Maneno Salumu v Kigoma Ujiji Municipal Council

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA MISCELLANEOUS LAND APPLICATION NO. 7 OF 2023 1. MANENO SALUM 2. SHABANI ISSA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS KIGOMA UJIJI MUNICIPAL COUNCIL .............................. RESPONDENT / DEFENDANT RULING J. NKWABI, J, Date: 31/07 & 28/10/2024 On 10/02/2023, this Court allowed the appeal by revising and vacating the proceedings and decisions of the District Land and Housing Tribunal in Consolidated Miscellaneous Application no 99 of 2022 and 100 of 2022, Miscellaneous Land application No. 27 of 2017, Miscellaneous Land Application No. 3 of 2019. Miscellaneous Land Application Nos. 103 of 2019 and 104 of 2019 and Miscellaneous Land Application No. 153 of 2020. It also proceeded to revise and vacate the decision of the ward tribunal of Buhanda Businde made in Land Case No 1 of 2020 and 11 of 2010. It directed any interested person to file a fresh case in a court of competent jurisdiction to try the case. The applicants, herein, appear to be aggrieved by the decision of this Court. They wish to appeal to the Court of Appeal. Because matters that are intended to be appealed against have their origins in ward tribunal, they are legally required to obtain a certificate on point of law. That is why they are before this Court to obtain one. The chamber summons which has been brought under the provisions of section 47(3) of the Land Disputes Courts Act, No. 2/2002 Cap. 216 R.E. 2022 as amended by section 47 (c) of the Legal Sector Laws (Miscellaneous Amendment) Act No. 11 of 2023, section 5(2) (c) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2022 and any other enabling provisions of the law is containing the prayers that: 1. That this honourable Court be pleased to certify that there are points of law to be considered on appeal by the Court of Appeal of Tanzania against the judgment of the High Court of Tanzania in Land Appeal No. 53 of 2022 dated 10th February, 2023. Page. 1 2. Costs of this application be in the course. 3. Any other relief(s) deemed just and fit by this honourable Court to be granted. In the ward tribunal, both applicants obtained verdict in their favour, whereby the respondent in this application lost the cases. The applicants had decision in their favour that they had the right to own their respective pieces of land without and hindrances. As indicated above, the High Court vacated every such order. The matters that are craved to be certified as points of law could be seen in the 10th paragraph in the affidavit in support of the application. Therein, I am called upon to certify the following points of law: 1. That, whether in terms of section 76(1) of the Civil Procedure Code Cap. 33 R.E. 2022 and read together with sections 41(1) and 42 of the Land Disputes Court Act No. 2 of 2002 Cap. 216 R.E. 2022, the High Court on first appeal could re-evaluate and analyze the evidence, judgment and proceedings of Buhanda Businde ward tribunal and subsequently vacate the decisions of ward tribunal in Land Cases No. 1 and 11 of 2010 as it did. 2. That, since before the High Court was merely an appeal against the ruling by the District Land and Housing Tribunal denying the respondent extension of time to apply for revision, whether in law, the Court exceeded its mandate in traversing into some other applications i.e. Misc. Land Application No. 3 of 2019, Misc. Land Applications No. 103 and 104 of 2019 and Misc. Land Application No. 153 of 2020 and No. 27 and 28 of 2017 of the District Land and Housing Tribunal not the subject matter of Land Appeal No 53 of 2022 appeal and subsequently, revise and vacate them all together with the Buhanda Businde ward tribunal’s decisions in Land Cases No. 1/2010 and 11 of 2010. 3. That, having decided to conversely traverse and decide the matter before the Court i.e. an appeal against consolidated Misc. Land Applications No. 99 and 100 of 2022 together with other applications i.e. Misc. Land Application No. 27 of 2017, Misc. Land Applications No. 3 of 2019, Misc. Land Applications No. 103 and 104 of 2019 and Misc. Land Application 153 of 2020, whether in law, the High Court erred in law in so doing without availing the parties herein and other (non-parties including those mentioned in paragraphs 4 and 6 above) to be directly affected with the decision of the Court with the right of being properly heard. 4. That, whether the order by the High Court inter alia revising and vacating both decisions by the ward tribunal in Land Cases No. 1 and 11 of 2010 and subsequent Misc. Land Application (execution) No. 27 of 2017 alone without mentioning Misc. Land Application (Execution No. 28 of 2017) relating to Land Case No. 1 of 2010 is not contradictory and so un-executable. 5. That, whether in law, the High Court erred to allow the respondent’s appeal mainly based on points of illegalities without due regard to the length of delay by the Respondent since 2010 when the impugned ward tribunal’s decisions were delivered to 2022 when the consolidated applications were filed (some 11 years) without good reasons and accounting for the inordinate delay. 