Mgonya Appeal Ruling 1

1|Page IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA LAND APPEAL NO. 15941 OF 2024 (Arising from the decision of Land Appeal No. 25/2021 in the District Land and Housing Tribunal for Geita at Geita) ELIFACE MGONYA .....................……………………………………..APPELLANT VERSUS FAUSTINE MADEBELE (Administrator of the estate of the late Maendeleo Bwana)………………….……………………..…….RESPONDENT RULING Date of last order: 19/8/2024 Date of Ruling: 28/8/2024 MWAKAPEJE, J.: The appellant herein, who was the respondent in the first appeal before the District Land and Housing Tribunal of Geita, is now before this Court challenging the decision in Land Appeal No. 25 of 2021 rendered on 25/08/2023, which ruled in favour of the respondent. Before delving into the merits of the appeal, it is essential to grasp the brief facts leading to this appeal: between 2014 and 2015, an agreement was reached for the Appellant to acquire land from the Respondent for the sum of Tshs. 4,000,000.00. The Appellant made an initial payment of Tshs. 3,200,000.00, with the outstanding Tshs. 800,000.00 to be settled by 28/02/2015. However, the Appellant failed to 2|Page fulfil this obligation, prompting the respondent to pursue the unpaid amount through the Ward Tribunal. The Ward Tribunal ruled in favour of the herein appellant, ordering him to settle the remaining amount and confirming that the respondent indeed sold to the appellant a parcel measuring 113x91 paces, contrary to the 30x40 paces the former claimed. Displeased with this outcome, the respondent appealed to the District Land and Housing Tribunal, which ultimately sided with him, affirming his rightful ownership of the property due to the Appellant's breach of the agreement. Additionally, the Tribunal directed the reimbursement of the initial payment of Tshs. 3,200,000.00 to the Appellant. Unhappy with this decision, the appellant sought and was granted an extension of time to file the present appeal. His appeal had the following eight grounds of appeal. 1. That the District Land and Housing Tribunal misdirected in law and facts by deciding in favour of the respondent without tendering any document pertaining to the occupation of the said land. 2. That the District Land and Housing Tribunal misdirected itself in law and fact by deciding in favour of the respondent without considering the main case by introducing a new issue which was not among the grounds for the respondent. 3. That the District Land and Housing Tribunal misdirected itself in law and fact without considering the weight of the evidence of the appellant and his witnesses in the trial Tribunal. 3|Page 4. That the District Land and Housing Tribunal misdirected itself, in fact, by ordering the reimbursement of Tsh 3,200,000/= to the appellant without considering the decision of the trial Tribunal of payment of the remaining balance of Tsh 800,000/= which the appellant was willing to pay. 5. That the District Land and Housing Tribunal misdirected itself in law and fact by favouring one side and exhibiting direct interest to the respondent without considering the basis of the case. 6. That the District Land and Housing Tribunal misdirected itself in law and fact by deciding in favour of the respondent while knowingly that it failed to address the legal shortcomings on the respondent’s part. 7. That the District Land and Housing Tribunal misdirected itself in law and fact by deciding in favour of the respondent on the oral deceptions without any documentary proof or any other. 8. That the District Land and Housing Tribunal misdirected itself in law and fact by deciding in favour of the respondent without considering that the respondent demonstrated contractual weaknesses, which came to its attention but proceeded with the said decision. At the hearing, the appellant appeared pro se while Mr Siwale Yisambi, learned advocate, represented the respondent. The appellant was the first person to submit support for the appeal. On the first ground, he contended that the respondent failed to present any corroborative documentary evidence to support his assertion. In bolstering his stance, he referenced the case of Deogratius Bakinahe and 2 Others vs Shirika la Usafiri Dar es Salaam and Another (Misc. Labour Application No. 361 of 2020) [2020] TZHCLD 305, on pages 6-7. 