joachim mwalongo vs steven lunyungu 2016 tzhc 2319 28 april 2016

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT IRINGA MISCELLANEOUS LAND CASE APPEAL NO. 17 OF 2013 (From the Decision of the District Land and Housing Tribunal of Njombe in Land Case Appeal No. 76 of 2011 and Original Ward Tribunal of Njombe / Urban Ward in Application No. 68 of 2009) JOACHIM MWALONGO - ..................................APPELLANT

VERSUS STEVEN LUNYUNGU..................................RESPONDENT 25/02/2016 & 28 /04/2016

JUDGMENT KIHWELO, J . The applicant JOACHIM MWALONGO has moved this court by way of appeal having being dissatisfied by the decision of the District Land and Housing Tribunal of Njombe in Land Appeal No. 76 of 2011 Hon. G. Kairuki dated 20th June, 2013. The appeal was supported by a Petition of Appeal which had two grounds that can be crystalised as follows:- 1. That the chairperson o f the appellate tribunal grossly erred in holding that by not subm itting on the grounds o f appeal the appellant had abandoned those grounds o f appeal.

2. The appellate tribunal confused between constitution o f the Ward Tribunal when exercising the mediation role with that o f adjudicating. The background to this matter briefly is that the respondent filed a complaint before the Njombe Urban Ward Tribunal against the appellant claiming among other things utensils and clothes worth TShs. 3,000,000/- as well as objecting the sale of the suit land. The appellant on the other hand denied to all the respondent's claims. The trial tribunal upon listening to all the parties and their witnesses and following the visit of the locus in quo on 30th November, 2011 the trial tribunal in Land Case No. 68 of 2009 decided the matter in favour of the respondent. Aggrieved by the decision of the trial tribunal the appellant on 27in December, 2011 filed an appeal before the appellate tribunal challenging the decision of the trial tribunal. The appeal was supported by three grounds of appeal. By consent of the parties the matter proceeded by way of written submission and in his written submission the appellant opted to abandon the grounds of appeal and instead raised and argued a separate issue which centered on the composition of the ward tribunal. The appellate tribunal carefully considered the rival submissions and on 26th June, 2013 pronounced judgment to the effect that the appeal had no merit and consequently dismissed it with costs. It is

on the strength of the above that the appellant came before this court hence the present appeal. Before this court as at the appellate tribunal below, the appellant had the services of Mr. Frank Ngafumika, learned counsel while the respondent had the services of Mr. John Owegi, learned counsel. t* Upon the consent of the parties the appeal was disposed by way of written submissions which were dully filed by the parties as scheduled by the court. In support of the appeal the appellant's counsel faulted the decision of the appellate tribunal on two fronts. In the first place he argued that holding that failure to submit on the original grounds amounted to abandoning them was a misconception since among those grounds one of them went to the root of the jurisdiction of the appellate tribunal. He strenuously submitted that on 28th December, 2009 when the respondent lodged the complaint before the trial tribunal made it clear that the suit house was valued TShs. 7,000,000/- which is well beyond the jurisdiction of the trial tribunal and that the appellate tribunal ought to have found that the trial tribunal had no jurisdiction to entertain the matter. He went on to submit further that since the issue of jurisdiction can be raised at any time it was incumbent upon the appellate tribunal to entertain it even if the same was not argued by the appellant. To buttress his line of argument

he cited the celebrated case of Tanzania China Friendship Textile Ltd V Our Lady of Usambara Sisters [2006] TLR 70. He invited this court to d that the trial tribunal had no jurisdiction to entertain the matter in the first place. In further support of the appeal the appellant's counsel strongly contended that a close scrutiny of the court records reveals that the proceedings were marred with irregularities in that on 8th March, 2010, 12th March, 2010, 4th June, 2010 and many more other dates the proceedings does not clearly or at all indicate the coram hence making it practically difficult to establish whether the composition of the trial tribunal was in line with the dictates of the law. He further firmly argued that the proper composition for adjudication by the trial tribunal is governed by Section 11 and not Section 14 of the Land Disputes Courts Act, Cap 216 RE 2002. Mr. Ngafumika prayed upon the honourable court that given the irregularities of the proceedings before the trial tribunal and the misdirections by the appellate tribunal the appeal should be allowed and the decisions of the lower tribunals should be set aside with the resulting orders. In response the respondent's counsel spiritedly argued that the counsel for the appellant designedly opted to abandon the original three grounds of appeal and instead raised the issue of coram which was not a subject of appeal.

