FROLA PROSPER MALLYA VS NMB BANK 3 OTHERS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MWANZA SUB REGISTRY) AT MWANZA LAND APPEAL NO 14644 OF 2024 (Arising from Land Application No. 89 of 2018 at the District Land and Housing Tribunal for Mwanza dated on 8th May, 2024, Hon. Lekamoi; Chairman) BETWEEN FROLA PROSPER MALLYA @ FROLA MALLYA........... APPELLANT VERSUS 1. NMB BANK PLC 2. NSOMBO & CO. LTD .................... RESPONDENT 3. PROSPER JOSEPH MALLYA 4. HEMED HAMAD —J JUDGEMENT 2nd & 2nd August, 2024 A. MATUMA, J. In the District Court and Housing Tribunal for Mwanza, the appellant sued the respondents claiming that her house situated at squatter no. 015/123 at Msumbiji area-Nyasaka within Mwanza City was wrongly sold by the 1st and 2nd Respondents to the 4th Respondent purporting that it was mortgaged for the loan of Tshs. 20,000,000/= advanced by the 1st Respondent to the 3rd Respondent. On 18/05/2022 the trial tribunal framed three issues for determination. The issues are; 1. Whether the applicant (now the appellant) mortgaged her house for the loan advanced by the 1st Respondent to the 3rd Respondent. 2. If the first issue is answered in the affirmative, whether the 3rd Respondent defaulted to repay the loan in time. 3. To what reliefs) are the parties entitled. The suit was instituted in the trial tribunal on 20th March, 2018 but dillydallied thereat for five good years for no apparent reasonable grounds. At the hearing of this appeal Mr. Godfrey Martin Basasingohe learned advocate who represented the appellant stated that despite the fact that the suit is reflecting to have been filed in 2018 it originally started in the tribunal in 2015. It was later withdrawn with leave to refile and that is why it reads 2018. Therefore after such five years after the refiling and or eight years of its origin, it is when the evidence of the first witness of the prosecution case started to be recordedzdn the 18th May, 2022. Again, for unwarranted adjournments, the evidence of that witness to date which is almost two years and three months has not yet been whole recorded in the meaning that PW1 who is the appellant herein has not finished to give her evidence. On 8th May, 2024, the Hon. Chairman of the trial District Land and Housing Tribunal suo motto raised an issue relating to jurisdiction of the tribunal in adjudicating the suit without there having been a certificate from the Ward Tribunal to the effect that the parties were mediated in accordance to the amendment of section 13 (4) of the Land Disputes Courts Act by Misc. Amendment Act no. 3 of 2021. The tribunal invited the parties to address on the issue and both of them stood on one side that the trial tribunal had the requisite jurisdiction because the amendment did not affect this case which was already filed to the tribunal and pending prior to such amendment. Nevertheless, the trial chairman ruled out that it cannot proceed with the matter unless the parties are mediated by the ward tribunal and issued certificate to that effect. It thus directed the parties to go back to the ward tribunal for mediation within thirty days. It did not however rule out about the evidence of PW1 which was already partly recorded nor it dismissed or 3 struck out the suit. It fixed it for mention in two months later on 10/07/2024. It is upon such historical background, the appellant became aggrieved hence this appeal on a sole ground of appeal stating that; 1. The trial tribunal erred in law for ordering the suit to start afresh by referring it to the Ward tribunal for obtaining the certificate for mediation following the changes of the law and the holding in the case of Hassan Ahmed Kasuku versus Ramadhani Yahya despite the fact that the case was at the finalization of the applicant's prosecution case. At the hearing of this appeal, the appellant was present in person and represented by Mr. Godfrey Mjuni Martin Basasingohe learned advocate whereas the 1st and 2nd Respondents were represented by Mr. Iche Mwakila learned advocate. The 3rd and 4th Respondents were absent without notice and I thus ordered the appeal to proceed in their absence. Addressing for this appeal Mr. Basasingohe learned advocated submitted that as a general rule an Act should not be given retrospective effect unless there is a clear indication either from the subject matter or from the wordings of an Act of Parliament. To that effect he cited the case of S.S. Makorongo versus Severino Consigilio, Civil Appeal no, 6 of 2003 (CAT). He argued that giving retrospective effect to the said amendment affected the substantive rights of his client because her suit was already pending in court and taken a significant step whereas the prosecution case was about to be closed. To that effect he cited the case of Joseph Khenani versus Nkasi District Council, Civil Appeal no. 126 of 2019. The learned advocate also sailed this court to various provisions of the Interpretation of Laws Act as to when exactly an act of Parliament should start to be operative. On his part Mr. Iche Mwakila learned advocate opposing this appeal submitted that District Land and Housing Tribunal properly reached to the impugned decision because it was guided by the High Court decision in