KURUTHUM ALLY KIBEHERE AND OTHERS VS MATHUAS BONIVENTURE MWANDIKO AND ANOTHER land appeal no

IN THE HIGH COURT OF TANZANIA (MOROGORO SUB - REGISTRY) AT IJC MOROGORO LAND APPEAL NO. 23689 OF 2024 (Originating from the decision of the District Land and Housing Tribunal of Morogoro at Morogoro in Land Application No. 160 of 2019 delivered by Hon. M. Khasim, Chairman on 31st July 2024) KURUTHUM ALLY KIBEHERE………...............…….…..1ST APPELLANT ABDALLAH KIBEHERE……………………………..………2ND APPELLANT HADIJA ALLY KIBEHERE………………………….………3RD APPELLANT AMINA ALLY KIBEHERE……………………..……………4TH APPELLANT VERSUS MATHIAS BONIVENTURE MWANDIKO….…….……1ST RESPONDENT SALUM MAPUYA………….…………………….………..2ND RESPONDENT JUDGEMENT 22 nd of November 2024. MANSOOR, J. The first appellant, KURUTHUM ALLY KIBEHERE, instituted Land Case No. 25 of 2017 against the first respondent, MATHIAS BONIVENTURE MWANDIKO, at the Lukobe Ward Tribunal, claiming ownership of eight (8) acres parcel of land located at Kambitano, Lukobe Ward, Morogoro Municipality (hereinafter referred to as “the disputed land”). After hearing Page 1 of 10 the case on its merits, the Lukobe Ward Tribunal adjudicated in favor of the first respondent, declaring him the lawful owner of the disputed land. Dissatisfied with the decision, the first appellant filed an appeal to the District Land and Housing Tribunal for Morogoro (hereinafter referred to as “the first appellate tribunal”) against the first respondent. Upon concluding the hearing of the appeal, the first appellate tribunal nullified the proceedings, quashed the decision, and set aside the orders of the Lukobe Ward Tribunal due to the non-joinder of the second respondent, Salum Mapuya, as a necessary party. The First Appellate Tribunal also ordered a trial de novo before itself. In compliance to the foregoing order, the appellants lodged Application No. 160 of 2019 against the respondents before the Tribunal, pertaining to the same disputed land that involved the 1st appellant and the 1st respondent before the Lukobe Ward Tribunal. After hearing the parties, the Tribunal again ruled in favor of the 1st respondent, declaring him the rightful owner of the disputed land. Consequently, the application was dismissed with costs. The appellants were not happy with the decision of the first appellate Tribunal hence this appeal fronting the following two grounds; Page 2 of 10 1. That, the honorable District Land and Housing Tribunal erred in law and facts for failure to evaluate the evidence tendered by the appellant at the trial tribunal to make its own findings and draw its conclusion that evidence of the appellant was heavier than that of the respondent. 2. That, the honorable District Land and Housing Tribunal erred in law by its failure to critically analyze, asses and evaluate the evidence brought before it and hence forth came up with a wrong decision rendering miscarriage of justice to the appellant. On the date this appeal was placed before me for hearing both parties appeared personally and unrepresented. The hearing of the appeal was done orally. However, for reasons to be apparent soon, I shall not reproduce the submissions of the parties herein. In the course of composing this judgment, I reviewed the lower tribunal records to ensure the propriety of the appeal before me. My perusal of the tribunal's records revealed a serious irregularity committed by the First Appellate Tribunal regarding the issued order for trial denovo before itself. I feel duty-bound to determine the propriety or otherwise of such order as it impacts the validity of the appeal at hand since the impugned judgment stems from the order. Page 3 of 10 To begin with, I find it prudent to shed a little light on the term 'trial de novo.' A trial de novo means a new trial on the entire case, covering both questions of fact and issues of law, as if there had been no trial in the first instance. An order for a trial de novo must be issued by the superior court or tribunal in the hierarchy, and this order intends on making the rectification on the decision passed by the subordinate court, body, or tribunal due to procedural irregularities (See the case of Jackson Clemence Swenya vs Republic (Criminal Appeal No. 47 of 2022) [2022] TZHC 13791 (6 October 2022). It is also common practice that when ordering a trial de novo, the superior court must order the nullified matter to be retried from the beginning by the subordinate court. With the above fundamental legal position in mind, it is clear that the purpose of ordering a trial de novo is to grant the subordinate court with jurisdiction to retry the case and correct the procedural errors committed during the original trial. Certainly, a trial de novo is conducted in response to the original trial being deemed invalid or inconclusive. Page 4 of 10 Reverting to the case at hand, the First Trial Tribunal, upon determining Land Appeal No. 99 of 2017, observed procedural irregularities committed by the Lukobe Ward Tribunal. In allowing the errors to be rectified, the trial chairman, instead of ordering the matter to be tried de novo by the Lukobe Ward Tribunal, its subordinates, ordered the matter to be retried by itself. For purpose of clarity I will quote the findings made by the First Appellate Tribunal; “Both wise assessors who sat with me (Mrs. Jane Mngazija and Leornard Njovu) were of the similar opinion that let the committed errors by the Trial Tribunal be rectified by hearing the matter Denovo before this Tribunal…. I consequently partly allow this appeal as follows -The proceedings of the Trial Tribunal and decision thereof are hereby quashed and set aside respectively -Let the matter be heard denovo before this