According to Mr. Owegi, the learned counsel for the respondent this argument did not persuade the appellate tribunal which eventually found out that the appeal had no merit. Mr. Owegi strongly went ahead to submit that the composition of the ward tribunal in the instant case was settled by the case of Nahodha Mpaka V Agatha Zombe, Land Appeal No. 1 of 2015, High Court of Tanzania at Songea (unreported) and the case of Julius S. Mshai V Daudi Mlumba, Miscellaneous Land Appeal No. 11 of 2008, High Court of Tanzania at Dodoma (unreported). The rule in both the above cases with regard to composition of the ward tribunal is regulated by Section 11 of the Land Disputes Courts Act, Cap 216 which requires the composition to be three members and one of whom shall be a woman. As regards to the missing coram on the dates mentioned the learned counsel was of the view that there is no any provision of the law which requires as a matter of law coram to be written in the manner the learned counsel for the appellant demands. According to him failure to do so does not occasion any injustice on the part of the appellant. Arguing in response to the question of jurisdiction Mr. Owegi spiritedly submitted that there was uncertainity surrounding the value of the disputed house since the same witness who stated the value to be TShs. 7,000,000/- he also testified that the suit premise was sold for

TShs. 1,500,000/- as such he thought that the trial tribunal rightly adjudicated the case before it. In appreciating the principle of uncertainity of the suit amount he cited the case of Mikoani Traders Limited V Engineering & Distributors Limited, Commercial Case No. 49 of 2006, High Court of Tanzania, Commercial Division (unreported). He finally prayed that the appeal be quashed in its entirety and judgment and orders of the two tribunals below be upheld with costs. I have carefully followed the arguments of the learned counsel and in my considered opinion there remains only one issue for my consideration and that is none other than whether or not the instant appeal before me is meritorious. Gauging from the submissions by the learned counsel and a thorough discerning of the court records I find some considerable merit on the respondent's argument that the chairperson of the appellate tribunal was right in confining herself to be issue which the appellant's counsel elected to address the court and leave aside the grounds which were abandoned by the appellant himself. It is often suggested and widely believed that the court has to confine itself to the issues properly before it and nothing more. This seems to me obviously right and sensible as the court has to decide upon the matter which parties had an opportunity to address it. This is in line with the dictates of rules of

natural justice which is one of the bedrock of the constitutional principle under the right to be heard. However, the appellant has raised a very pertinent issue of jurisdiction which as I said the chairperson of the appellate tribunal rightly ignored assuming that it did not catch her eye but the position of the law is settled and clear that a question of jurisdiction may be taken at any stage of the proceedings even at an appellate stage. This is the position which was religiously stated in the case of Tanzania — China Friendship Textile (supra). There is an array of legal authorities to the effect that before an appeal is determined on merits on issues not touching jurisdiction of the court below the appellate court must satisfy itself that the proceedings giving rise to the appeal were completely before that court or those courts. > See Tanzania Revenue Authority V Kotia Co. Ltd, Civil Appeal No. 12 of 2009 (unreported). It is on the basis of the above that I proceed to examine the issue of jurisdiction. It is on record that the respondent alleged before the trial tribunal that the suit house is valued at TShs. 7,000,000/-. It is to be noted that the jurisdiction of the ward tribunal is governed by Section 15 of the Land ( Disputes Courts) Act, Cap 216 RE 2002 which reads; '75. Notwithstanding the provisions o f Section 10 o f the Ward Tribunal Act, 1985, the Jurisdiction o

f the Tribunal shall in a ll proceedings o f a civil nature relating to land be lim ited to the disputed land or property valued a t three m illion shillings" Going by the above position of the law the trial tribunal was not right to entertain the dispute having been told that the value of the suit property was TShs. 7,000,000/-. I have painstakingly scrutinized the cited case of Mikoani Traders Limited and with due respect I don't find it to be in fours since in the instant matter there is only one value of the property in dispute which was alleged by the respondent the other one is a mere alleged sale price hence the issue of uncertainity of the value does not arise. I will now examine the issue of the composition of the ward tribunal. Mr. Ngafumika has alleged that the trial tribunal was not properly composed and even the records speak for themselves and he referred to some few dates to drive the point home. Mr. Owegi on his part argued that the composition of the trial tribunal was proper according to Section 14 of 10 the Land (Courts Disputes) Act, Cap 216 RE 2002 and alluded that indicating corum on each date is not backed by any provision of law. I must stress that I find considerable merit on the submission by Mr. Ngafumika, learned counsel for the appellant in that the provision of Section 14 is very categorical as it reads; "14 (1) The tribunal shall in a ll m atters

o f m ediation consists o f three members a t least one o f whom sh all be a woman " In my view the above provision is very clear in that it applies to mediation procedure as clearly stipulated in the marginal notes. Furthermore if the legislature intended that composition to apply to the ward tribunal whenever it conducts its business then the word mediation would not have been included there. Finally I wish to stress that time and again this court has emphasized that the requirement to indicate the coram of members at every seating of the tribunal is not only desirable but a necessity. This will enable one to ascertain with precision whether the tribunal had the requisite composition of members as required by law. This position was stated in the case of Julius S. Mshai V Daudi Mlumba (supra) and my own unreported decisions in Elizabeth Nindi V Mama li Sambage, Miscellaeneous Land Case No. 13 of 2008 and Leonard Malenda V Jumanne Malenda, Miscellaneous Land Case Appeal No. 16 of 2011. In the final result, this appeal has merit and it is hereby allowed. The judgment of the trial tribunal is hereby declared to be a nullity. Since the decision of the appellate tribunal arose from a nullity proceeding the same is declared to be a nullity and is hereby set aside. The respondent is adviced if he wishes to lodge the application before the appropriate forum. Because the error was done by the two lower tribunals each party to bear his own costs. 28/04/2016