JUDGMENT KASENGEREMA VENANCE RUHUTA VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MWANZA SUB-REGISTRY AT MWANZA LAND APPEAL NO. 31473 OF 2024 (Arising from Application No. 59 of 2023, Ukerewe District Land and Housing Tribunal before Kato C. Chairman, dated 7/11/2024) KASENGEREMA VENANCE RUHUTA ................................................ APPELLANT VERSUS BERNADETHA ALMAS .................................................................. RESPONDENT JUDGMENT 10th & 14th March, 2025 E.L. NGIGWANA, J. This appeal emanates from the decision of the District Land and Housing Tribunal (DLHT) for Ukerewe at Ukerewe in Land Application No. 59 of 2023 in which the respondent Benadetha Almas was declared a lawful owner of the house in Plot No. 51, Block Old layout-Nansio Ukerewe. To understand the background of the dispute between the parties, it suffices to revisit briefly the facts of the case. On 22.5.1976, the respondent and her late husband Venance John Ruhuta jointly purchased from Pyarali Hussein Khalfan a house in Plot No. 51, Block Old layout Nansio Ukerewe. In 1992, the transfer of ownership was done from the vendor to their joint ownership, and they were issued with a Certificate of Occupancy. 1|Page On the 11th day of March, 2021, the respondent’s husband passed away, as a result, the appellant was appointed as the administrator of the estate of the late Venance John Ruhuta. The house named above was included by the said administrator in the list of the deceased’s properties. The respondent was aggrieved by that act, hence she filed probate and Administration Cause No. 3 of 2022 before the District Court of Ukerewe to protest the inclusion of the said house in the list of the deceased’s properties. Before the District Court, the appellant conceded that the said house was jointly owned by the deceased and his wife (respondent). He further argued before the trial court that since the deceased had an interest in the said house, such interest should benefit all the heirs, thus, the said house is required to form part of the deceased’s estate. The District Court raised the issue of whether it had jurisdiction to determine ownership of the disputed house. The court invited the parties to address it on the said issue. Both parties had no legal representation. At the end, the court found that it had no jurisdiction to determine ownership of the disputed house. The court advised to forward their complaint to the 2|Page proper forum, having jurisdiction to determine the ownership of the disputed house. None of the parties appealed to the High Court against the decision of the District Court of Ukerewe, instead, they acted upon the advice given and hence knocked on the doors of the Kagera Ward Tribunal within Ukerewe District for mediation. Mediation was unsuccessful; therefore, the Ward Tribunal issued a certificate titled “Kibali cha utatuzi wa mgogoro wa nyumba shauri No. 7/2023” Thereafter, the respondent Bernadetha Almas knocked on the doors of the District Land and Housing Tribunal for Ukerewe at Ukerewe and registered Application No. 59 of 2023 praying among other things to be declared a lawful owner of the house in Plot 51 Block Old Layout Nansio Ukerewe and that, the respondent now appellant be stopped from including the said house in the list of the deceased’s properties. Upon hearing the parties, the District Land and Housing Tribunal was satisfied that the applicant, now respondent, is the lawful owner of the house in Plot No. 51 Block Old Layout Nansio Ukerewe. The DLHT further ruled out that the said house does not form part of the deceased’s properties. Finally, the applicant now respondent, was awarded costs. 3|Page The appellant was aggrieved by the decision of the DLHT, hence through the service of Mr. Innocent John Kisigiro, learned advocate, knocked on the doors of this court armed with ten (10) grounds of appeal. On the 11th day of March, 2025, when the matter came up for hearing, the appellant appeared in person and was represented by Mr. Innocent John Kisigiro, learned advocate, whereas the respondent appeared in person and was represented by Mr. Joseph John, learned advocate. However, before the commencement of the hearing, and upon successfully seeking leave of the court, Mr. Kisigiro orally raised one additional ground of appeal that reads; “That, the trial tribunal erred in law to entertain and determine the application without jurisdiction” Having raised an additional ground, he abandoned the rest of the grounds of appeal and remained with an additional ground only. Taking the floor, Mr. Kisigiro submitted that section 13 of the Land Disputes Courts Act, [Cap 216 R.E. 2019] as amended by section 45 of the Written Laws (Misc. Amendments) Act No. 3 of 2021 was offended by the DLHT because there was no valid certificate of failure to mediate the parties. He concluded his brief submission praying for the nullification of the DLHT proceedings, the 4|Page resultant judgment, decree, and orders thereto for being a nullity as the DLHT acted without being clothed with the requisite jurisdiction. On his side, Mr. Joseph John submitted that it is a legal requirement that in land matters, unless the mediation has not been finalized within 30 days, the DLHT cannot entertain and determine a matter without a valid certificate of failure of mediation from the Ward Tribunal. He went on to argue that the matter at hand was referred to the Kagera Ward Tribunal, but the Ward Tribunal did not issue a valid certificate of failure of mediation. He further explained that in the absence of a valid certificate of failure of mediation, it goes without saying that the DLHT for Ukerewe entertained and determined the matter without being clothed with the requisite