JUUDGMENT OF WOMEN AND CHILDREN FOUNDATION GROUP VS MARIAM KALUPAND

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO. 64 OF 2023 CASE REFERENCE NO. 20230619000506088 (Originating from Application No. 4 of 2017 in the District Land and Housing Tribunal for Mbeya at Mbeya) WOMEN AND CHILDREN FOUNDATION GROUP@ WAKINA .................................................................................1ST APPELLANT HARAKA VILLAGE COUNCIL ..............................................2ND RESPONDENT MBOZI DISTRICT COUNCIL ...............................................3RD RESPONDENT VERSUS MARIAM KALUPANDE (the administratrix of the late LETSON NDABILA KALUPANDE) ..............................................RESPONDENT JUDGMENT Date of hearing: 09/05/2024 Date of judgment: 09/07/2024 NONGWA, J. The respondent in capacity as the administratrix of the estates of the late Letson Ndabila Kalupande sued the above-named appellants in the District Land and Housing Tribunal for Mbeya in Land Application No. 1 4 of 2017 over a land measuring thirty-one acres located at Haraka Village within Mbozi district in Songwe region (suit land). She prayed for judgment and decree for one, declaration that was the lawful owner of the disputed land; two, that respondents are trespassers; three, declaration that survey and process of issuing certificate of occupancy was null and void; four, permanent injunction against the respondent; five, general damage at the tune of Tsh. 200,000,000/=, costs of the suit and any other reliefs. It was alleged that the applicant and her deceased husband Letson Ndabila Kalupande were the lawful owner of the suit land in which they erected a house and grounded two milling machines after the applicant’s husband acquiring it from Shangali Halinga. Later on, around 1990’s, the applicant’s husband formed and registered an NGO named WAKINA WOMEN AND CHILDREN FOUNDATION GROUP, the 1st appellant which was invited to have its office in the suit land. That the government authorities were notified. It was alleged that the status remained so until in 2016 and 2017 when a constitution of the 1st appellant was altered and started to claim ownership over the suit land. The applicant stated that the matter was referred to District Commissioner without success and 2 later the respondent became aware that the 1st appellant had been issued with customary right of occupancy. This resulted the present dispute. The 1st appellant in her amended written statement of defence, disputed the whole content of paragraph 8 of the application and the respondent was put to strict proof. On their part the 2nd and 3rd appellant filed joint defence, they admitted that the deceased applied and was granted parcel of land measuring 31 acres from the then Hezya Village for purpose of enhancing socio-economic development of Hezya, Haraka and Namwanga villages. They also admitted that the applicant was the deceased’s spouse, that the 1st appellant has been doing her activities in the suit land before and after registration. They alleged further that grant of customary right of occupancy is a process which is participatory, it was therefore wrong to say the 1st appellant was granted the suit land by the District Commissioner. Despite the above admission they put the applicant to strict prove. Upon full trial the tribunal was satisfied that the respondent had proved the case to the standard required, thus the decision was given in her favour. 3 Aggrieved by the decision, the appellants filed memorandum of appeal consisting two grounds of appeal which will not be reproduced for the reason to be apparent shortly. On 17/4/2024 State Attorney for the 2nd and 3rd appellant prayed and was granted un-objected prayer for leave to add additional ground of appeal to the effect that; The tribunal had no jurisdiction to hear and determine Land Application No. 4 Of 2017 without joining the Attorney General. When the appeal came on for hearing, present were Mr. Jerry January, State Attorney for the 2nd and 3rd appellants, Mr. Omary Ndamungu, learned counsel for the 1st appellant and Mr. Baraka Mbwilo also learned counsel for the respondent. The appellants prayed to withdraw grounds on memorandum of appeal and remained with the additional ground as stated earlier. State Attorney was the first to take the ball rolling, he submitted that following amendments of law, through Written Laws (Miscellaneous Amendments) Act, Act No. 1 of 2020 which amended section 6 of the Government Proceedings Act [Cap 6 R:E 2019] introduced a mandatory requirement of joining the Attorney General in all the cases in which the Government is a party. 4 State Attorney submitted that Land Application No. 4 of 2017 was filed in 2017 in the tribunal and the decision delivered on 9/5/2023. That at that time the law had already been amended to the extent that the District Court of Mbozi, and Haraka Village falls under the Local Government Authority. Further argument was that the amendment applies retrospective as does not affect fundamental rights of the parties. To support the argument, he cited Lala Wino vs Karatu District Council, Civil Application No. 132 of 2018 [2019] TZCA 46 (1 April 2019; TanzLII) and Bryceson Chengula and 28 others vs Mbozi District Council, Land Appeal No. 116/2022, High Court of Tanzania at Mbeya (Unreported). It was stated that after the amendment of the law, the tribunal had no jurisdiction to continue hearing Land Application No. 4/2017 without