LUSHINGE KAZUNGU MAPULI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 15682 OF 2024 (Arising from the decision of the DLHT for Mwanza in Misc. Application No. 447 of 2022 originating from Application No. 18 of 2022) LUSHINGE KAZUNGU MAPULI & ANOTHER .……………….……. APPELLANTS VERSUS NDUMILA S. KAZUNGU (Administrator of the estate of the late Kazungu Mapuli Kazula) ………………………….. RESPONDENT JUDGMENT 03/12/2024 & 14/02/2025 ROBERT, J: This is an appeal arising from the judgment and order of the District Land and Housing Tribunal for Mwanza (hereinafter referred to as "the DLHT") in Miscellaneous Land Application No. 447 of 2022. Before the DLHT, the appellants sought an order to set aside an ex- parte judgment rendered in Land Application No. 18 of 2022. However, their application was unsuccessful, prompting them to lodge the present appeal. The appellants, represented by Mr. Innocent Bernard, learned Advocate, advanced two grounds of appeal as follows: 1. That the Honourable Tribunal erred in law by pronouncing an ex-parte judgment in favour of the respondent without jurisdiction, as the matter ought to have first been subjected to 1 mandatory mediation before the Ward Tribunal and mediation certificate issued. 2. That the Honourable Tribunal erred in law and fact by dismissing the application to set aside the ex-parte judgment despite the appellants demonstrating sufficient cause for non- appearance, as they were never served with summons for the hearing, thereby violating their right to be heard. The hearing of the appeal proceeded by way of written submissions. In support of the appeal, Mr. Innocent Bernard, learned counsel for the appellants, argued in respect of the first ground that the DLHT lacked jurisdiction to entertain the application in the absence of a mediation certificate from the Ward Tribunal. He contended that section 13(4) of the Land Disputes Courts Act, Cap 216 R.E. 2019, as amended by section 45 of the Written Laws (Miscellaneous Amendments) (No. 3) Act of 2021, mandates that a land dispute must first be referred to the Ward Tribunal for mediation. The relevant provision reads: "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 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 2 instituted, the aggrieved party may proceed to institute the land dispute without the certificate from the Ward Tribunal." Mr. Bernard maintained that the respondent filed the matter directly before the DLHT without obtaining the requisite mediation certificate, nor was there evidence that the Ward Tribunal failed to settle the matter within the prescribed thirty-day period. He relied on the decisions in Mathias Kwezaho vs Furuza Kahuzu, Misc. Land Appeal No. 18 of 2018, and Mohamed Said Seif vs Abdul Aziz Hageb & Another, Civil Application No. 10 of 2010 (CAT), where proceedings before the DLHT were nullified for want of jurisdiction. Regarding the second ground, learned counsel contended that the appellants were never served with summons for the hearing of the application. The only record of service was in relation to notification of the decision. He argued that proper service of summons is a mandatory requirement under Regulation 6 of GN No. 174 of 2003. He cited Mary Mchome Mbwambo & Amos Mbwambo (as Joint Administrators of the Estate of the Late Gilliard Mbwambo) vs Mbeya Cement Co. Ltd, Civil Appeal No. 161 of 2019 (CAT), where it was held that proof of service must be properly documented and in accordance with the law. 3 Mr. Bernard concluded that the Tribunal's failure to ensure service of summons deprived the appellants of their right to be heard, thereby rendering the proceedings fatally defective. He thus prayed for the appeal to be allowed, the proceedings of the DLHT quashed, and the orders emanating therefrom set aside. In reply, learned counsel for the respondent opposed the appeal. On the first ground, he argued that the appellants’ application before the DLHT was to set aside an ex-parte judgment, not to determine the substantive dispute. Therefore, the issue of a mediation certificate was immaterial and was never raised before the Tribunal. He asserted that the matter was, in fact, referred to the Ward Tribunal, which decided in the respondent’s favour, but the pecuniary jurisdiction of the Ward Tribunal was exceeded, necessitating the matter’s referral to the DLHT. On the second ground, the respondent contended that the appellants were duly served with summons but deliberately failed to appear. He referred to records showing that the first appellant was served on 08/02/2022 to appear on 04/02/2022, while the second appellant refused service for the hearing on the same date. He insisted that by virtue of Regulation 6(4)(b) of GN No. 174 of 2003, service was properly effected. 4 Having considered the submissions of both parties and the record of the proceedings, the first issue for determination is whether the DLHT had jurisdiction to entertain Land Application No. 18 of 2022. It is a trite principle of law that jurisdiction is fundamental and can be raised at any stage of proceedings. The Court of Appeal in Sospeter Kahindi vs Mbeshi Mashini, Civil Appeal No. 56 of 2017 (unreported), held: "The question of jurisdiction of a court of law is so fundamental that it can be raised at any time, including at an appellate level." Similarly, in Patrick William Magubo vs Lilian Peter Kitali, Civil Appeal No. 41 of 2019 the Court emphasized that courts must first satisfy themselves of jurisdiction before determining any matter. Applying these principles to the instant case, section 13(4) of the Land Disputes Courts Act, Cap 216 R.E. 2019, as amended, clearly mandates that land disputes must first be referred to the Ward Tribunal for mediation. The record is devoid of any mediation certificate issued by the Ward Tribunal. While the respondent asserted in submissions that the matter had been mediated in Land Dispute No. 07/2021, no evidence was presented before the DLHT to support this claim. 5 On the second ground of appeal, it is well established that proper service of summons is a fundamental right to a fair hearing. The failure to serve the appellants in accordance with Regulation 6 of GN No. 174 of 2003 vitiated the proceedings. For the foregoing reasons, I find that the proceedings before the DLHT in Miscellaneous Land Application No. 447 of 2022 and Land Application No. 18 of 2022 were vitiated by want of jurisdiction and failure to effect proper service of summons. Consequently, I quash the proceedings in Miscellaneous Land Application No. 447 of 2022 and Land Application No. 18 of 2022 and set aside the judgment and orders emanating therefrom. Parties at liberty to recommence proceedings in accordance with the law. It is so ordered. K.N. ROBERT JUDGE 14.2.2025 6