jurisdiction. To buttress his submission, learned counsel referred to the decisions of this court in Desderia Lukas vs. Joseph Totinati Bulu & Another (Land Appeal No. 7 of 2023) [2023] TZHC 23902 (22 November 2023) Tanzlii, and Denis John vs George Oltimbau Leng'sia (Land Appeal No. 7227 of 2024) [2024] TZHC 10036 (14 November 2024) Tanzlii where the court insisted that the DLHT is precluded from entertaining any matter which has not been referred to the ward tribunal for mediation. Where the matter is referred to the Ward 5|Page Tribunal for mediation, the Ward Tribunal is bound to certify its failure to mediate the parties. However, there is a proviso that the suit may be referred to the district land and housing tribunal without a certificate where the matter had not been mediated within 30 days from its institution. He added that since there was no valid certificate of failure to mediate the parties on a land dispute, thus there was non-compliance with section 13(4) of the Land Disputes Civil Act [Cap. 216 R.E. 2019] as amended Act No.3 of 2021. The certificate issued bears the proceedings which shows that the Ward Tribunal mediated the parties on a probate dispute, and certified that it had no jurisdiction over probate matters. He ended his submission by urging the court to nullify the proceedings, the resultant judgment, and orders thereto for being a nullity. Having gone through the record of the trial tribunal, the ground of appeal, and upon hearing submissions from both advocates, the issue for determination is whether this appeal is meritorious. Section 13 of the Land Disputes Courts Act, [Cap 216 R.E 2016] as amended by section 45 (4) of the Written Laws (Miscellaneous Amendment) (No. 3) Act, 2021 which amends section 13 of the Land Disputes Courts Act, Cap 216 R.E 2016] provides that: - 6|Page “Notwithstanding subsection (1), the District Land and Housing Tribunal shall not hear any proceeding affecting the title to or any interest in land unless the ward the 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." (Emphasis supplied). The above provision of law makes it clear that it is mandatory for any proceedings affecting the title to or any interest in land to be referred to the mediation before being instituted in the DLHT. Indeed, it does not need an Angel to descend from Heaven to know that the above provision is couched with mandatory. When the word "shall" used in any written law, it confers mandatory adherence. See section 53 (2) of the Interpretation of Laws Act, [Cap. 1 R.E 2022], The above-cited law in its proviso gives a leeway that in case the ward tribunal fails to mediate a land dispute after the expiration of thirty days from the date the dispute was instituted, the aggrieved party may proceed to institute the land dispute without the certificate from the ward tribunal. 7|Page In the matter at hand, the land matter was referred to the Ward Tribunal for mediation, but the Ward Tribunal dealt with it as a probate matter and not a land matter. It is trite that the Ward Tribunal had no jurisdiction to entertain probate matters as those powers are vested in a probate court. The certificate issued to the parties by the Ward Tribunal shows clearly that the Ward Tribunal dealt with the matter as if what was referred before it was not a land dispute but a probate matter. The certificate carries this conclusion: “Kwa kuwa Baraza hatuna mamlaka ya kuhukumu shauri lolote linalohusiana na mirathi, tunatoa kibali kwa mdai ili alete kwenye baraza lako wasikilize na kutoa maamuzi ya kisheria”. From the above, the message is that what was referred to the Ward Tribunal was not a land matter, but a probate matter. At any rate, it cannot be said that said certificate qualified to be called a certificate of failure of mediation with the meaning of section 13 of the Land Disputes Courts Act, Cap 216 R.E 2016 as amended by Section 45(4) of the Written Laws (Miscellaneous Amendment) (No. 3) Act, 2021, and thus, as per the circumstances of the instant matter, I shake hands with both advocates that the DLHT entertained and determined Application No. 59 of 2023 without being clothed with the requisite jurisdiction. 8|Page It is trite law that, jurisdiction to adjudicate a matter is a creature of a statute and not the wishes of the parties to the proceedings nor the desires of the court or quasi-judicial body. This position has been consistently emphasized by our courts, for instance, in Shyam Thanki & Others vs. New Palace Hotel Ltd (1972) HCD 90 it was held that “All the courts in Tanzania are created by statute and their jurisdiction is purely statutory. It is an elementary principle of law that parties cannot by consent give a court jurisdiction which it does not possess." The same position was emphasized in the case of Fanuel Mantiri Ngúnda vs. Herman Mantiri Ng'unda and Two others [1995] TLR 155. Since the issue of jurisdiction is so paramount that courts must be certain and assured of their jurisdictional position before the commencement of trials and since the DLHT acted without being clothed with the same, its proceedings, the decision thereof, and any other order are nothing but a nullity. In the upshot, this appeal is allowed by nullifying the trial tribunal's proceedings, judgment, and decree in Land Application No.59 of 2023. Considering the circumstances of this case, I make no order regarding costs. It is so ordered 9|Page DATED at MWANZA this 14th day of March, 2025. E.L. NGIGWANA JUDGE 10 | P a g e Judgment delivered this 14th day of March, 2025, in the presence of Mr. Innocent Kisigiro, advocate for the appellant, Mr. Joseph John Monge an advocate for the respondent and Ms. Gladness Mnjari RMA. E. L. NGIGWANA JUDGE 14.3.2025 11 | P a g e