Hassan Ahmed Kasuku versus Ramadhani Yahya, Land Appeal no. 72 of 2023 which interpreted the amendment at issue in Act no. 3 of 2021. He argued that the substantive right of the parties has not been affected and therefore this appeal be dismissed. He did not press for costs. In his brief rejoinder advocate Basasingohe insisted that even the case of Hassan Ahmed Kasuku stated that procedural amendment may not take a retrospective effect if there are grounds given and in this case the Appellant advanced several grounds why retrospective effect should have 5 not been given to the instant case including the time spent in the tribunal and the step this case had reached. Having heard the parties for and against this appeal It is my turn now to resolve the ground of appeal as to whether the trial District Land and Housing Tribunal had no jurisdiction to adjudicate this suit for lack of certificate of mediation from the ward tribunal following the amendment of section 13(4) of the Land Disputes Courts Act, Cap. 216 vide Misc. Amendment Act no. 3 of 2021. Prior to Misc. Amendment Act no. 3 of 2021 both Ward tribunals and District Land and Housing Tribunals had original jurisdiction relating to adjudication of land matters. Through such amendment under section 45(4) District Land and Housing Tribunals were restricted to adjudicate land matters unless the parties have passed through the Ward tribunal for mediation and a certificate to that effect is issued. For better comprehending the matter, I find it better to quote the relevant provision of the amendment which resulted into the current appeal. The provision reads; "Notwithstanding subsection, the District Land and Housing Tribunal shall not hear any proceeding affecting the title to or interest in 6 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 the ward tribunal." It is from that provision the mind of the learned chairman considered that since the amendment was a procedural one, it acted retrospectively in accordance to the decision of this court in the case of Hassan Ahmed Kasuku versus Ramadhani Yahya supra. He thus ruled that the parties should go back to the ward tribunal for mediation and obtain certificate to that effect. Although at the tribunal as reflected above both parties were of the view that the trial chairman erred to have reached to such decision, at this appeal the 1st and 2nd Respondent changed their mind and joined the trial chairman in its decision. On my part I agree with Mr. Godfrey Basasingohe learned advocate for the appellant that the amendment supra in the circumstances of this case was wrongly interpreted by the trial chairman. I will tell why. First of all, the amendment as it can be read out related to land matters tending to affect tittle or interest in land. It has nothing to do when the title or interest in land is not at issue. Had the Parliament intended that all disputes relating to land must go to Ward Tribunals for mediation before they are referred to District Land and Housing Tribunal it could have not specified the kinds of disputes in the amendment. As we are all aware, there are a lot of kinds of dispute relating to land. Title or interest in land are just among of those disputes. Now, at the trial tribunal in this case, the tribunal was not moved to adjudicate as to who had the better title in land or who had interest in the suit land. Before it there was no dispute that the appellant herein was the owner of the suit land and nobody other than her had claimed interest in such property. The dispute was only whether the appellant mortgaged such property to the 1st Respondent for the loan advanced to the 3rd Respondent. That is why the issues drawn as reflected supra did not touch title or interest in the property but whether its owner now the appellant had mortgaged it, whether the 3rd Respondent defaulted repayment of the loan and to what reliefs are the parties entitled to. / 8 The provision of the law as quoted supra did not confer Ward Tribunals jurisdiction to mediate parties on mortgage issues. Had the trial tribunal properly directed its mind to the proper interpretation of the provision it could not have reached to such decision. But even if mortgage issues are taken to have been covered by such amendment as well, the law is settled that it is not always necessary that procedural amendment must act retrospectively as rightly argued by Mr. Godfrey Martin Basasingohe. In certain cases, and on certain circumstances courts of law may not give retrospective effect to the new procedural amended law. Retrospective effect may as well not be given to the new law if even if it is a procedural amendment, it affects substantive rights of the parties. That was well discussed and determined in the case of Mary Martin (Administratrix of the estate of the late Teiesia Maiimi) versus Sesiiia Martin, land Appeal no. 8215 of 2024, HC at Mwanza. In that case this court held that; '"Procedural amendment does not apply retrospectively in all cases and at all circumstances. Upon certain circumstances in certain cases the courts of law may not give retrospective effect to the procedural amendment of a certain law". To backup such stance this court quoted the decision of the court of