4|Page For the second ground, he posited that the issue of contract breach, which served as the crux of the decision, was not initially raised by the respondent; rather, it was introduced by the DLHT, thereby depriving the involved parties of the opportunity to address it. He argued that this contravenes the precedent set in the case of Alisum Properties Limited vs Salum Selenda Msangi (Civil Appeal No. 39 of 2018) [2022] TZCA 389. Moving on to the third ground, he contended that the DLHT dismissed the documentary evidence indicating that the sold parcel of land measured 113x91 paces. Nonetheless, the decision was based on the same evidence that had been earlier rejected. He contended that a proper analysis of the evidence by the DLHT would have revealed discrepancies, leading to a different outcome free from bias. On the fourth ground, he argued that confusion arose regarding the land size due to the advancements he had made on the land in question and the delays in payment of the remaining purchase price caused by the respondent's alterations to the agreement terms. The DLHT erroneously ordered a refund of the advanced amount, whereas he maintained that the trial Tribunal correctly ruled that he should pay the outstanding balance to the respondent. He reinforced his argument by citing the case 5|Page of Esther Kimbulu and Others vs Piganio Mwita (Civil Appeal No. 484 of 2020) [2024] TZCA 314, which established that payment delays do not nullify contracts. The fifth ground saw the appellant contend that the appeal process before the DLHT was unreasonably delayed for over a year without justification and that the introduction of the breach of contract issue post- hearing led to a biased decision favouring the respondent. Regarding the sixth ground, the appellant argued that the DLHT failed to consider the evidence presented by both parties. He questioned why, if the contract copy he submitted as evidence was flawed and rejected, it was still utilised in the case's determination. The appellant jointly argued the seventh and eighth grounds, emphasising that during the hearing period, the respondent sold a land plot measuring 30x40 paces, a fact confirmed by the DLHT during a site visit. Yet, the decision was made against the appellant on unsubstantiated claims. He maintained that the original agreement was for a land size of 113x91 paces, which was arbitrarily altered to 30x40 paces without proper validation. The appellant concluded by praying that his appeal be allowed and that he be instructed to pay the outstanding contract price, a payment he was prepared to make. 6|Page Responding to the submissions by the appellant, Mr Siwale contended that the evidence had been thoroughly assessed. The DLHT determined that the respondent was the rightful owner of the land, having sold it to the appellant for the sum of Tshs 4,000,000. Therefore, it was deemed unnecessary to furnish documentary proof of the respondent's ownership. Mr Siwale pointed out to the court that the case referenced by the appellant was distinguishable, as it pertained to a labour dispute where the appellant had not been served with an order mandating the submission of evidence, unlike the present case, which revolves around a land dispute. Regarding the second point raised, the counsel informed the court that the evaluation of evidence had been brought up before the DLHT as the second ground of appeal. The DLHT ultimately noted that the trial tribunal failed to analyse the evidence adequately. It was further emphasised that the sales contract had been acknowledged and found to have been breached. The DLHT deliberated on the issue, considering the consequences of non-performance due to the strained relationship between the appellant and the respondent. Moving on to the third contention, the counsel argued that the DLHT had meticulously scrutinised the evidence, particularly on page 7 of the 7|Page judgment, and concluded that the appellant had violated the contract's terms. On the fourth point, the respondent's argument centred on the extended period from 2015 to 2021, deemed excessively long for the appellant to fulfil the contractual obligations. Additionally, the presence of other individuals who had already acquired portions of the disputed land further complicated matters. Therefore, it was asserted that demanding the remaining balance of Tshs 800,000, as initially agreed, would be unjust. A comparison was drawn to the case of Esther (supra), where the party had only failed to make a single instalment payment, contrasting with the appellant's continuous non-compliance over six years and the presence of other occupants in the contested area. Regarding the fifth ground, Mr Siwale contended that the decision reached had followed a comprehensive analysis of the presented evidence. Even during the DLHT's visit to the locus in quo, conflicting accounts of the boundaries were provided by both parties, with the actual measurements yielding 37x37 paces. The counsel for the respondent highlighted the unauthorised nature of the appellant's developments, contrary to the Tribunal's directives, thus warranting no consideration. 