DIU CHIBALUA VS MARGRETH LESILWA

IN THE HIGH OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA LAND APPEAL NO 14589 of 2024 (Arising from the decision of the District Land and Housing Tribunal for Dodoma in Land Application No. 265 of 2023).

BETWEEN DIU CHIBALUA……………..………………..………..APPELLANT

VERSUS MAGRETH LESILWA…………………….…………RESPONDENT

JUDGMENT Date of the last order: 18/02/ 2025 Date of the Judgment: 25/02/ 2025 LONGOPA, J.: The appellant and respondent were parties before the Ward Tribunal for Manchali in Chamwino and the District Land and Housing Tribunal for Dodoma. The contest relates to ownership of land matter in Wilunze Village within the Chamwino District in Dodoma Region. The appellant claimed ownership of land vide grant of land as gift inter vivos from his mother while the respondent claimed that land originated from clearing a virgin land sometimes around thirty years ago. At the Ward Tribunal, the parties agreed to divide the land in dispute 1|Page equally in resolution of the dispute. However, the appellant proceeded to the District Land and Housing Tribunal for Dodoma instituting the same claim as resolved by the Ward Tribunal for Manchali whereas the District Land and Housing Tribunal on 13th May 2024 struck out the application on ground that parties had agreed and the mediation was successfully before the Ward Tribunal thus the appellant could not legally re-institute a settled matter. Being aggrieved by the decision of the District Land and Housing Tribunal for Dodoma to strike out the application, the appellant on 20 th June 2024 appealed to this Court against the whole of the order on the following grounds, namely: 1. That, the trial Tribunal erred in law and in fact when it struck out the application as it did by finding that the parties agreed to divide the suit land equally.

2. That, the trial Tribunal erred in law and fact for failure to note mediation at the Ward Tribunal for Manchali between the parties failed.

3. That, the trial Tribunal grossly erred in law and fact by not proceeding to hear the matter and decide on merits. 2|Page The parties appeared before me in person on 18th February 2025 in person each fending for oneself. It was the appellant’s submission that he truly signed the consent judgment at the Ward Tribunal of Manchali in Chamwino. However, the appellant is of the view that there was sufficient evidence on his part at the Ward Tribunal from the Village Executive Officer (VEO) proving that disputed land in question belonged to him. It was the appellant’s firm view that in the circumstances of the matter it is lucid that disputed land is the appellant’s land alone, solely belonging to him by virtue that he lived there with his mother thus the land is his own as it has been in use by his mother. This is despite that the appellant stating that he was not granted inter vivos nor that there was any administration of the estate that would warrant him to own land via inheritance. The appellant prayed that this court allow this appeal as the land in dispute is the appellant’s land thus this court should categorically declare him the owner. On the hand, the respondent reiterated that she is the owner of the land who is recognised by the Village Government of Wilunze Village in Chamwino District Council and have used the land for about nearly 30 years now. 3|Page It was the

appellant’s submitted that she cleared the virgin land some twenty-nine years ago and that appellant was only seven years old then when the respondent acquired the land in question vide clearing virgin land. It was submitted that that the decision of Ward Tribunal is valid and correct given that the respondent decided to share her land with the appellant in order to resolve the dispute amicably despite the fact that she has been in occupation and used such land without interference for all those years since she cleared the virgin land. The respondent argued that she was surprised that the appellant is still lamenting on the matter that was finally determined on agreement by the parties before the Ward Tribunal. The appellant's afterthoughts are the ones that make him continue prolonging the matter and should not permitted by this court. At this juncture, the respondent reiterated that she was very tired with litigations. The appellant and his mother have been instituting one case after the other against the respondent on the same land. They tend to create disturbances which are unnecessarily without any justifiable course. 4|Page As such, the respondent prayed for the dismissal of the appeal as it has no merits except the appellant's behaviour of clinging on matters that he has no right over the same. I have keenly followed up the submission by the parties and dispassionately

perused the available records from the District Land and Housing Tribunal as well as those of the Manchali Ward Tribunal to find out the validity of the appeal or otherwise. There are two main limbs of the appeal. First, the existence of successfully mediation or otherwise. This limb contains the first and second grounds of appeal. Second, failure to hear the matter on merits by the District Land and Housing Tribunal. This caters for the third ground of appeal. With regard to the first limb is on existence of successful mediation. It was the appellant’s ground that trial tribunal erred to find out that there was successful mediation while the mediation before Manchali Ward Tribunal failed. 5|Page To be able to address this limb, it is pertinent for this court to analyse briefly the role of the Ward Tribunal in land matters. Section 62(2)(d) of the Village Land Act, Cap 114 and section 167(1) (d) and (2) of the Land Act, Cap 113 recognise that Ward Tribunals is one of the competent courts to deal with land matters. As such, the Ward Tribunal like that of Manchali Ward which sat to mediate the parties herein had jurisdiction to entertain the matter in mediation process. In exercising such mandates, the ward tribunal’s powers are limited. It cannot exercise powers unlimited but exclusively on resolution of the disputed amicably. The role of the Ward Tribunal is categorically stated in the Ward Tribunals Act, Cap 206 as well as the Land Disputes Courts Act, Cap 216 R.E.

