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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND REVISION NO. 17454 OF 2024 (Originating from Judgment and Decree of the District Land and Housing Tribunal for Kinondoni in Land Appeal No. 29 of 2017 delivered on 20/10/2017) LATIFA YAHYA SAID.................. APPLICANT VERSUS IBRAHIM HASSAN MSHANGAMA............................ 1st RESPONDENT ASHURA RAMADHAN SHEMDOE............................. 2nd RESPONDENT RULING 17h October & 2Jh November, 2024 L. HEMED, J This matter has been preferred under sections 43(l)(a), (b) and (2) of the Land Disputes Courts Act [Cap.216 R.E 2019]. The Applicant seeks for the following orders: - '7. THAT, the honourable Court be pleased to call for, examine and satisfy itself as to the legality, propriate or otherwise of the proceedings and resultant Judgments and Orders of the District Land and Housing Tribunal Hon. MbiUnyi Chairperson in Land Appeal No. 29 of 2017 originating from the i Ward Tribunal for Makumbusho Ward in Kinondoni District. 2. THA T, the honourable (sic) be pleased to quash and set aside the proceedings and resultant Judgments(sic) and orders in Land Appeal No. 29 of 2017 and the proceedings of the Ward Tribunal. 3. THA T, costs of this application be provided for. 4. THA T, the honourable Court be pleased to grant any other order as it deems fit in the interest of justice." The application has been supported by the affidavit of the Applicant and resisted by the affidavit of the 1st Respondent. The matter proceeded exparte against the 2nd Respondent who could not appear nor file counter affidavit despite being duly served. Hearing was done by way of written submissions. The Applicant has been represented by Mr. Robert Rutaihwa, learned advocate while the 1st Respondent enjoyed the legal service of Ms. Aziza Msangi, learned advocate. All submissions have been promptly filed pursuant to the filing schedule directed by the court. 2 It was the submission of the counsel for the Applicant that the Applicant has been affected by the decisions given for and against the respondents in the proceedings which proceeded without her involvement. One of the grounds raised for revision is that the ward tribunal acted on the matter without pecuniary jurisdiction. According to the learned counsel for the Applicant, the value of the suit landed property was TZS 50 million relying on the sale agreement through which she used to purchase the suit property. He backed his assertions by the then section 15 of the Land Disputed Courts Act Cap 216, arguing that the pecuniary jurisdiction of the ward tribunal to matters of land was limited to the value not exceeding TZS 3 million. It was argued further that the Applicant could not rise the point during trial at the ward tribunal or even during appeal stage at the District Land and Housing Tribunal because she was not made a party thereto. However, she asserted that the question of jurisdiction being fundamental can be raised at any stage including at this time. Reliance was put on the decision of the Court of Appeal of Tanzania in Julius Rukambura v. Isaac Ntwa Mwakajila and Another, Civil Appeal No. 2 of 1998. 3 The learned counsel proceeded to submit that, the issue of jurisdiction was raised by the 1st Respondent at the District Land and Housing Tribunal, but failed to defend it. He stated that the Tribunal refused the point because there was no valuation report. In his opinion, the pecuniary jurisdiction would have been proved if the Applicant was made a party to the proceedings. The 2nd ground relied by the Applicant is that she was denied the right to be heard. It was said that, having purchased the land in question from the 2nd Respondent, the Applicant became substantially interested in whatever was happening involving the suit land. Failure to join the Applicant, contravened the right to be heard making the proceedings and decisions thereof a nullity. The argument was glued by the decision in Mbeya-Rukwa Autoparts & Transport Ltd v. Jestina George Mwakyoma [2003] TLR 251. It was argued further that at the District Land and Housing Tribunal, the proceedings went exparte against the 2nd Respondent and without the involvement of the Applicant. The findings of the ward tribunal were in favour of the 2nd Respondent but the District Land and Housing Tribunal 4 found in favour of the 1st Respondent on appeal. The learned counsel for the Applicant was of the view that the only way to resolve the controversy is through revisions so that, all the parties can be heard on the aspect including the applicant. Another ground which the Applicant relied upon is that the District Land and Housing Tribunal granted orders which were never prayed for. He insisted that the DLHT nullified the residential license which the 2nd Respondent used to transfer the suit premises to the herein Applicant without affording the Applicant the opportunity of being heard. He ended praying the application for revision to be granted. In response thereto, the