6. That, since the same Hon. Court in Chuki Ibrahim Masala v. Dotto Dunia Mussa, Misc. Land Application No. 29 of 2021 (unreported) but herewith attached) regarded inordinate and or prolonged delay Page. 2 in taking legal action without good explanation was vitiating the illegality raised in an application for extension of time, whether in law, the same Court was not bound by its own decision in similar circumstances or had applied double standards in favour of the Respondent without giving reasons for the departure as by law required. 7. That, whether in law, the High Court in determining the impugned appeal could apply the provisions of the Civil Procedure Code Cap. 33 R.E. 2022 particularly section 95 to bridge the gap and cross over to the ward tribunal’s proceedings when in law, the cited law itself categorically limits its applicability to some other courts and not ward tribunals. 8. That, whether the appellate and revisional jurisdiction of the High Court can be interchangeably and simultaneously applied against ward tribunal’s proceedings and district land and housing tribunal’s proceedings and so at par as in Land Appeal No. 53 of 2022. 9. That, whether the appellate and revisional jurisdiction of the High Court generally, was not bound by Court of Appeal- decisions cited against the respondent’s case and so to give reasons for departure therefrom or distinguishability. The respondent, in her counter-affidavit, vigorously opposed the application and averred that the application is lacking in merits. She averred that the matters complained with are matters of fact which this Court adequately decided upon. She stressed that no points of law worthy of consideration by the Court of Appeal. She is urging the application be dismissed with costs for want of points of law. This application was ordered to be argued by way of written submissions. The applicant is represented by Mr. Ignatus Kagashe, learned counsel, who filed the written submission in chief but did not file a rejoinder submission. The respondent had her written submission drawn by Mr. Celestine Ngailo, learned State Attorney. I am indebted to them for their submissions. I have closely examined the submissions of both counsel. Before I embark on the determination of this application, I remind myself of the guidance on what I am supposed to do in an application of this nature. In The Regional Manager – TANROADS Lindi v. DB Shapriya & Company Ltd, Civil Application No. 29 of 2012, CAT, (unreported) in which it was stated that: “It is now settled that a Court hearing an application should restrain from considering issues that are to be dealt with by the appellate Court. This is so in order to avoid making decisions on substantive issues before the appeal itself is heard …” What entails a point of law and what this Court should do could be seen in a number of decisions of the Court of Appeal. One of them being Magige Nyamoyo Kisinja v Merania Mapambo Machiwa, Civil Appeal No. 87 of 2018, (unreported) where it was stressed that: Page. 3 “… it is no wonder, in our settled opinion that, before us both the appellant and the respondent conceded that what was certified by the High Court is not a point of law at all. In the circumstances, we are settled that in the present appeal there is no point of law which has been certified by the High Court to deserve the attention of this Court. We must emphasize that the point to be certified by the High Court must be that of legal nature and significant to warrant the decision of the Court. It is not enough for a party in a third appeal, like in the instant appeal, to simply think the lower court is wrong in its decision to have his case heard by the Court of Appeal.” See also Dorina N. Mkumwa v Edwin David Hamis, Civil Appeal No. 53 of 2017, CAT (unreported) where it was underscored that: “In land disputes, the High Court is the final court on matters of fact. The Legislature has taken this finality so seriously that it has, under subsections (1) and (2) of section 47 of Cap. 216 [as amended by the Written Laws (Miscellaneous Amendments) (No.3) Act, 2018 Act No. 8 of 2018] imposed on the intending appellant the statutory duty to obtain either leave or certificate on point of law before appealing to this Court. It is therefore self-evident that applications for Certificate of the High Court on points of law are serious applications. We are prepared to reiterate that certificates on points of law for appeals originating from Ward Tribunal mark a point of finality of land disputes that are predicated on matters of fact. Certificates are designed to ensure that land disputes originating from Ward Tribunal come to an expeditious end, preferably in the High Court. On this stance, we abide with our earlier unreported decision in TIMOTH ALVIN KAHOHO V. SALUM ADAM MFIKIRWA, CIVIL APPLICATION NO. 215 OF 2013 where we restated that a decision of the High Court refusing to grant a certificate on point of law under section 47(2) of Land Disputes Courts Act, is final and no appeal against it lies to this Court.” I should state that both parties maintained their stances in submission for and against this application. While, the counsel for the applicants contended, in submission in chief, that all the listed are legal points worthy of certification to be considered and determined by the Court of Appeal. The learned State Attorney, for the respondent, argued that the listed are not legal points worthy of determination by the Court of Appeal but