gift kauzeni another vs mathias kauzeni 2023 tzhc 22048 25 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA MISC. LAND APPEAL NO. 11 OF 2022 (From the decision of the District Land and Housing Tribunal for Rukwa at Sumbawanga in Land Appeal No. 33 of 2021, original Land Case No. 3 of 2021 at Nkandasi Ward Tribunal) GIFT KAUZENI.................................................... 1st APPELLANT ROGATHA KAUZENI......... .......................... ...... ...................... ^APPELLANT

VERSUS MATHIAS KAUZENI................... .RESPONDENT 11/10/2023 &. 25/10/2023

JUDGMENT MWENEMPAZI, J. The appeal arises from the judgment and decree of the District Land and Housing Tribunal (DLHT) of Rukwa in Land Appeal No. 33 of 2021 where the appellants unsuccessfully appealed against the decision of Nkandasi Ward Tribunal in Land Case No. 8 Of 2021. The Respondent, who is the biological father of the appellants, filed a suit against the appellants claiming for eighteen acres of land whereby he was claiming eight (8) acres against the 1st appellant and ten (10) acres against the 2nd appellant. The appellants Page 1 of 8 were not entering appearance and therefore the hearing and decision was made ex-parte as against them. The record of this case shows that shows in the judgment of the Ward Tribunal of Nkandasi that the appellants were refusing to enter appearance, even after being summoned five times; thus, in July, 2021 the Ward Tribunal '’■ip', decided to proceed ex parte against them. It is recorded: < "Shaun hili iitasikiiizwa upande mmoja wa Mdai kwa sababu Wadaiwa wameitwa shaurini mara tano hawajahudhuria biia sababu yoyote ya msingi" T. "C... Thus, the appeal to the District Land and Housing Tribunal was against an ex-parte judgment by the Ward Tribunal. In this appeal, the appellants have knocked the doors to this Court armed with eleven (11) grounds of appeal touching various issues including jurisdiction of the trial tribunal and evaluation

of evidence. However, I find one ground to carry the decision effect to the present appeal. That is ground number three that: Page 2 of 8 "The case at trial tribunal at Nkandasi Ward was heard ex parte hence the trial chairperson did not order retrial inter parties hence reached at unjust decision T In my opinion the question as to whether the Ward Tribunal has powers to hear and determine cases ex parte is vital to this appeal as it can effectively dispose the case at hand. NK A At the request of the parties, this appeal was ordered to proceed with hearing by way of written submission. It is unfortunate that only the appellants filed their written submission and the respondent did not file any. As to the question whether, the Ward Tribunal has power to clear and determine dispute ex parte; the appellant have submitted that the primary function of the Ward Tribunal is mediation to settle matters amicably in order to enhance peace and harmony. That is according to section 13 of the Land Disputes Courts Act, [Cap 216 R.E 2019]. That cannot be achieved by one party to the dispute and that mediation cannot be conducted in the absence of the other party. The reason provided by the Ward Tribunal in the proceedings when hearing the matter ex-parte was not genuine and they did not state what law or regulation gives them power to hear the case ex-parte. Page 3 of 8 The Ward Tribunal

deviated from its primary function. They cited the case of Petro Bira Cheto Versus Hima Hudu Ubaya, Misc. Land Appeal No. 47 of 2020, High Court of Tanzania at Dodoma (Tanzilii) where it was held: "in this case, the Ward Tribunal decision which was passed ex-parte indeed contravened and conflicted with the rules of natural justice and the Ward Tribunal has. exceeded its jurisdiction, and so such proceedings should have been revised. '■'■t. The appellants argued that due to this reason it justifies that the learned chairperson was supposed to order retrial ipter-parties and not to rule in favour of the respondent. As I said, earlier the respondent did not file written submission. Therefore, this court has did not have the contribution on the point from the respondent. First of all, the Ward Tribunals are established under section 3 of the Ward Tribunal Act, Cap. 206 R.E.

2019. The provision provides that: Page 4 of 8 " There is hereby established a tribunal for every ward in Tanzania to be known as the Ward Tribunal for the ward for which it is established" However, the jurisdiction of the Ward Tribunal is statutory. Section 8 of the Act provides t Prior to 11th October, 2021, the Ward Tribunals had power/jurisdiction "ft? enquire into and determine disputes arising under the Land Act and the Village Land Act". With the amendment introduced by the Written Laws (Miscellaneous Amendment) Act No. 5 of. 2021 the power of Ward Tribunal to hear and decide land disputes was removed. Now, the jurisdiction of the Ward Tribunal is restricted to the primary‘..function to secure peace and harmony in the area, for which it is established by mediating between and assisting parties to arrive at a mutually acceptable solution on any matter concerning land within its jurisdiction (Ref. section 13(1) of Land Disputes Court Act, [Cap 216 R.E 2019 as amended]. Thus, after the amendment, the District Land and Housing Tribunal are not allowed to hear and decide land disputes unless the Ward Tribunal has attempted to settle the dispute amicably and failed, and it has issued a certificate that mediation has been attempted but it failed. There is no Page 5 of 8 mention of the power of the Ward Tribunal to determine a dispute ex parte in the Act. In the case of Petro

Bira Cheto Versus Hima Hudu Ubaya (supra) Mansoor Judge held that: "Peace and harmony cannot be secured if only one party is afforded a chance of hearing, also mediation cannot be conducted in the absence of the other parties to a dispute and this is why the Ward Tribunals were hot given jurisdiction to adjudicate and hear the case ex parte in the absence of the other party". '■■ In the case just referred the Honorable trial judge cited the provisions of sections 13(2) of the Ward Tribunals Act, [Cap 206 R.E 2019] and observed that: "T. "If the respondent does not appear before the Ward Tribunal when the case is set for hearing, the Ward Tribunal is not vested with jurisdiction to hear and determine the case in the absence of the respondent...", Under the circumstances, the law is silent on the powers to proceed ex parte which means that the Ward Tribunal has no power and or jurisdiction to Page 6 of 8 proceed with an ex-parte hearing where the respondent is absent, under the circumstances the only remedy where the matter proceeded ex-parte in the Ward Tribunal is to nullify the proceedings of the Ward Tribunal. Hence, the District Land and Housing Tribunal worked at 1st appellate level on an unfounded case rendering its decision and proceedings a nullity. For the reasons I therefore proceed to quash judgment of both lower tribunals and also nullify the proceedings. In the event, the appeal is allowed as explained. Parties, if they wish, may commence fresh proceedings subject to prescribed law as it currently stands. No order as to costs. It is ordered accordingly. Dated and delivered at Sumbawanga this 25th day of October, 2023. T.M. MWENEMPAZI

JUDGE Judgment delivered in the chamber in the presence of appellants and respondent.