Tribunal…” That was a serious irregularity on part of the First Appellate Tribunal. Generally, superior courts do not retry matters previously handled by subordinate courts with a view of correcting procedural irregularities. Instead, they do revision of the proceedings to identify any gross irregularities that might have led to an injustice and if such irregularities are Page 5 of 10 found, the superior court may intervene, but typically not by retrial, rather by directing the subordinate court to correct the procedural errors. See section 36(1) of the Land Dispute Courts Act, Cap 216, R.E 2022 which stipulates; “A District Land and Housing Tribunal may call for and examine the record of any proceedings of the Ward Tribunal for the purpose of satisfying itself as to whether in such proceedings the Tribunal's decision has- (a) not contravened any Act of Parliament, or subsidiary legislation; or (b) not conflicted with the rules of natural justice; and whether the Tribunal has been properly constituted or has exceeded its jurisdiction, and may revise any such proceedings.” In the circumstances of this case in which the tribunal sat as the appellate court, the proper provision that the tribunal ought to have invoked is section 35 (1) of the same Act which provides that; 35.-(1) A District Land and Housing Tribunal hearing an appeal may- (a) confirm the decision; (b) reverse, or vary in any manner the decision; (c) quash any proceedings; or (d) order the matter to be dealt with again by the Ward Tribunal, and may, if it deems appropriate, give an order or Page 6 of 10 direction as to how any defect in the earlier decision may be rectified. (2) The District Land and Housing Tribunal shall immediately after making the decision on appeal, record the decision and the reasons thereof.” Emphasis Added Going through the above provision, it is quite clear that a trial de novo (a new trial) was within the domain of the Lukobe ward tribunal, and not the District Land and Housing Tribunal. The First Appellate Tribunal improperly conferred jurisdiction to itself to retry the matter and barred the Lukobe Ward Tribunal from correcting the committed procedural errors, contrary to the spirit of the principle of trial de novo. As it appears, the order was not regular. In addition to that, in the circumstances of this case failure to join Salumu Mapuya, the second respondent was not fatal on two limbs, one since the matter was on the private land rights the 1st appellant was not sanctioned to join the person who sold to the 1st respondent the land in dispute. In this am inclined with the obiter dicta in the case of Tanzania Railways Corporation (TRC) vs Gbp T. Ltd (Civil Appeal No. 218 of 2020) published in www.tanzlii.org as [2021] TZCA 198 where the Court of Appeal observed that: Page 7 of 10 "That is correct and indeed, a plaintiff has that unfettered prerogative and freedom not to join a party it does not feel like joining." Two, since Salum Mapuya neither had interest in the suit land nor claims anything in the suit land, thus, failure to join him hindered nothing to a complete determination of ownership. More so, upon the scrutiny of the available records it is clear to me that none of his interest could have been affected even if the suit would have been decided in favor of either party to the suit. By analogy, the subsequent proceedings before the Tribunal and the judgment in Land Application No. 160 of 2019 having emanated from irregular order are also a nullity since it is settled law that where a decision is reached without jurisdiction by any court, such decision is a nullity. In the case of Ramadhani Omary Mtiula vs The Republic, Criminal Appeal No. 62 of 2019 (unreported) when referring to the decision in Fanuel Mantiri Ng’unda vs Herman Mantiri Ng'unda and 20 Others, Civil Appeal No. 8 of 1995 (unreported) the Court of Appeal observed thus: Page 8 of 10 " The question of jurisdiction for any court is basic, it goes to the very root of the authority of the court to adjudicate upon cases of different nature .... The question of jurisdiction is so fundamental that, courts, must, as a matter of practice on, the, face of, it be certain, and assured, of, their, jurisdictional position, at the commencement of the trial.... It is risky and unsafe for the court to proceed with the trial of a case on the assumption that the court has jurisdiction to adjudicate upon the case. [Emphasis added] Furthermore, in the case of Jumanne Leonard Naqana @ Azori Leonard Naqana & another v The Republic, Criminal Appeal No. 515 of 2019 Court of Appeal of Tanzania at Musoma (unreported) it was observed thus; "The fate which befalls the proceedings and a decision made without jurisdiction is a nullity. Even where a court decides to exercise a jurisdiction which it does not possess, its decision amounts to nothing”. Having found that the appeal at hand stemmed from a nullity judgment I hold that there is no competent appeal before this Court. Basing on the above observation I accordingly make the following orders; 1. I allow the appeal, quash and set aside the entire proceedings and decision of the Tribunal in Land Application No. 160 of 2018 since they emanated on the improper order. Page 9 of 10 2. I quash and set aside the entire proceedings and decision of the First Appellate Tribunal on Land Appeal No.99/2017 and I order the records to be remitted back to the First Appellate Tribunal for the Appeal to be determined on merit. 3. Since the mistake was not occasioned by the parties I order each party to bear its own costs It is so ordered. DATED AND DELIVERED AT MOROGORO THIS 22nd DAY OF NOVEMBER 2024. L. MANSOOR JUDGE 22/11/2024 Page 10 of 10