they are based on factual matters which should not be certified for the determination by the Court of Appeal and the application be dismissed with costs. I have had sufficient time to go through the listed points. I find that all the listed are legal points and are worthy of consideration and determination by the Court of Appeal. I reject the objection raised by the respondent in the counter-affidavit and reply submission. Indeed, the reply submission is geared at wanting this Court to discuss whether those legal point are merited or not which is not within the power or jurisdiction of this Court as stated in Page. 4 Shapriya's case (supra). I thus certify the below mentioned as point of law for consideration by the Court of Appeal as indicated below: 1. That, whether in terms of section 76(1) of the Civil Procedure Code Cap. 33 R.E. 2022 and read together with sections 41(1) and 42 of the Land Disputes Court Act No. 2 of 2002 Cap. 216 R.E. 2022, the High Court on first appeal could re-evaluate and analyze the evidence, judgment and proceedings of Buhanda Businde ward tribunal and subsequently vacate the decisions of ward tribunal in Land Cases No. 1 and 11 of 2010 as it did. 2. That, since before the High Court was merely an appeal against the ruling by the District Land and Housing Tribunal denying the respondent extension of time to apply for revision, whether in law, the Court exceeded its mandate in traversing into some other applications i.e. Misc. Land Application No. 3 of 2019, Misc. Land Applications No. 103 and 104 of 2019 and Misc. Land Application No. 153 of 2020 and No. 27 and 28 of 2017 of the District Land and Housing Tribunal not the subject matter of Land Appeal No 53 of 2022 appeal and subsequently, revise and vacate them all together with the Buhanda Businde ward tribunal’s decisions in Land Cases No. 1/2010 and 11 of 2010. 3. That, having decided to conversely traverse and decide the matter before the Court i.e. an appeal against consolidated Misc. Land Applications No. 99 and 100 of 2022 together with other applications i.e. Misc. Land Application No. 27 of 2017, Misc. Land Applications No. 3 of 2019, Misc. Land Applications No. 103 and 104 of 2019 and Misc. Land Application 153 of 2020, whether in law, the High Court erred in law in so doing without availing the parties herein and other (non-parties including those mentioned in paragraphs 4 and 6 above) to be directly affected with the decision of the Court with the right of being properly heard. 4. That, whether the order by the High Court inter alia revising and vacating both decisions by the ward tribunal in Land Cases No. 1 and 11 of 2010 and subsequent Misc. Land Application (execution) No. 27 of 2017 alone without mentioning Misc. Land Application (Execution No. 28 of 2017) relating to Land Case No. 1 of 2010 is not contradictory and so un-executable. 5. That, whether in law, the High Court erred to allow the respondent’s appeal mainly based on points of illegalities without due regard to the length of delay by the Respondent since 2010 when the impugned ward tribunal’s decisions were delivered to 2022 when the consolidated applications were filed (some 11 years) without good reasons and accounting for the inordinate delay. 6. That, since the same Hon. Court in Chuki Ibrahim Masala v. Dotto Dunia Mussa, Misc. Land Application No. 29 of 2021 (unreported) but herewith attached) regarded inordinate and or prolonged delay in taking legal action without good explanation was vitiating the illegality raised in an application for extension of time, whether in law, the same Court was not bound by its own decision in similar circumstances or had applied double standards in favour of the Respondent without giving reasons for the departure as by law required. 7. That, whether in law, the High Court in determining the impugned appeal could apply the provisions of the Civil Procedure Code Cap. 33 R.E. 2022 particularly section 95 to bridge the gap and cross over to the ward tribunal’s proceedings when in law, the cited law itself categorically limits its applicability to some other courts and not ward tribunals. Page. 5 8. That, whether the appellate and revisional jurisdiction of the High Court can be interchangeably and simultaneously applied against ward tribunal’s proceedings and district land and housing tribunal’s proceedings and so at par as in Land Appeal No. 53 of 2022. 9. That, whether the appellate and revisional jurisdiction of the High Court generally, was not bound by Court of Appeal- decisions cited against the respondent’s case and so to give reasons for departure therefrom or distinguishability. I hope, in certifying the above, I have duly complied with the decision in Harban Hajimosi & Another v. Omari Hilal Seif & Another [2001] T.L.R. 409 at page 412 where it was underscored that: “Therefore, according to subsection (2)(c), a certificate on point of law is necessary with appeals relating to matters originating in primary court. The practice of the High Court is to frame such a point or to approve one framed by the intending applicant to certify it to the Court of Appeal.” In the final analysis, this application is merited, it is granted with costs as stated above. It is so ordered. Dated at KIGOMA ZONE this 28th of October 2024. J. . NKWABI, J JUDGE OF THE HIGH COURT Page. 6