Exavery Mbogoro v Shirini Mahungu and Another

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI LAND APPEAL NO. 13307 OF 2024 (Originating from the District Land and Housing Tribunal for Kiteto at Kibaya in Land Application No. 45 of2023} EXAVERY ZABRON MBOGORO APPELLANT VERSUS 1. SHIRINI ADAMJI MAHUNGU H RESPONDENTS 2. SELEMANI HUSEIN................................................................. J JUDGMENT 17h July and 3Cfh August, 2024 MIRINDO, J Exavery Zabron Mbogoro brought a land action against Shirini Adamji Mahungu and Selemani Husein before Kiteto District Land and Housing Tribunal. He pleaded that on 19 June 2023 he referred the land dispute for mediation to Partimbo Ward Tribunal. But the mediation never took place because Shirini 1 Adamji Mahungu and Selemani Husein either defaulted appearance or caused chaos which was reported to Kibaya Police Station. As the Partimbo Ward Tribunal never issued him with certificate of failed mediation, he brought the suit to the Kiteto Tribunal. The land action was filed before the Kiteto District Land and Housing Tribunal on 1 December 2023 which was ostensibly more than 130 days since the dispute was referred for mediation before Partimbo Ward Tribunal. In their defence before Kiteto District Land and Housing Tribunal Shirini Adamji Mahungu and Selemani Husein denied these facts. At the commencement of the hearing the trial Chairman upheld the objection that the suit was wrongly instituted before the Kiteto District and Housing Tribunal without passing through the mandatory mediation procedure in a competent ward tribunal. The Tribunal reasoned that if the mediation was not reached, Exavery Mbogoro should have attached a certificate from the Partimbo Ward Tribunal indicating such failure. From that decision, Exavery Mbogoro has come to this Court on three grounds of appeal. I granted the parties leave to argue the appeal by way of written submissions. The appellant, Exavery Mbogoro, was represented by Mr Pastor Kong'oke on this appeal and in Kiteto District Land and Housing Tribunal. Adverting to annexture SA-01 to the appellant's application before the Kiteto District Land and Housing Tribunal, the learned counsel contended that the 2 Tribunal misdirected itself in demanding a certificate of failed mediation from Partimbo Ward Tribunal. In support of this contention, the learned counsel referred to the provisions of section 45 (c) of the Written Laws (Miscellaneous Amendments) (No 3) Act No 5 of 2021 which introduced subsection (4) of section 13 of the Land Disputes Courts Act, Cap 216. The proviso to subsection (4) permits a party to institute a land dispute in a District Land and Housing Tribunal without a certificate from a Ward Tribunal because of the inability of the Ward Tribunal to settle the dispute within thirty days. Mr Kong'oke complained that the Tribunal overlooked annexure SA-01 in arriving at the decision that the land dispute was not referred to the Ward Tribunal. Shirini Adamji and Selemani Husein who are respondents in this appeal had their reply-submission to the appellant's submission prepared by the learned counsel, Ms Josephine Mnzava Paulo. In her detailed reply submission, the learned respondents' counsel supported the decision of the Tribunal and outlined several procedural defects on SA-01. In particular, the learned counsel, at pages 5-6 of the reply-submission, contends that: My Lord, it was duty of the Appellant to prove before the trial Tribunal that his application lacked certificate from Ward Tribunal, because the Tribunal failed to mediate the matter by producing a copy of letter or application used to refer the matter to the Ward Tribunal, to state the date when the matter was referred and when the date was expired [sic] and producing copy letter or any writing from Ward Tribunal stating the reasons for failure to settle dispute in 3 order to assist the Hon. Chairman of the trial Tribunal in determining the competence of the Application and not to assume the jurisdiction which he does not have. Being the case [sic] the Honourable trial Chairman was correct to strike out the application for being incompetent before the Tribunal, after the counsel for respondents had properly raised the preliminary abjection [sic] on point of laws. May the appeal be dismissed with costs. In rejoinder, Mr Kong'oke, pointed out that some of the defects referred to by the respondents' counsel have been addressed in paragraph 6(a) (iv) of the Application presented before the Kiteto District Land and Housing Tribunal. Under section 13 (4) of the Land Disputes Courts Act, Cap 216, introduced by the 2021 amendment mentioned above, a District Land and Housing Tribunal is barred from entertaining a land dispute that has not gone through the mediation process before a competent Ward Tribunal. Whether a particular land dispute before a District Land and Housing Tribunal has undergone mediation process before its institution before the Tribunal is a jurisdictional issue. For the most part, jurisdictional issues are pure questions of law and can be disposed of through preliminary objections. Also clear is the fact that not all jurisdictional issues are pure questions of law. In the leading case of Soitsambu Village Council v TBLZ Civil Appeal 105 of 2011, the Court of Appeal set aside a High Court decision that upheld a preliminary objection on a plea of res judicata. The Court of Appeal held that the preliminary objection on the plea of res judiciata could not be resolved at that stage because 4 its determination depended on exhibits. In a judgment delivered by Nsekela JA, the Court of Appeal observed that: A preliminary objection should be free from facts calling for proof or requiring evidence to be adduced for its verification. Where a court needs to investigate facts, such an issue cannot be raised as a preliminary objection on a point of law. The court must therefore insist on the adoption of the proper