learned counsel for the 1st Respondent contended in respect to the issue of pecuniary jurisdiction of trial tribunal that when the proceedings commenced in the Ward Tribunal the value of the subject matter was less than three million. He cited the testimonies of the respondents during trial when it was adduced that the suit property was purchased at TZS. 25,0000/. According to Ms. Msangi, the sale agreement referred to by the Applicant was not part of the record of the lower Tribunal to oust the jurisdiction of ward tribunal. She insisted that the question of 5 jurisdiction of the ward tribunal was also determined by the District Land and Housing Tribunal of Kinondoni, when determining Appeal No. 29 of 2017 between the respondents herein. With regard to the right of being heard, it was the contention of the 1st Respondent that the Applicant was given such right through the objection proceedings which ended up being dismissed after being determined on merits and through Application No.382/2018 which ended up by being struck out. The learned counsel relied on the decision of the court of Appeal of Tanzania in Grand Regency Hotel Limited Vs. Pazi Ally and another, Civil Application No. 368/01 Of 2019, arguing that the rights of the Applicant were fully determined. In respect to the ground that the appellate tribunal granted reliefs not prayed by the parties, Ms. Msangi was of the view that such ground cannot be a ground for revision. In her opinion the same does fit as a ground of Appeal and cannot be raised by the Applicant who was not party of the lower Tribunals Proceedings. She prayed for dismissal of the application. In his rejoinder submission, the learned counsel for the Applicant reiterated the submission in chief. He insisted that the trial tribunal did not 6 have the requisite pecuniary jurisdiction to determine the matter and that the Applicant was never given the right to be heard. He added that the appellate tribunal awarded relief that was never sought by the parties. He insisted for the grant of the application at hand. Having carefully gone through the rival submissions together with the records of the lower tribunals, it is apt to determine whether the application is meritorious. The 1st ground which the Applicant has relied upon to move this court to grant the application is jurisdiction. According to the Applicant, the trial ward tribunal did not have the requisite pecuniary jurisdiction to determine the matter before it. In view of the Applicant the suit landed properties has the value of TZS 50,000,000/= which exceeded the pecuniary jurisdiction of the ward tribunal. The basis of her argument was the sale agreement which she used to purchase the suit land from the herein 2nd Respondent. I am mindful that the point of jurisdiction can be raised at any stage of legal proceedings as was held by the Court of Appeal of Tanzania in Ibrahim Omary vs The Inspector General of Police & Two other, Civil Appeal No. 20 of 2009. The question is, did the ward Tribunal acted without 7 jurisdiction? For this court to fault the decision of the ward tribunal on the ground of jurisdiction, it must do so by looking at the record of the trial tribunal to find out if there was evidence adduced or facts pleaded showing that the value of the suit property exceeded the jurisdiction of the trial tribunal. I have perused the records of the trial tribunal and found that the 2nd Respondent had adduced that the suit landed property had the value of TZS 25,000/=, the value which was within the jurisdiction of the trial tribunal. In fact, no one between the parties had resisted the said value which the 2nd Respondent had stated. The value of TZS 50,000,000/= is found in the sale agreement which the Applicant used to buy the property from the 2nd Respondent. According to records, the Applicant purported to purchase the suit property on 21st September 2015 after the conclusion of the proceedings at the ward tribunal. In other words, the said sale agreement of the Applicant was never made available during trial at the ward tribunal. Besides, the said sale agreement was made after the matter before the ward tribunal had been concluded. This means that, when proceedings commenced at the ward tribunal, the value of the suit landed property was not TZS 50,000,000/- as argued by the Applicant. Additionally, the value stated for purpose of instituting a suit in the court of law, is an estimated value and not the actual one. The person who is determined to contradict the estimated value of the suit property has to do so by presenting the actual value which is proved by valuation report prepared by recognized professional. The value in the sale agreement cannot contradict the estimated value - presented by the complainant/applicant/plaintiff. I am holding so because, the value in the sale agreement is based on the bargaining or negotiation power of the parties to the sale transaction. The sale price cannot always be in tandem with the actual value of the suit landed property. In