20130416 TZHC Arusha

IN THE HIGH COURT OF TANZANIA ATARUSHA (PC) CIVIL APPEAL NO. 67 OF 2002 (C/F District Court of Arusha at Arusha in Civil Appeal No. 47 of 2002 Originating from Enaboishu Primary Court in Civil Application No. 2 of 2002, Civil Case No. 49 of 2002 and Civil Case No. 54 of 2002) BETWEEN 1. LAN GAEL s. KAAYA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 1 ST APPELLANT 2. SAMWEL PETER MBISE ................................. 2ND APPELLANT 3. FREE PENTECOSTAL CHURCH OF TANZANIA ................................. 3Ro APPELLANT AND REGISTERED TRUSTEES OF KANISA LA PENTECOSTE -ARUSHA ........................ RESPONDENT Date of last Order: 05/12/2012 Date of Judgment: 16/4/2013 JUDGMENT SAMBO, J. Aggrieved by the Judgment delivered on 21 st day of November, 2002 by F.J. Mushi, RM before the District Court of Arusha at Arusha in Civil Appeal No. 47 of 2002, the appellant herein filed a Petition of Appeal on four (4) grounds that; 1. The trial Court erred in law in ruling that the Primary Court had Jurisdiction to hear and determine land disputes. 1 2. The trial Court erred in law in ruling that, the Land Acts No. 4 and 5 of 1999 have not ousted the provisions of sections 18 and 63 of the Magistrates Courts Act, [CAP. 11 R.E, 2002] on land disputes. 3. The trial Court erred in law in ruling that, in absence of the Village Land Councils and the District Land and Housing Tribunals allows Primary Courts to hear and determine land disputes in lieu thereof. 4. The trial Court erred in law and in fact in overruling the Preliminary Point of Objection that, Primary Courts had Jurisdiction to determine land disputes. It is important to note at the outset that the respondent did not show appearance in Court when the matter was scheduled for hearing hence this Court issuing orders for the same to proceed ex parte. It was from that order that the appellants through the serviaes of Lengai Chambers, Advocates were ordered· to file their written submission by lih day of July, 2012. The appellants abided the Court schedule hence this Judgment. Arguing for the grounds of appeal, the appellants' learned counsel submitted for the 1st and 2nd grounds of appeal that; the matter at hand was filed in Court on 11th day of March, 2002 governed by the Village Land Act, [CAP. 114 R.E, 2002] which came into operation on the 1st day of October, 2001. 2 The appellants' learned counsel referred this Court to the provisions of section 62(2) of the Village Land Act (supra) and section 167(1) of the Land Act, [CAP. 113 R.E, 2002] that read; 'The following courts are hereby vested with exclusive jurisdiction, subject to the provisions of Part XIII of the Land Act 1999, to hear and determine all manner of disputes, actions and proceedings concerning land, that is to say- (a) the Court of Appeal; (b) the Land Division of the High Court; (c) the District Land and Housing Tribunal; (d) the Ward Tribunal; and (e) the Village Land Council'~ It was the appellants' learned counsel further reference to the provisions of section 4(1) of the Land Disputes Courts Act, [CAP. 216 R.E, 2002] that read; "(1) Unless otherwise provided by the Land Act no Magistrate's Court established by the Magistrates' Courts Act shall have civil jurisdiction in any matter under the Land Act and the Village Land Act'~ The appellants' learned counsel argued that, the Primary Courts are not listed among those vested with authority to determine land matters thus praying for both the 1st and 2nd grounds of appeal in respect of Jurisdiction to be allowed. As to the 3rd and 4th grounds of appeal, the appellants' learned counsel submitted that; absence of Village Councils and or District Land and Housing Tribunals did not confer Jurisdiction to Primary Courts to hear and determine land matters. 3 It was further submission by the appellants; learned counsel that; had the respondent being in hurry, she should have instituted her matter before Ward Tribunals which were in place since 1984. It was from the above the appellants' learned counsel argued for both the 3rd and 4th grounds of appeal to be allowed. Additionally; the appellants' learned counsel submitted that, the plaint filed by the respondent before the Primary Court on 11th day of March, 2002 was not attached with some two vital documents as provided for i by the provisions of section •8 of the Trustees Incorporation Act, [CAP. 318 R.E, 20021 that is, a writt~n request by the respondent to own land and a written consent by tne Administrator General allowing the Respondent. It was from the above, the appellants' learned counsel prayed ' for the appeal to be allowed with, costs. I I To this Court; having gone through the Court records and the i I respective submissions by t~e learned counsel for both parties, ' I this Court has the following in disposal. It's not disputed that the matter ! I at hand was filed in Primary Court on 11th day of March, 2002 that is, I I post coming into operation of both the Land Act (supra) and Village Land Act (supra) that is, on 1st day of May, 2000. ! From the above immediate position, one obviously stand to argue I (as also argued by the appellants' learned counsel) that; filing of the matter at hand before Enaboish4 Primary Court on 11th day of March, 2002 ! contravened what was already set into place by both the Land Act (supra) ! 4 I and Village Land Act (supra). Truly, both logically and as it my clearly seen through sequence of events, that ought to have stood the position. But it should be noted that, firstl~; though both the Land Act (supra) and Village Land Act (supra) came into operation on 1st day of May, 2000, yet; implementation of both the Land Act (supra) and 'Village Land Act (supra) did not take effect immediately as from the date when the same came into I I operation. Secondly; though both the Land Act (supra) and Village Land Act (supra) came into operation on 1st day of May, 2000, yet; the said statutes did not bar filing of land r;natters before the normal Courts. I I i ' It was from the second avenue immediate above stated that Land Disputes Courts Act (supra) emancipated the inexistent confusions by introducing the provisions of section 4(1) of ~he Land Disputes Courts Act (supra) that barred Magistrates' Courts established by the Magistrates' Courts Act (supra) from having civil Jurisdiction in any matter under the Land Act (supra) and the Village Land Act Gsupra). I From the above, this Court holds that; since the coming into force of both the Land Act (supra) and Village Land Act (supra) on the 1st day of May, 2000 did nbt bar institution of land matters in the I normal Courts on one hand and since the said Tribunals for land matters did not take effect in operation immediately frorri the date when the Land i Act (supra) and Village Land Act (supra) came into force on the other I ! hand, then; it follows that, from the fact that the matter at hand was th filed on 11 day of March, 2002 that is, before. coming into force of the 5 Land Disputes Courts Act (supra) the provisions which specifically barred the Magistrates' Courts established under the Magistrates' Courts Act 0 (supra) from entertaining land matters, then; this Court holds the matter at hand to have been properly filed before the Primary Court. Thus; from the above, all the 1st, 2nd' 3rd and 4th grounds of appeal lack merits in law and are hereby dismissed. In respect of the other issue raised by the appellants' learned counsel at the submission stage as to attachment of some two vital documents vide the provisions of section 8 of the Trustees Incorporation Act (supra) that is, a written request by the respondent to own land and a written consent by the Administrator General; this Court, having gone through the wordings of the said provisions of section 8 of the Trustees Incorporation Act (supra) has failed to come up with such requirement in existence either. For that matter, the said issue raised by the appellants' learned counsel at this appellate stage likewise lacks merits in law hence hereby dismissed. Reasons wherefore; all the above grounds of appeal are non meritorious, consequently; hereby dismissed. Since the respondent did not show appearance in Court, this Court makes no order as to costs. Order accordingly. JUDGE 16-4-2013 6