2019. The main role is to resolve disputes vide mediation. Essentially that is the contents of Section 8 of the Ward Tribunals Act and section 13 of the Land Disputes Courts Act. This was reiterated in the case of Zahara Mingi vs Athumani Mangapi (Civil Appeal 279 of 2020) [2023] TZCA 212 (2 May 2023) (TANZLII), at page 9, the Court of Appeal of Tanzania stated that: 6|Page Section 13 of the Land Disputes Courts Act, underscores the spirit simplicity and accessibility of Ward Tribunals, by reminding all and sundry that the primary functions of each Ward Tribunal is to secure peace and harmony, mediating between and assisting the parties to reach amicable settlements. See Yakobo Magoiga Gichere v. Peninah Yusuph, Civil Appeal No. 55 of 2017 (supra). It is on record that the Ward Tribunal of Manchali where the matter originated resolved the matter between the parties amicably. The Tribunal on 12th May 2023 did successfully mediate the parties and recorded the mediation as follows: 12/5/2023 Makubaliano ya pande zote mbili Mdai Diu Chibaula Mdaiwa Magreth Lesilwa kwa pamoja wameridhia kugawana eneo la Kiwanja hicho leo tarehe 12/05/ 2023 mbele ya Baraza. Diu Chibalua - Amesaini (Dole Gumba) Magreth Lesilwa - Amesaini (Dole Gumba). 7|Page Indeed, the Ward Tribunal for Manchali Ward reduced the terms of the settlement that parties agreed to share the disputed land equally. Recording

of the terms of the settlement was compliance with the provision of Section 14(4) of the Land Disputes Courts Act, Cap 216 which calls for the Tribunal to immediately record the order of mediation once the settlement of dispute is successfully. The Act states that: (4) The Ward Tribunal shall, immediately after settlement of a dispute record the order of mediation. Having perused the record of the Ward Tribunal of Manchali, there is conspicuously record that parties agreed to resolve the dispute by dividing the land equally. This was annexure JM 2 to the application before the District Land and Housing Tribunal. This annexure has revealed that throughout the proceedings there was nothing of the mediation failure between the parties. As the record reveals that mediation was successful, lamentation by the appellants on this limb is destitute of merits. The first and second grounds of appeal are devoid of merits thus overruled. 8|Page On the other hand, the second limb on failure of the District Land and Housing Tribunal to hear and determine the matter on merits. It is on record that the District Land and Housing Tribunal for Dodoma observed that the application was struck out as the record ward tribunal shows that the parties were mediated and agreed to divide equally the suit land thus it is not proper to file this matter while the mediation went successfully. The law provides

that jurisdiction of the District Land and Housing Tribunal is restricted where there is no certificate from the Ward Tribunal that certifies the failure by the Ward Tribunal to mediate the parties. The provision of Section 13(4) of the Land Disputes Courts Act (as amended by section 45 of the Written Laws (Miscellaneous Amendments) (No 3) Act, 2021 (Act No. 5 of 2021) explicitly states that: Notwithstanding subsection (1), the District Land and Housing Tribunal shall not hear any proceedings affecting the title or interest in land unless the ward tribunal has certified that it has failed to settle the matter amicably. 9|Page In the case of Martin Moshi Vs Benny Mbiro & Another (Land Appeal No. 11789 of 2024) [2024] TZHCLandD 710 (20 September 2024) (TANZLII), at page 6, the High Court (Hon Hemed, J.) observed that: It should be noted that the requirement to go for mediation to the ward tribunal prior to filing land dispute in the District Land and Housing Tribunal was not made as cosmetic thing or a mere formality. In fact, it was intended to encourage and enhance amicable settlement in land matters. Therefore, whenever a land dispute arises, before instituting it in the District Land and Housing Tribunal, all parties concerned must be mediated by the ward tribunal. The parties having undergone the mediation process which was successfully by the parties agreeing to share the

land equally in order to live in harmony and peaceful, it would be inappropriate for the appellant to institute a matter on the same matter. There was no need for the District Land and Housing Tribunal to hear the matter on merits given that the same had been finally determined by agreement of the parties amicably before the ward tribunal. 10 | P a g e Furthermore, this court has noted that principles of natural justice were fully observed, namely on the right to be heard in particular was categorically observed as well as the right to reasons for the decision. Having adjourned the matter for few instances on 13th May 2024, the Tribunal called the parties to address the Tribunal on appropriateness of the application before it. It is pertinent to reproduce the same: Date: 13.05.2024 Coram: Hon J.F. Kanyerinyeri, Chairman Assessors: E. Kabohola and J Magembe Applicant: Present in person Respondent: Present in person T/C: N Karoli Tribunal: I have come to note that the parties mediated at the Ward Tribunal and mediation went successfully thus let invite the parties to address if it is proper to file this matter. SGD J.F. Kanyerinyeri Chairman 13.05. 2024 11 | P a g e Applicant: I leave the matter to the Tribunal to decide. SGD J.F. Kanyerinyeri Chairman 13.05. 2024 Respondent: It is not correct as we have agreed at the ward tribunal. SGD J.F. Kanyerinyeri Chairman 13.05.

