JOSEPH JILALA HUKUMU

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SHINYANGA SUB REGISTRY

AT SHINYANGA LAND APPEAL NO. 202406101000013613 (Arising from the decision in Misc. Land Application No.52 of 2022, the same arise from Land Application No.1 of 2016 before Sola Ward Land Tribunal) JOSEPH JILALA MAYILA .......................................... APPLICANT

VERSUS JUMA SALUMU .................................................1ST RESPONDENT KASHINJE GIBE …………………………….……….2ND RESPONDENT

JUDGMENT 15th July & 30th August 2024 F.H. MAHIMBALI, J The appellant in the late 2016 had sued the respondents before Sola ward tribunal claiming for his parcel of land. The trial ward tribunal after a thorough finding, entered its decision in favour of the appellant. Right 1 to appeal was fully explained to any aggrieved party. None opted for that recourse. Surprisingly, in the year 2023, the respondents filed an application for revision before the DLHT claiming among others that the ward tribunal when adjudicating the matter had no jurisdiction to do so. The DLHT in consideration of the application granted the prayers sought and ruled that the ward tribunal had no jurisdiction to try the matter after its powers were ceased, and thus the proceedings and decision so reached were quashed and set aside and the interested party was advised to file a fresh suit before a competent court. The appellant is not amused with that decision; he has appealed to this Court on three grounds namely; 1. That, the District Land and Housing Tribunal for Maswa erred in law and facts for nullifying the proceedings and decision of Sola ward tribunal in land case No 10 of 2016 on the ground that, the said Sola ward Tribunal had no jurisdiction to entertain the matter while the said ward tribunal had powers to entertain and determine the same.

2. That, the District Land and Housing Tribunal for Maswa erred in law and facts for making the decision contrary to the prayers sought in chamber summons and the provisions of the law invoked thereof. 2 3. That, the District Land and Housing Tribunal for Maswa erred in law and facts for holding that the 1st respondent (now the appellant) did not object the Misc. Land application lodged by the 1st respondent (who was the applicant) while in fact the appellant vide his counter affidavit objected hence arriving at erroneous decision. During the hearing of appeal, both parties appeared in person and unrepresented. But before going into detail of the appeal, I wish to address the preliminary objection raised by the 1st respondent. It was objected and presented that the suit is bad in law for joining the 1st respondent who was not a party to a main suit at the trial tribunal. I have scanned the lower tribunals’ decisions, perhaps the preliminary objection by the 1st respondent is misplaced. The appellant is aggrieved by the decision of the DLHT of which the 1st respondent was a party to it being an applicant and the decision was entered on his favor. Mindful, such ruling was a result of revision filed by the 1st respondent; thus, he cannot deny the inclusion of his name in the instant appeal. Since the appeal is against the ruling on revision filed by the 1st respondent, I hold

without hesitation that he is properly joined. Therefore, the preliminary objection should not detain me much; I hereby dismiss in its totality. 3 Back to the appeal at hand, the appellant arguing for his appeal prayed for his grounds of appeal be adopted by the court to form part of his submission. He also added that, he objected the application at DLHT he wonders that it was recorded that he had not objected which is not true. Resisting the appeal, the 1st Respondent also prayed for his reply to the grounds of appeal be adopted by the Court to form part of his submission. The 2nd Respondent on the other hand submitted that, the DLHT was right in reaching that decision of nullifying the proceedings and decision of the trial tribunal as per application made. Secondly, the DLHT made its decision basing on the prayers in the chamber summons, so, what is alleged by the appellant is not true. Thirdly, there is no any counter affidavit filed by the appellant against that application. So, this appeal is devoid of any merit, and it stands to be dismissed, he prayed and concluded. Resting his submission by way of rejoinder, the appellant maintained his submission in chief. He however prayed for this Court to have a good moment of scrutinizing and rule accordingly as per law. 4 Having heard both parties on merit, I have now to determine this appeal and the issue for deliberation is

whether this appeal has been brought with sufficient cause. The appellant had complained for the DLHT to nullify the decision of Sola ward tribunal which had entered its verdict in favour of the appellant in 2016 and no appeal was preferred against that decision but surprisingly, upon application for revision by the 1st respondent in 2023 the DLHT quashed the ward tribunal’s decision on the grounds that it had no jurisdiction following the amendment of Land laws which ceased powers to the ward tribunals. Clearly, before the amendment of the Land Disputes Courts Act, Cap 216 RE 2019 brought by Written Law (Miscellaneous Amendment) Act No.3 of 2021, which came into operation on 28th September 2021, the Ward Land Tribunal used to dispense justice by delivering its decision basing on merit and evidence of the case. Later, the situation changed following the amendment brought by the enactment of the Written Laws (Miscellaneous Amendment) Act (supra). Now, does the enactment of the Written Law (Miscellaneous Amendment) Act (supra) nullify the whole proceedings and decision prior reached by the Ward Tribunal? 5 In my formed view, the Written Law (Miscellaneous Amendment) (supra) came in operation prospectively and not retrospectively. I think it was not the intension of the legislature that all the decisions so reached by the ward tribunals were affected by that enactment but it was

the comprehensive legislation from the date of entry into force. In so holding, the DLHT in the case at hand mistakenly opened a pandora box to a case which was already decided many years ago. Allowing this practice could lead to a reopening of many concluded cases on ground of this position of a new legislation which ceased powers of the ward tribunal. That was an erroneous position reached by the DLHT. I hold without hesitation that the impugned decision is tainted with illegalities. See the cases of Lyamuya Construction Company Ltd vs Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No.2 of 2010, and Principal Secretary Ministry of Defence and national Service vs. Devram Valambia (1992) TLR 185. On the grief that the DLHT erred to enter its verdict contrary to prayers thought in chamber summons by the 1st respondent, scanning the trial tribunal’s records, the 1st respondent in his application pleased the DLHT to exercise its power of revision, by calling the lower records of the tribunal and satisfy itself as to its correctness as seemed to founded on 6 illegality. The DLHT after had revised the lower tribunal decision nullified such decision and issued directives to be complied by the parties. Scanning to the prayers sought in chamber summons by the 1st respondent, I do not agree with the appellant as the DLHT was

in compliance with the reliefs claimed by the 1st respondent. Thus, the learned chairman entered its decision based on prayers sought on the chamber summons and not otherwise. I am aware that parties are bound by their pleading as elucidated in the cases of Aspetro Investment Company Limited vs Jawinga Company Limited, Civil Appeal No.8/2015, Peter Ng'omango vs The Attorney General, Civil Appeal No. 214 of 2011 as well as James Funga Gwagilo vs The Attorney General [2004] TLR 161. But in the instant appeal the complained argument is misplaced and thus the referred case laws are inapplicable. Hence this ground is devoid of any merit. Apparently, the third ground of appeal is answered affirmatively, the honorable chairman, erred to rule out that the appellant did not object the application for revision. The records provide that the appellant filed counter affidavit to resist the application. The trial chairman erred when recorded that the appellant and his colleague admitted the application 7 thus proceeded to pronounce its decision. The noted fault is the failure of the learned chairman not to properly scrutinize the records on his finding that the appellant does not object the application taking the instance that the resisting persons were two but the language used joined all of them to have so stated so. That was not correct. I must therefore, conclude that this appeal is merited and consequently allowed, the DLHT decision is quashed and set aside and the decision of the ward tribunal is upheld. With the circumstances of the case, I make no orders as to costs. Right to further appeal is explained. It so ordered. DATED at SHINYANGA this 30th day of August, 2024. F.H. Mahimbali Judge 8