joining the Attorney General for the 2nd and 3rd appellants are local government. He added that the amendment did not prejudice the rights of the parties and was just procedural. Thus, prayed the appeal be struck out with costs. Mr. Omary Ndamungu for the 1st appellant, supported submission made by State Attorney and insisted that the raised ground is of law which 5 has to be followed by the parties and the court. He too prayed the appeal be struck out with costs and parties to follow procedures if they so wish. Responding to the above submissions, Mr. Baraka stated the law was not interpreted properly especially the law governing procedural laws. Counsel argued he was not disputing that Act No. 1 of 2020 requiring joining of the attorney General is a procedural law. Advancing his argument, Mr. Baraka stated it is the trite law that procedural laws apply retrospectively however, there are exceptions to that general rule, that is procedural laws can not apply retrospective where there is good reason to the contrary. The overriding reason, Mr. Baraka said, is if parties may not be prejudiced. To bolster the point counsel cited the decision of Court of Appeal of Raymond Costa vs Mantrac Tanzania Limited, Civil Application No. 42/08 of 2018 [2019] TZCA 673 (8 April 2019; TanzLII) page 15-16 and Joseph Khenani vs Nkasi District Council, Civil Appeal No. 126 of 2019 [2022] TZCA 82 (23 February 2022; TanzLII) page 12-14 High court which was referred are case of Zadock Maende Elphace vs Bunda town Council, Misc. Application 108 of 2021 [2022] TZHC 11200 (23 March 2022; TanzLII) at page 8-11 and Seth Jacob Ndossi (Administrator of estate of the late Jacob Ndeshiliyo Ndossi) vs Hai District Council and another, 6 Land Revision No. 06 of 2022 [2023] TZHC 17882 (8 June 2023; TanzLII) page 5-10. He added the case of Lala wino (supra) relied by the appellants’ counsel was cited in the above referred case. In an effort to convince the court that Act No. 1/2020 cannot apply retrospective and specifically to the appeal at hand, Mr. Baraka had six reasons; one, the amendment came while the case was pending in the tribunal; two, that the respondent will be prejudiced because she will have to start the process afresh by serving ninety days notice and many other costs; three, that the parliament did not intended this amendment to cover even pending suits and it was not expressly stated so; four, that the amendment is not purely procedural, because it takes away the rights of the respondent to file the suit according to the law that existed at the time she filed the case in the tribunal; five, Logic, that if Act No. 1/2020 was intended to apply retrospective, all cases filed before these amendment in all courts in Tanzania, would collapse; and six, that if Attorney General was willing to be joined would have applied to be a party. Counsel argued raising this ground at this stage is just kicks of a dying horse. Mr. Baraka went on to submit that in the case of Raymond Costa (supra) and Joseph Khenan (supra) laid good principles regarding 7 retrospective applicability of procedural laws. He added that the case of Bryceson Chengula (supra) cited by the counsel of the appellants was decided without advantage of the cases of Court of Appeal. winding up his submission, Mr. Baraka cited the case of National Health Insurance Fund & Another vs Grace Lobulu & Others, Civil Appeal No. 521 of 2022 [2024] TZCA 259 (12 April 2024; supra) and prayed the appeal to be dismissed. During rejoinder, Mr. Omary Ndamungu conceded that retrospective of procedural law has exception where applicability of the rule will prejudice the interests of the parties, however, was of the view that the current appeal did not fall under that exception. Counsel said, Mr. Baraka has failed to tell the court how the respondent will be prejudiced, to him the enumerated reason by the respondent’s counsel cannot be used to defeat the purpose of the law. Further argument was that it is not necessary for the law to state expressly that the law applies retrospectively, instead it is the interpretation of the court in performing its duties. On argument that Act No. 1 of 2020 was not procedural, it was submitted that it is pure procedural law on how, when to sue the government and did not determine the right of the parties. He added that parties do not have the 8 power to confer jurisdiction to courts. On why the Attorney General did not apply to be joined, Mr. Omar said cannot be used to defeat the appeal. Taking where Mr. Omar ended, Mr. Jerry January submitted that in the case of Raymond Costa (supra) page 15-16, the court insisted on the issue of retrospective principle when the enactment does affect substantive right of parties. I have considered rival submissions of counsels and the only issue for my determination is whether Act No. 1 of 2020 applies retrospective. In dealing with this issue. Ordinarily, in terms of section 14 of the Interpretation of Laws Act [Cap. 1 R.E. 2019] the law or Act comes into operation on the date of its publication in the Gazette except if the law provides otherwise. Of importance is that the law would not apply retrospectively if it affects substantive rights of the party, however, where such change(s) affects only the procedure, it can operate retrospectively. There is a body of authorities on this aspect, these are Municipality of Mombasa vs Nyali Ltd [1963] E.A. 371, DPP vs Iddi Hassan Chumu & Another, Criminal Appeal No. 