2024 Order: This application has been struck out as the record of the Ward Tribunal shows that the parties mediated and agreed to divide equally the suit land thus it is not proper to file this matter while mediation went successfully. SGD J.F. Kanyerinyeri Chairman 13.05. 2024 12 | P a g e It is settled law in this jurisdiction that the right to be heard as part of principles of natural justice is fundamental. A decision however correct it is without adhering to principles of natural justice is vitiated. For instance, in Y.P. Investment Co. Limited vs Philbert Mahenda and Another (Civil Appeal No. 231 of 2024) [2025] TZCA 55 (21 February 2025) (TANZLII), at pages 12-13, the Court of Appeal of Tanzania reiterated that: Time and again courts have emphasized that, the right to be heard is a fundamental principle of natural justice which should be observed in the administration of justice. Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977 provides: "When the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or other agency concerned." We are firmly of the view that, a denial of the right to be heard in any administration of justice vitiates the entire proceedings and ultimately makes it

nullity. 13 | P a g e Similar position was taken by the Court of Appeal in the case of CRDB Bank Plc v Registered Trustees of Kagera Farmers Trust, Kagera Cooperative Union (1990) Limited and Tanzania Coffee Board (Civil Appeal 496 of 2021) [2024] TZCA 94 (23 February 2024) (TANZLII), at pages 11-12, where the Court of Appeal stated that: It is trite law that any decision affecting rights or interests of any person which is arrived at without such person being afforded a right to be heard, is a nullity even if the same decision would have been arrived at had the affected party been heard. As the trial Tribunal afforded the right to be heard to the parties prior to striking out of the application on ground that the same had been mediated successfully before a ward tribunal, the appellant cannot be heard complaining that the matter was not properly dealt with to the merits of the case. 14 | P a g e It was the appellant who when called to address the court stated that he leaves it in the trial tribunal to decide on the validity of the application. Simply, the appellant never disputed that there was successful mediation before the ward tribunal between the parties. By deciding to leave it to the tribunal to decide in law meant nothing that not disputing the truth of existence of successful mediation that resolved the dispute finally and conclusively between the parties. Given that

there was a decision on mediation between the parties from Manchali Ward Tribunal dated 12th May 2023, the appellant could only be allowed to challenge such decision on limited grounds. The appellant would have chance to make application for setting aside the consent order if the grounds to vitiate consent includes fraud, mistake, total failure of consideration, misrepresentation, coercion, undue influence and other grounds in equity. As in the case of Arusha Planters Traders Ltd Others vs Euro African Bank T Ltd (Civil Appeal 78 of 2001) 2007 TZCA 154 (28 December 2007) (TANZLII), at page 11, the Court reiterated that: 15 | P a g e A consent decree can be set aside on any ground which would invalidate an agreement, such as misrepresentation, fraud or mistake. The appellant did not show any fraud, misrepresentation or mistake done during consent order entered at Ward tribunal. After all he agreed that there where consent order at the ward tribunal of Manchali. On the other hand, the trial tribunal’s Chairperson stated explicitly that reasons for the striking out of the is the fact that the matter was mediated successfully by the ward tribunal thus it was not palatable to entertain an application on the same matter before the District Land and Housing Tribunal. The right to reason for decision has been recognised to be one of the fundamental aspects of natural justice principles

and makes the judgment valid. In the case of M/S St. Anthony Secondary School vs Lukumburu Investment C. Ltd (Civil Revision 388/16 of 2022) [2024] TZCA 123 (23 February 2024) (TANZLII), at page 13, where the Court of Appeal of Tanzania elucidated that: 16 | P a g e It is observed that the strength of any decision lies on its reasoning. Reason is the soul and spirit of good judicial decision without which there cannot be a valid decision. It is on that aspect that I am in concurrence with the decision arrived at by the District Land and Housing Tribunal that the Ward Tribunal for Manchali resolved the dispute amicably by agreement of the parties. The second limb of the grounds of appeal lacks merits too. It is hereby overruled. In totality of the events, this appeal lacks merits and deserved dismissal for being preferred without any merits. It is dismissed in its entirety. No orders as to costs. DATED at DODOMA this 25th day of February 2025 E.E. LONGOPA

JUDGE 25/02/2025. 17 | P a g e