appeal in the case of Felix H. Mosha and Another versus Exim Bank Tanzania Limited, Civil Reference no. 12 of 2017 in which it was held; 'We are mindful of the position of the law that when an amendment of the law affects a procedural step or matter only, it acts retrospectively unless good reason to the contrary is shown" The same position was stated in the case of The Director of Public Prosecutions versus Jackson Sifaei Mtares & three others, Criminal Appeal no. 2 of 2018 w\ which the court of appeal held; "Normally, it may not be made to apply retrospectively where the said legislation affects the substantive rights of the potential victims of the new law. On the other hand, however, if it affects procedure only, prima facie it operates retrospectively unless there is good reasons to the contrary " On the strength of the high court decision and the two quoted decisions of the Court of Appeal supra, the court may do away with retrospective effect of a procedural amendment when there is good reasons to that effect or when the substantive rights of the parties are affected. In the instant matter as rightly submitted by the learned counsel for the appellant, there are a lot of reasons on record why retrospective effect to the amendment at hand should have not been given to this case. I find that giving retrospective effect of such amendment in the instant matter would be prejudicial to substantive rights of both parties because; One, at the time of such amendment this suit was already been pending in the tribunal for almost seven years in exclusion of the period between 2015 to 2018 prior to the withdraw as reflected supra. At all this time this suit had already taken a significant step whereas there was a lot of preliminary issues resolved, some oral evidence recorded and some documentary evidence under a stiff legal battle admitted. It would not be the interest of justice to drag back the parties who have already spent more than seven years in court for them to start at point zero. Two, the matter involves a financial institution the 1st Respondent so to speak. In that respect, it follows within matters that should be fast trucked. Three, sections 3A (1) (2), B(l) (a) (e ) of the Civil Procedure Code as amended by section 6 of the written laws (Miscellaneous Amendments) Act No. 8 of 2018 introduced the overriding objective within which courts of law are required to interpret any enaqted law for the purposes of i facilitating the just, expeditious, proportionate and affordable resolutions of all matters governed by law. Applying such overriding objective, I don't find any interest of justice for the parties to have been ordered to go to the ward tribunal for mediation as ordered and directed by the trial chairman as by doing so it would be against the overriding objective of section 13(4) of Cap. 216 as amended supra in which it was not intended to cause delays of substantive rights of the parties whose suits were already pending in court more so for the cases which had already taken significant steps like the instant one. I Not only that but it would be against the provisions of article 107 A (2) (b) (e) of the constitution of the United Republic of Tanzania which requires dispensation of justice without undue delay and avoidance of technicalities which might be prejudicial to the substantive rights of the parties. The same provides; "Katika kutoa uamuzi wa mashauri ya madai na jinai kwa kuzingatia sheria, mahakama zitafuata kanuni zifuatazo, yaani - (a), kutochelewesha haki bila sababu za msingi. 12 (e). kutenda haki bila kufungwa kupita kiasi na masharti ya kiufundi yanayoweza kukwamisha haki kutendeka." From such article of the Grundnorm, I find that pushing the parties to the ward tribunal in the circumstances of this matter as reflected supra would serve no any useful purpose rather than continuation of the delay of the substantive rights of the parties which has not been obtained by them for more than seven years. In that respect, I find that this appeal has been brought with sufficient cause and accordingly allow it without costs. That being the case the findings of the trial chairman are quashed and the order thereof which directed the parties to start the matter at the ward tribunal is hereby set aside. I direct that the records be remitted back to the trial tribunal to have the matter adjudicated from whether it had ended prior to the impugned order. I further direct that this suit should be fast trucked and determined within the shortest possible period. I further direct the learned advocates for both parties to properly maintain their respective diaries to have this suit soon determined because I have taken note from the proceedings that thi&case undergone fifty-three (53) adjournments out of which almost twenty adjournments were because of the absence of advocates for various reasons including that they were attending to other courts. I remind them and the trial chairman to the decision in the case of Cooperative and Rural Development Bank versus FUton (Tanzania) LTD, (1993) TLR 284 which held that the purpose for which paragraph (c) of the proviso to Rule 1(2) of Order 17 of the Civil Procedure Code was intended was to prohibit advocates using 14