Land Revision 121 of 2024 Ruling MrishaJ

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA LAND REVISION NO. 121 OF 2024 (Arising from the District Land and Housing Tribunal for Rukwa at Sumbawanga in Misc. Land Application No. 88 of2023, and originated from Ntendo Ward Tribunal in Land Case No. 12 of2023) FRANCIS MWASYEBA...................................................................APPLICANT VERSUS RICHARD AMAN MKANDALASI............................................... RESPONDENT RULING 23r October & 17th December, 2024 MRISHA, J. The applicant in this revision filed the same for the purpose of moving the court to call for and satisfy itself on the legality, propriety of proceedings and orders granted by the District Land and Housing Tribunal for Rukwa at Sumbawanga henceforth the DLHT, in Misc. Land Application No. 88 of 2023 dated 30.11.2023. The said application was filed with the court by way of Chamber Summons under section 43 (1) of the Land Disputes’ Court Act Cap 216 R.E. 2019 (the 1 LDCA) supported by the applicant’s sworn Affidavit. However, its hearing was thwarted by a Notice of Preliminary objection filed by the respondent immediately after being served with a copy of the instant application, to the effect that: “This Honourable Court lacksjurisdiction to determine this application as the applicant has not exercised available remedies of appeal or revision against the decision of Ntendo Ward Tribunal and has also not (sic) set aside the ex-parte order of the DLHT in Misc. Land Application No. 88 of 2023” It has been a rule of thumb, that whenever a preliminary objection is raised the court has to stay hearing of the application and hear the objection on merits. The logic behind is that a preliminary objection raised a point of law which if upheld/sustained, disposes of the suit and saves the time of the court and of the parties by not going into the merits of the application as the point of law disposes of the matter summarily. (See: Eusto Ntagalinda vs Tanzania Fish Process Ltd, Mza. Civil Application No. 8 of 2011 (CAT at Mwanza, unreported). The above principle of law on preliminary objections, has connection with the instant application through which the respondent has implored me to dismiss the applicant’s application with costs on the ground that the applicant has not 2 exhausted all available remedies against the decision of Ntendo Ward Tribunal and, in the alternative, applying for the order to set aside the ex parte ruling of the DLHT. Hence, the present ruling. By consent of both parties, the preliminary objection was heard by way of written submissions and, both parties filed their respective written submissions. On his side, the respondent submitted that applicant was the judgment debtor in the decision of Ntendo Ward Tribunal in Land Case No. 12/2023 in which there was a successful mediation between the litigants herein and, both parties agreed to the fact that the land in dispute belongs to the respondent, hence Miscellaneous Land Application No. 88 of 2023 in which the DLHT ordered the applicant to vacate the disputed land permanently. He also submitted that nevertheless, the hearing at the DLHT was entertained ex parte and so was the decision thereto after the applicant failed to enter appearance despite being served with a summons to appear before the DLHT. Not only that, but also it was his submission that section 45 (4) of the Written Laws (Miscellaneous Amendment) (No. 3) Act of 2021 which amended section 13 of the Land Disputes Courts Act, Cap 216 R.E. 2019, provides that: “(4) Notwithstanding subsection (1), the District Land and Housing Tribunal shall not hear any proceeding affecting the title to or any interest in land unless the ward tribunal has certified that it has failed to 3 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.” Having cited the above provision of the law, the respondent argued that the applicant herein if aggrieved by what was conducted by the Ntendo Ward Tribunal, the immediate remedy he was entitled to, was to appeal against the decision of the Ntendo Ward Tribunal within the appropriate time prescribed by the law as per section 19 of the LDCA. The respondent submitted further that the application at hand lacks merit as the records of the lower tribunals are neither tainted with illegality nor impropriety in proceedings. He was of the view that the present application is an outcome of the applicant’s reluctance by sleeping on his right to appeal against the decision of Ntendo Ward Tribunal, and fail to apply for an order to set aside the ex parte ruling of the DLHT. He took the view that the decision of the DLHT to entertain Misc. Land Application No. 88 of 2023 ex parte was as per the interpretation of Order VIII, Rule 13 of the Civil Procedure Code, Cap 33 R.E. 2019 and the case of Mendrad Okota vs Cosmas Chuwa, Civil Application No. 31 of 2022, TZHC at Morogoro. 4 On the other side, the applicant submitted that it is not true that there was mediation before Ntendo Ward Tribunal; the truth is that the said tribunal failed to settle the land dispute between him and the respondent. On that, he argued that after failure of mediation, the respondent was supposed to file the land application before the DLHT and not Misc. Land Application No. 88 of 2023. He also disputed the argument that he was served with a summons to appear before the DLHT and, proceeded to argue that the provisions of Order VIII, Rule 13 of the CPC are irrelevant to the instant application. He further, argued that even the case cited by the respondent is distinguishable to the case at hand because he had never been served with a summons to appear before the DLHT. Again, it was the applicant’s submission that he could not appeal against the decision of Ntendo Ward Tribunal or file an application for an order to set aside the ex parte ruling of the DLHT because the same originates from a null and irregular decision of Ntendo Ward Tribunal which is why he has decided to file this application so that the court can call upon the records of the lower tribunals in order to satisfy itself on the legality and propriety of their decisions. Like his counterpart, the applicant also pressed for costs in the event the preliminary objection is dismissed, as he has prayed. 5 From the above rival submissions, emerge one issue which is whether this court does not have jurisdiction to determine the instant application. Through his application as indicated in the chamber summons, the applicant has urged this court to call and satisfy itself on the legality, propriety of the proceedings and orders granted in Misc. Land Application No. 88 of 2023 by the DLHT and those of Ntendo Ward Tribunal made through Land Case No. 12 of 2023 which according to him, were made against the dictates of the law governing land matters in the country. Section 43 (1) of the LDCA provides that: "))) In addition to any other powers in that behalf conferred upon the High Court, the High Court— (a) shall exercise general powers of supervision over all District Land and Housing Tribunals and may, at any time, call for and inspect the records of such tribunal and give directions as it considers necessary in the interests of justice, and all such tribunals shall comply with such direction without undue delay...” [Emphasis supplied] My understanding of the above provision is that in addition to other powers bestowed upon it, the High Court may at any time call for and inspect the 6 records of the District Land and Housing Tribunal and give directions as it considers necessary in the interest of justice. The said provision does not provide that the High Court cannot entertain such kind of application where the applicant has not exhausted other remedies like appealing against the decision of the Ward Tribunal or apply for an order to set aside the ex parte ruling/judgment of the District Land and Housing Tribunal. This means that the present application was properly made by the applicant and, this court has jurisdiction to determine it. The foregoing reasoning suffices to determine the preliminary objection negatively. In the premise, it is my settled view that the preliminary objection raised by the respondent is in all fours, without merit and the same is bound to be dismissed with costs, as I hereby do. It is so ordered. A.A. MRISHA JUDGE 17.12.2024 DATED at SUMBAWANGA this 17th day of December, 2024. A.A. MRISHA JUDGE 17.12.2024 7