rest of the grounds. Page 14 of 15 The appeal is therefore allowed by nullifying the proceedings, judgment and decree of the trial tribunal in Land Application No.7 of 2023. Any interested part is at liberty to re-institute the matter afresh upon complying with the requirement of section 13 of the LDCA. In considering the circumstance of this case, I make no order as to costs. DATED at BABATI this 14th day of November, 2024. Page 15 of 15