procedure for entertaining applications for preliminary objections. It will treat as preliminary objections only those points that are pure law, unstained by facts or evidence, especially disputed points of facts or evidence. The objector should not condescend to the affidavits or other documents accompanying the pleadings to support the objection of such as exhibits. In Olais Loth (suing as administrator of the estate of the late Loth Kalama) v Moshono Village Council, Civil Appeal 95 of 2012, the High Court dismissed the case after sustaining the following two preliminary points of objection: (i) that the respondent, Moshono Village Council, was a non-existent entity incapable of suing or being sued in its own name; (ii) the suit was barred by limitation period. The Court of Appeal concluded that the High Court misdirected itself on both points because their determination depended on issues of facts which called for production of evidence. As to the objection that the suit was time-barred, the Court of Appeal held that it could be determined on the basis of the annexure in the plaint which had not at that stage been tendered in evidence. In a judgment delivered by Juma JA, the Court of Appeal held that: 5 From the submission of the two learned counsel on whether from the bare pleadings we can conclude that the appellant is barred by limitation period, it appears to us that the question of when the 12-year limitation period began to run against the late LOTH KALAMA and his estate which includes the disputed land, still requires further proof and cannot be determined at the preliminary stage as pure point of law. We are minded to note that the third paragraph of the Plaint with its annexure "A" suggesting that limitation period begun to run from 1978 was merely noted by the respondent in the fourth paragraph of the written statement of defence. This leaves open to proof the allegation of facts contained in the third paragraph of the Plaint. This line of reasoning was followed in Ibrahim Abdallah v Selemani Hamisi (Civil Appeal 314 of 2020) [2022] TZCA 43 where the Court of Appeal overturned the finding of the High Court upholding a preliminary objection that the suit was time-barred. In the instant appeal, two questions are in dispute: (i) Did the appellant refer the land dispute to Partimbo Ward Tribunal? (ii) if the appellant referred the dispute, was the Tribunal unable to mediate the parties within 30 days so that the appellant could be entitled to institute the dispute before Kiteto District Land and Housing Tribunal without obtaining certificate from the Partimbo Ward Tribunal? The learned counsel, Ms Paulo, also represented the respondents in the Kiteto Tribunal. In support of the preliminary objection at the trial tribunal, the learned counsel attacked the application on the grounds that the appellant 6 attached only a copy of the summons without certification of mediation from the Ward Tribunal. In clarifying the absence of the Partimbo mediation certificate, Mr Kongo'ke, learned counsel, stated that according to Paragraph 6(a) (iv) of the Application the certificate has not been issued for well over six months since the appellant referred the dispute there. Mr Kong'oke concluded that the application before the Kiteto Tribunal was competent. In determining these questions, the Tribunal's Chairman held that the certificate annexed to the Application had no connection with parties before the District Land and Housing Tribunal. The certificate referred to by the Chairman was annexure SA-02. The Chairman also found as insufficient the averments in Paragraph 6 (a) (iv) of the Application. This Paragraph averred that the applicant unsuccessfully went through the mediation process in Partimbo Ward Tribunal. It is abundantly clear that these were questions of fact which could not be determined without proof. It was a misdirection on the part of the Tribunal's Chairman to determine the competency of the application by referring to the annexures. The annexures were not tendered as exhibits and for that reason could not be relied on. The fact of inability of a Ward Tribunal failing to mediate a land dispute within thirty days is generally a mixed question of fact and law which in the circumstances of this appeal could not be determined without examining 7 documentary evidence or reception of oral evidence. I should equally point out that it is not in all cases feasible to obtain a certificate indicating inability of a Ward Tribunal to mediate parties. For instance, a Ward Tribunal may have ceased to operate or , or it may refuse to issue such a certificate. Whether such certificate is feasible in a given case is a question of fact to be determined on a case-by -case basis. It is against this background that the preliminary ruling by Kiteto District Land and Housing Tribunal on the inability of Partimbo Ward Tribunal to mediate to mediate the land dispute within thirty days was arrived at prematurely. This preliminary determination constituted a material irregularity occasioning failure of justice. For these reasons, I set aside the decision of Kiteto District Land and Housing Tribunal and remit the case file for continuing with the hearing of the case on merit. As the question of inability to mediate the parties before Partimbo Ward Tribunal is at issue because it was disputed by the respondents, it is ordered that it should be framed as one of the issues framed to be determined at the end of the trial. Each party to bear its own costs. It is so ordered. DATED at BABATI this 15th day of August, 2024 8 F.M. MIRINDO JUDGE COURT: Judgment delivered in chambers this 30th day of August, 2024 in the presence of Advocate Theresia Innocent Mwenda holding brief for Advocate Pastor Kong'oke for the appellant; and in the presence of the first respondent in person, and in the absence of the second respondent. B/C William Makori (RMA) present. Right of appeal explained. F.M. MIRINDO JUDGE 9