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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA MISC. LAND APPLICATION NO. 13021 OF 2024 (C/F The High Court of the United Republic of Tanzania, Arusha Sub- Registry Land Appeal No. 17 of2023 and the District Land and Housing Tribunal for Arusha at Arusha Appeal No. 65 of2022, and Olorien Ward Tribunal Complaint No. 18 of2020) JULIUS MASHARUBU ............................................... .. APPLICANT VERSUS NESERIAN EDWARD................................. RESPONDENT RULING 11th September & 15th November 2024 Masara, J The Applicant brought this Application under Section 5(1) of the Appellate Jurisdiction Act, Cap. 141 [R.E 20191 and section 47(2) of the Land Disputes Court's Act, Cap. 216 TR.E 20191 seeking for a certificate on points of law against the decision of this Court in Land Appeal No. 17 of 2023 whose decision was pronounced on 23rd May 2024. The Application is supported by the Affidavit deponed by Dr Ronilick Eli Kasambala. The Respondent, on the other hand, contested the Application through the Counter Affidavit deponed by the Respondent herself. 1|Pa ge Before this Court, the Applicant enjoyed the services of Dr Ronilick Mchami, learned advocate, while the Respondent enjoyed probono services of Ms Ekael Michael, an advocate from Tanzania Women Lawyers Association. From the record supplied to the Court, facts antecedent to this Application can be summarised as follows: Before Olorien Ward Tribunal ("the trial tribunal"), a claim for a piece of land was decided in favour of the Respondent. The Appellant challenged the said decision before the District Land and Housing Tribunal as well as before this Court in vain as the matter was consistently ruled in favour of the Respondent. Dissatisfied with the decision of this Court, the Applicant desires to appeal to the Court of Appeal of Tanzania. Since the matter originated from a Ward Tribunal, the Applicant preferred this Application seeking for a certificate on points of law as required by the law. As per the affidavit and written the submissions filed in support of the Application, the points advanced in support of the Application consist of: the jurisdiction of the ward tribunal to entertain the complaint before it; locus standi of the Respondent to sue and the wrong titling of the decision of this Court. 2 | Page Regarding jurisdiction, the Applicant claims that the name of "Baraza la Ardhi Kata ya Olorien" does not exist. Next, that even if it was a properly established Ward Tribunal, it is not one of the courts vested with jurisdiction to hear and determine land disputes as per section 3(2) of the Land Disputes Courts Act, Cap. 216 FR.E 20191. Further, that the claim at the Ward Tribunal was time barred; in that it was filed two years late since the Applicant was in possession of the suit land since 2006. Last on jurisdiction, the Applicant avers that the composition of the ward tribunal was not proper and did nbt comply with the law as specified in section 11 of the Land Disputes Courts Act, Cap. 216 FR.E 20191; that the hearing proceeded before 4-members as Opposed to 8 members. Regarding locus standi of the Respondent, the Applicant wants this Court to certify that the Respondent had no locus standi to sue the Applicant as the Respondent who claimed that the suit land belonged to her deceased husband, did not possess any letters of administration of the estate of his late husband. The third point for certification as submitted by Dr Mchami is the wrong titling of the decision of this Court. He claimed that the decision of the Court was titled it as a "Ruling" while it ought to have been titled as "Judgment" since it originated from a Land Appeal. 3 | Page Mr Mchami urged the Court to allow the Application and certify the three points above as being points of law for determination by the Court of Appeal. Contesting the Application, Ms Ekael opposed Dr Mchami's version of jurisdiction in that the Ward tribunal at the time the complaint was made had the jurisdiction to entertain it. That it was until October .2021 when the law was amended in section 3(2) of the Land Disputed Court Act, Cap. 216 to exclude ward tribunals from entertaining land disputes. Responding to the issue of locus standi, counsel for the Respondent contended that, the Respondent is the co owner of the suit land together with her late husband. That, upon the demise of her husband, she remained the sole owner of the suit land' thus she had locus standi to sue on her own without joining the administrator of the estate of her late (husband; . Regarding the wrong tittle of the decision of this Court, Counsel for the Respondent stated that the same is just a minor slip of the pen which can not nullify the facts and reasoning of this Court. She implored this Court under Article 107A(e) of the Constitution of the United Republic of Tanzania to dispense justice without being tied with technicalities. Ms Ekael urged the Court to dismiss the Application with costs. 4| Page I have dispassionately considered the rival affidavits and submissions both in support and against the Application. The issue requiring my determination is whether the Applicant has satisfied the conditions for the grant of a certificate on points of law for determination by the Court of Appeal of Tanzania. Section 47(3) of the Land Disputes Courts Act, Cap. 216TR.E. 20191 requires a person desiring to appeal to the Court of Appeal bn a matter which originates from a ward tribunal, to seek and obtain a certificate from the High Court certifying that there exists a .point or points of law worth the determination by the Court of Appeal. It is a legal requirement, also, that the High Court must be satisfied that the points presented by an applicant are real not cosmetic points of law. In Dorina N. Mkumwa vs Edwin David Hamis (Civil Appeal No. 53 of 2017) [2018] TZCA 221 (11 October 2018) the Court of Appeal held