430 of 2019) [2021] TZCA 3540 (23 December 2021; TanzLII), Joseph Khenani (Supra), The Director of Public Prosecution (DPP) vs Jackson Sifael Mtares, Criminal Appeal No. 2 of 2018) [2018] TZCA 393 (13 September 2018; TanzLII), 9 Raymond Costa (supra), Henry Bubinza (the administrator of the estate of the late Mathias Njile Bubinza vs Agricultural Inputs Trust Fund & 3 Others and Makorongo vs Consigilio [2005] 1 EA 247. In Municipality of Mombasa (supra) the court stated; ‘Whether or not legislation operates retrospectively depends on the intention of the enacting body as manifested by legislation. In seeking to ascertain the intention behind the legislation the Courts are guided by certain rules of construction. One of these rules is that if the legislation affects substantive rights it will not be construed to have retrospective operation unless a clear intention to that effect is manifested; whereas if it affects procedure only, prima facie it operates retrospectively unless there is good reason to the contrary. But in the last resort it is the intention behind the legislation which has to be ascertained and a rule of construction is only one of the factors to which regard must be had in order to ascertain that intention.’ In the decision of the Privy Council in Yew Bon Tew v. Kendaraan Bas Mara [1983] 1 AC 553 quoted with approval in the case of Joseph Khenani vs Nkasi District Council, Civil Appeal No. 126 of 2019 [2022] TZCA 82 (23 February 2022TanzLII) the court held; ‘Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an 10 existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in regard to events already past. There is, however, said to be an exception in the case of a statute which is purely procedural, because no person has a vested right in any particular course of procedure, but only a right to prosecute or defend a suit according to the rules for the conduct of an action for the time being prescribed.’ In this appeal there is no dispute that the matter in the tribunal was filed in 2017 and Act No. 1 of 2020 came in force on 21st February, 2020 when it was published in the Government Gazette. The question is does the Act take away the vested right of the respondent to refer his application to the tribunal which right he had at the time of filing the suit in 2017?. As rightly submitted by Mr. Baraka the respondent will have to start against by issuing ninety days notice to the Attorney General, Mbozi District Council, Haraka Village council and serve the same to the Office of Solicitor General, the duty and obligation he did not have when the application was filed in the tribunal in 2017. Further reading the said amendments it did not provide expressly or by necessary intendment of Parliament that it was purely procedural and had to apply retrospective. 11 The appellant argued that the respondent will not be prejudiced as they are, in the circumstance of this case the respondent will be prejudiced because starting all the process afresh the respondent may be caught with other requirements which at the time of instituting the case was not applicable or might find the matter time barred. In Joseph Khenani (Supra) the court was faced with similar scenario the appellant referred the labour dispute to the Commission for Mediation and Arbitration, before his case was finalised the Public Service Act was amended and introduced the new requirement of public servant exhausting all internal remedies before resorting to labour dispute resolution. The court then held; ‘... we think to hold that the appellant ought to have withdrawn his matter before the CMA with a view to complying with section of section 32A of the Public Service will be too much an overstatement and will, in our considered view, leave justice crying. The appellant will certainly be prejudiced....’ I have read the case of Lala Wino (supra) relied by the appellant and found that the court did not deal the test of prejudice to parties which was discusses in the subsequent cases of Joseph Khenani (supra) and Raymond Cost (supra). Although the amendment of procedural applies retrospective even to the pending case, the test to apply such rule is 12 extent of prejudice to the parties. As a I have discussed elsewhere in this judgment, it is my conviction that the present case falls within the scope and purview of the phrase "unless there is good reason to the contrary’’. That is to say, there exist in the present case good reason not to adhere to the retrospective application of the procedural amendment under consideration. Holding that the respondent was supposed to withdraw her case which had lasted in the tribunal for four years and partly heard so as to comply with the new amendment, will be over statement of the law by creating new obligation, or imposes a new duty, or attaches a new disability in regard to events already past to the respondent. From the discussion above, the additional ground fails. Consequently, I dismiss the appeal. Since the 2nd and 3rd appellants are government entities, and due to the relationship between the 1st Appellant and the respondent, I order no costs. V.M. NONGWA JUDGE 09/07/2024 Right of appeal fully explained. 13 DATED and DELIVERED at MBEYA this 9th day of July, 2024 in presence of Mr. Jerry January SA for the 2nd and 3rd appellants also holding brief of Mr. Omary Issa Ndamungu advocate for 1st appellant and Mr. Steward Ngwale advocate for the respondent. V.M. NONGWA JUDGE 09/07/2024 14