8|Page In addressing the sixth point, the counsel argued that while the contract may have been perceived as weak, the agreed-upon terms were not disregarded. The presence of the contract facilitated the dispensation of justice and overlooked minor discrepancies within it. It was further emphasised that any errors that arose did not result in injustice to either party. On the conjoined seventh and eighth grounds, Mr Siwale submitted that the DLHT's judgment on page 8 demonstrated a meticulous analysis of the evidence. It was concluded that certain deficiencies in the contract's execution did not nullify the terms agreed upon by both parties. He, therefore, prayed for the appeal to be dismissed with costs. In the rejoinder, the appellant did not provide anything significant apart from his submission in chief, which appears to be repetitions. Before delving into the grounds of appeal, I would like to commend the parties, particularly the appellant, for their diligent research and valuable contributions, which significantly aided the court in reaching an informed decision. In considering the current appeal, I was inclined to review the proceedings of the Ward Tribunal to determine what transpired, mainly focusing on the pecuniary jurisdiction of the trial tribunal. The 9|Page circumstances of the case necessitated a thorough examination of the compliance with the law in this aspect, as the pecuniary jurisdiction raised questions regarding my understanding of such matters. This court, therefore, deemed it necessary to invite the parties involved in this appeal to address the appropriateness of the case before the Ward Tribunal, particularly regarding the issue of pecuniary jurisdiction. The appellant was the first to make a statement, albeit without significant relevance to the pecuniary jurisdiction of the trial Tribunal. He only mentioned that the Ward Tribunal had jurisdiction over the matter before amendments were enacted. He concluded by asserting that the trial tribunal rendered its decision wisely by considering the circumstances of the case. Mr Siwale contended that at the outset, he held the belief that the trial tribunal lacked pecuniary jurisdiction. However, he now holds a divergent view, citing the absence of a valuation report regarding the disputed land. These considerations arose subsequent to his persuasion by the ruling in Venance Benedict Minde vs Musa Ally Lwayo and two Others (Land Case No. 26 of 2022) [2023] TZHC 19968. Having heard the submissions of the parties, I wish to begin by emphasising the paramount importance of jurisdiction for any court or 10 | P a g e judicial body when considering a matter. Jurisdiction is the very foundation of the law, without which neither the parties nor the courts or tribunals can assume authority. In the event that a Court or Tribunal decides on a matter beyond its rightful powers, such decisions are deemed null and void from the outset. What this court did is not uncommon in our jurisdiction when a significant error is identified in the proceedings of the lower courts. In the case of B.9532, Cpl. Edward Malima vs Republic, Criminal Appeal No 15 of 1989 (unreported), it was stated that: “Firstly, we are satisfied that it is elementary law that an appellate court is duty bound to take judicial notice of matters of law relevant to the case even if such matters are not raised in the notice of appeal or the memorandum of appeal. This is so because such court is a court of law and not a court of parties.” [Emphasis supplied] In the present appeal, the late Maendeleo Bwana brought two claims before the trial tribunal for determination. Firstly, the complainant sought restitution of the outstanding sum of Tshs 800,000 from the then respondent, Elface Mgonya, who now stands as the appellant. Secondly, the said Bwana raised grievances regarding the trespass committed by the appellant herein on his three parcels of land. 11 | P a g e The trial tribunal directed the appellant to remit the sum of Tshs 800,000 to the complainant and ruled that the three parcels of land alleged by the complainant to have been encroached upon were, in fact, rightfully owned by him and formed part of the land he purchased from the complainant. Following the pronouncement of the trial tribunal’s judgement, the complainant, feeling discontented, lodged appeal number 25 of 2021 at the District Land and Housing Tribunal on three grounds of appeal; the first ground is hereby reproduced below; That the trial