that regard, I do not find merit in the ground of pecuniary jurisdiction. The Applicant has also relied on the point of the right to be heard. I am aware that the right to be heard in Tanzania is a constitutional one. It is provided under article 13(6)(a) of the Constitution of the United Republic of Tanzania, Cap.2. The said right was well articulated by the Court of Appeal of Tanzania in Mbeya-Rukwa Autoparts andTransport Ltd vs Jestina George Mwakyoma[2003]T.L.R 251 thus:- '7/7 this country, natural justice is not merely a principle of common law; it has become a 9 fundamental constitutional right. Article 13(6)(a) includes the right to be heard among the attributes of equality before the law..." [Emphasis added] Furthermore, in I.P.T.L vs Standard Chartered Bank(Hong Kong)Ltd, Civil Revision No.l of 2009, the Court of Appeal of Tanzania stated the effect of making a decision without affording a party with the right of being heard. It observed thus: - "No decision must be made by any court ofjustice, body or authority entrusted with the power to determine rights and duties so as to adversely affect the interests of any person without first giving him a hearing according to the principles of natural justice..." It should be noted that a decision made without affording a party the right to be heard becomes a nullity ab initio. The issue for determination in the matter at hand is whether the Applicant was heard in this matter. The Applicant alleges that she was not heard at the ward tribunal and at the appellate tribunal. However, I have noted that the Applicant had instituted objection proceedings at the District Land and Housing Tribunal in the name 10 of Misc. Application No.709 of 2020 where she sought for the following orders among others thus: - "That this Honourable Tribunal be pleased to investigate the objection claims in respect of the intended immediate eviction of the applicant and her tenants from a house with Residential Licence N0.KND/MBS/MBN38/74 located at Mbuyuni Street Makumbusho Ward in Kinondoni Municipality..." [Emphasis added] The District Land and Housing Tribunal heard the Applicant and investigated the matter. The investigation revealed that the Applicant purchased the suit piece of land on 21st September 2015 while there was a pending matter at the ward tribunal. The DLHT also found that the sale transaction was done contrary to the injunctive orders of the ward tribunal which restrained the 2nd Respondent from selling the suit landed property. The DLHT further realized that the Applicant was duty bound to make due diligence prior to buying the suit landed property. In the view of the Chairperson who presided over to determine the objection proceedings, if the Applicant would have discharged her duty of taking due diligence she would not have purchased the suit land. The DLHT ended up holding that ii ( \ since the Applicant had purchased the property while there was a pending matter in court and contrary to the restraint order, the purported sale of the suit land was a nullity. In light of the foregoing, I find that the Applicant herein was given the opportunity to defend her interest through the objection proceedings where the Applicant's interests over the suit landed property were investigated. The position of the law is that, a person who is aggrieved by the decision in objection proceedings, the remedy is to institute a fresh suit and not to apply for revision as in the instant case. In the present matter, the Applicant lost in the objection proceedings and opted to come to this court by way of revision to challenge the decree alleging that she was not heard. I must clearly state that a person who is not a party to the decree can challenge the same by way of objection proceedings or revision. Once he/she opts to go by way of objection proceedings he/she cannot later on use the window of revision relying on the right to be heard because the applicant is presumed to have exercised such right through the prosecution of the objection proceedings. In that 12 regard, the ground of not being heard as raised in the application at hand does not hold water. The last point relied upon by the Applicant is that the trial tribunal and the appellate tribunal granted reliefs which was not prayed. I have gone through the records of the lower tribunals and found that at the ward tribunal, the dispute was on ownership of the suit land between the respondents herein. At the end of the inquiry, the ward tribunal found in favour of the herein 2nd Respondent. The 1st Respondent appealed to the DLHT against such decision where the decision of the ward tribunal was reversed by declaring the 1st Respondent owner of the suit landed property. Going through the records of the lower tribunal, I find that the lower tribunals awarded what the parties had sought. In the end, I find that Application has no merits and deserves to be dismissed. I do hereby proceed to dismissed it with costs. Order accordingly. DATED Kr.ES'SALAAM this 20^ November, 2024. JUDGE 13