as follows: "Therefore, when the High Court receives application to certify point of law, we expect the ruling showing serious evaluation of the question whether what is proposed as a point of taw is worth to be certified to the Court of Appeal. This Court does not expect the certifying High Court to act as an uncritical conduit to allow whatsoever the intending appellant proposes as point of 5 | Pa ge law to be perfunctorily forwarded to the court as point of law. "(Emphasis added) Guided by the above prescript, I will gauge the points presented, while taking into account the points in opposition before making a determination either way. The first proposed point of law is whether the trial tribunal had jurisdiction to entertain the matter placed' before it. In this point the Applicant impugns four areas or points, of jurisdiction; namely, the name of "Baraza la Ardhi Kata ya Olorien" which he claims that it does not exist. Secondly, in the alternative, that even if "Baraza la Ardhi Kata ya Olorien" was a properly established ward tribunal, it is not one of the courts vested with jurisdiction to hear and determine land disputes as per section 3(2) of the Land Disputes Courts Act, Cap. 216 [R.E 20191. Thirdly, that the:claim at the Ward Tribunal was time barred; in that it was filed two years late and, lastly, that the composition of the ward tribunal was not proper and did not comply with the law as specified in section 11 of the Land Disputes Courts Act, Cap. 216 [R.E 20191. The guidance obtained in a number of decisions by the Court of Appeal with respect to certifying the existence of points of law is that the point sought to be certified must not have been pronounced by the Court, must go to the root of the decision, should be an issue of jurisdiction or 6 | Page where the court below misinterpreted the law. In this present Application what is raised as the first point for certification touches the jurisdiction of the trial tribunal. Whereas the first point regarding the misspelling of the name of the trial tribunal cannot, in my view, require determination by the Court of Appeal, the other points raised are crucial points as they go to the root of the impugned decision. It is therefore incumbent that, the issue of jurisdiction of the trial tribunal be certified for the attention, clarification and adjudication by the Court of Appeal of Tanzania. For clarity, the issue certified is whether the.trial tribunal had jurisdiction to determine the dispute before it.considering that: (a) the dispute was filed out of time; (b) the trial tribunal is not a body established to deal with land matters as per section 3(2) of the Land Disputes Courts Act, Cap. 216 FR.E 20191; and (c) the composition of the tribunal was less than what is provided for under section 11 of the Land Disputes Courts Act, Cap. 216 [R.E 20191. The second point raised relates to the locus standi of the Respondent to institute and prosecute a claim of land before the trial tribunal. The Applicant is of the view that the Respondent instituted a claim on her own capacity and not in the shoes of an administratrix of the estate of her late husband who owned the disputed land. On the other hand, the 7 | Page Respondent is of the view that, after the demise of her late husband, she remained the sole owner of the suit land; thus, had locus standi to institute the claim in her own names. Determination whether a party to the proceeding possess the requisite standing is a point of law. Despite the clarifications made by the Respondent against the point, this Court having made a. determination on the merits cannot withhold its consent even if it feels otherwise. I thus certify the point of locus standi as a point to be traversed before the Court of Appeal of Tanzania. Regarding the last point proposed for certificatidn; namely whether the decision of this Court ought to have read as "Judgment" not "Ruling" as it appears in the record?, I feel reluctant to certify it as it falls under the mandate of this Court in its exercise of rectification of clerical errors. As the High Court rendered its decision on a land appeal and not in a Miscellaneous land application, the Applicant is right to say that the title "Ruling" oh" the decision was wrong. The Right heading of the decision ought to have been "Judgment". That said, however, the error is excusable and can be corrected by the High Court without bogging down the Court of Appeal to deal with a non contentious issue between the parties. No wonder, the Respondent did not oppose the point. The 8 | Page wrong title of the Court's decision in the context of this Application, in my view, is a matter of fact that does not need the intervention of the Court of Appeal. The Applicant can apply to this Court for rectification of the said error that is seen on the face of the record. The rectification of the error will not in any way alter the substance of the decision already made by this Court, rather the changes will only affect the tittle. Thus, I decline to certify the same as a point for determination in the, intended appeal by the Applicant. From the foregoing, this Application is granted to the extent explained above. I hereby certify the following points for determination by the Court of Appeal in the intended appeal: a) Whether the trial tribunal hadjurisdiction to determine the dispute before --it considering that: X Z the dispute before it was filed out Of time; ii. the trial tribunal is not a body established to deal with land matters as per section 3(2} of the Land Disputes Courts Act, Cap. 216 [R.E 20191; and Hi. the composition of the tribunal was less than what is provided for under section 11 of the Land Disputes Courts Act, Cap. 216 [R.E 20191. b) Whether the Respondent herein had the requisite locus standi to institute the claim ofland at the trial tribunal. Each party to bear its own costs for this Application. 9 | Page Order accordingly. 10 | P a g e