tribunal erred in law and fact by deciding in favour of the respondent without considering the pecuniary jurisdiction. In resolving this ground, the learned Chairman held that the ground lacks merit, and in justifying, he had this to say; “...wakili wa mleta rufaa alisema kwamba thamani ya eneo la mgogoro ni Tshs 4,000,000/= lakini hakuna uthibitisho uliotolewa kuthibitisha thamani ya eneo la mgogoro na hivyo naona sababu hiyo inakosa mashiko na ukizingatia kwamba yeye ndiye aliyepeleka mgogoro huu katika baraza la kata. Baraza hili linaamini kuwa alipeleka mgogoro huo akijua kuwa Baraza la Kata lina uwezo wa kifedha wa kusikiliza shauri lake.” [Emphasis supplied] In essence, the appellate tribunal suggests that the valuation report and the party involved in a dispute who brings the matter to the tribunal for resolution determine the value of the disputed land. To me, this line of reasoning appears to lack depth, and the Court should explicitly 12 | P a g e distance itself from such a perspective. I assert this because it would imply that it is the litigants who ultimately dictate and confer jurisdiction upon courts or tribunals. See the case of B. Cpl. Edward Malima vs Republic (supra). Also, in the cases of Shyam Thanki & Others vs New Palace Hotel [1971]1EA 199 and Sospeter Kahindi vs Mbeshi Mashini (Civil Appeal No. 56 of 2017) [2018] TZCA 223, it has been held that parties cannot confer jurisdiction to a court that has no jurisdiction. Specifically, in the case of Sospeter Kahindi vs Mbeshi Mashini, it was stated that: “We would also stress that parties cannot confer jurisdiction to a court or tribunal that lacks that jurisdiction.” [Emphasis supplied]. From the aforementioned perspective, it is essential to note that the individual who lodged the land dispute, as the appellant, cannot preside over the tribunal or grant it authority beyond its legal mandate. It appears that the counsel for the respondent may have misunderstood this concept. In this particular scenario, both parties involved are fully aware of the precise price of the disputed land and do not contest it in any manner. A valuation report is typically necessitated when there is a disagreement or uncertainty regarding the land's value, which is not the case here. The case of Venance Benedict Minde (supra) cited by Mr Siwale is distinguishable as the plaintiff alone disclosed the price without the defendant's knowledge of the subject matter's value. 13 | P a g e Now, the pecuniary jurisdiction of the Ward Tribunal is well provided for under section 15 of the Land Dispute Courts Act, Cap 216 R.E 2019, as follows; “15. Notwithstanding the provisions of section 10 of the Ward Tribunals Act, the jurisdiction of the Tribunal shall in all proceedings of a civil nature relating to land be limited to the disputed land or property valued at three million shillings.” [emphasis supplied] From the above provision of the law, the jurisdiction of the Ward Tribunal in resolving land disputes is confined to parcels of land valued at Tshs. 3,000,000 or less. In the present appeal, the land in question holds a value of Tshs. 4,000,000. Contrary to the assertion made by the Appellate Tribunal and the respondent’s counsel, this fact does not necessitate the submission of a valuation report. The value of the land had already been ascertained by the involved parties as the purchase price, which neither party had contested during the proceedings. Therefore, the aforementioned elucidates that the trial tribunal lacked jurisdiction to preside over the case, as the contested parcel of land possessed a value of Tshs. 4,000,000, surpassing the trial tribunal's pecuniary jurisdiction. Hence, this court cannot proceed with the determination of the appeal on its merits. This solitary fact alone is adequate to dispose of the appeal in its entirety. 14 | P a g e Consequently, I hereby wield the powers endowed upon this Court by section 43 (1) (b) of the Land Disputes Courts Act, Cap. 216 and proceed to annul and invalidate the proceedings and judgments of both the trial and appellate tribunals in their entirety. Furthermore, I proceed to order the maintenance of the status quo, as it existed before the matter was referred to the trial tribunal. Should any party deem that they have a cause of action against another, they are advised to pursue their rights in a proper forum. I make no orders as to costs. It is so ordered. DATED at GEITA this 28th day of August 2024. G.V. MWAKAPEJE JUDGE This Ruling is delivered this 28th day of August 2024 in the presence of the Appellant in person and Mr Yisambi Siwale, learned advocate for the Respondent. G.V. MWAKAPEJE JUDGE