MARIAM YAKOBO VERSUS MOSHI OMARI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA; DODOMA SUB-REGISTRY AT DODOMA LAND APPEAL NO 22000 OF 2024 [Appeal from the decision of the District Land and Housing Tribunal for Iramba District at Iramba in Land Appeal No 69 and Original Land Dispute No 13 of 2022 of Old Kiomboi Ward Tribunal at Kiomboi] BETWEEN MARIAM YAKOBO….……………………….APPELLANT Versus MOSHI OMARI……………………………RESPONDENT JUDGMENT MRUMA, J. This appeal arises from the judgment and decree of Hon. B. J. Shuma Chairman of the District Land and Housing Tribunal for Iramba District at Iramba delivered on 17th January 2022 in Land Appeal No 69 of 2020 being an appeal by the present Appellant Mariam Yakobo who was the Respondent in Land Case No 13 of 2020 of Old Kiomboi Ward. The learned 1 appellate Chairman dismissed the appeal for want of merits on the ground that the Respondent Moshi Omari had a strong case than that of the Appellant. The learned Chairman found that the Respondent’s claims that she was given her piece of land measuring one acre during operation Vijiji in 1975, was not disputed by the Appellant and that since the other two plots which the Appellant was claiming belonged to the Respondent’s relatives, then the Appellant had no right in them. The learned Chairman’s view was that where the original owner of a land passes away his land forms part of his/her estate and passes to his/her heirs. The Appellant dissatisfied and aggrieved by the said judgment and decree has appealed to this Court and has set out five grounds of appeal which are set out hereunder:- 1. That the chairperson’s decision contain manifest error on the face of the record which resulted in a miscarriage of justice; 2. That the Chairperson’s decision was preferred under procedural irregularities and under the wrong provisions of the law that resulted in a failure of justice; 3. That the Chairperson erred in law and fact as he did not make consideration of the evidence testified by the Appellant before the tribunal; 2 4. That the Chairperson erred in law and in fact in holding that the Respondent is the rightful owner of the disputed land and that; 5. The Chairperson’s decision is fatally defective as it leaves contended material issues of fact unresolved. Based on those grounds the Appellant prayed that this court allows the appeal and sets aside the said judgment and decree of the District appellate tribunal. Efforts to serve the Respondent by ordinary services proved futile as a result of which this court (Kakolaki J), ordered substituted service by way of publication which was effected at Nipashe News Paper of 13th November 2024 at page 18. That service not withstanding Respondent didn’t appear when the matter was called for hearing on 6th March 2025. Thus, the appeal was canvassed viva voce and in her absence. Mr George Mwandu, learned advocate represented and argued the appeal for the Appellant. The grounds of appeal can conveniently be condensed to form two broad issues namely:- (i) Whether or not the learned chairman’s decision contained manifest error, irregularities, were preferred under wrong provisions of the law that resulted into failure of justice and; 3 (ii) Whether or not the learned Chairman failed to make consideration of the evidence tendered and left some material issues of fact unresolved. In order to contextualise the basis of the present appeal, it is necessary to briefly set out the facts of the case as presented before the trial Ward tribunal. The Appellant by way of a complaint to the Ward Tribunal stated thus:- “Mimi namdai Mdaiwa Kuwa Kaninyang’anya eneo langu nililopewa na serikali ya Kijiji toka Mwaka 1975. Natumia hilo eneo hili hadi Sasa” The Respondent disputed the Appellant’s claims. She told the trial tribunal that originally the Appellant had three plots one of which was allocated to her during operation Vijiji and she acquired the remaining two plots after the demise of their original owners Omar Salum and Athuman Salum respectively. To quote from her own statements the Respondent stated thus:- “Mimi nasema Mdai ana plots 3 (tatu) alizokatiwa na Serikali na ploti mbili zilikuwa za Mjomba wake Omar Salum na wa pili ni Athuman Salum na Omar Salum alipofariki ile nyumba ilianguka na huyu Athumani Salum alikuwa ni mjomba wake na Mdai na 4 baada ya kuanguka nyumba zote Mdai alianza Kulima na kujenga nyumba pale alipokuwa anakaa Omar Salum na baada ya hapo alijenga nyumba tena katika eneo la Athman Salum. Nilipoona hivyo Mimi nilimkuta na Kumwambia Mdai mbona umejenga?…..Akanijibu Mimi nitalipia tu hizi Ploti 2 (mbili). Mimi niliona niko peke yangu niliwaita watoto wangu naomba mje mnisaidie maana mimi sijui mambo ya Mashamba. Basi watoto walipokuja tukaenda kwa mdai na kukubaliana kuwa atakuwa analipia tu na tuliandikishiana na kuweka saini na Mdai alisema kwa sasa mimi sina fedha Mje Mwakani mje mchukue fedha. Mara tukienda anasema sina fedha hadi leo 2020 ni miaka minne……………. Kuna siku alitoa kuwa “Mimi sina uwezo wa kutoa hizo fedha Kama ni hivyo chukueni eneo lenu………tuliandikishiana na Mwenyekiti alikuwepo na kutia saini na Kamati ya Mwenyekiti na Kusema kuwa haya Maneno yameisha” Despite of the fact that the Appellant is challenging the way the trial tribunal analysed the factual issues or evidence but also counsel challenged the jurisdiction of the trial tribunal to entertain the dispute on the basis that the value of the disputed plots were not stated therefore 5 pecuniary jurisdiction of the trial tribunal was not established as required by section 10 of the Ward Tribunal’s Act [Cap 206 R.E. 2019]. The parties before the District appellate tribunal were not legally represented by advocates. They argued the appeal casually and viva voce. The learned Chairman delivered his Judgment on 17th January 2022 wherein he dismissed the Appellant’s appeal and confirmed the decision of the trial tribunal declaring the Respondent Moshi Omari rightful owner of the disputed land. In his judgment the learned Chairman first dealt with the Appellant’s contention that there were agreements reached by the parties regarding sale and or lease of the disputed land. The learned District tribunal appellate Chairman was of the view that there was no evidence on the existence of the alleged agreements. In reaching his conclusion the learned Chairman stated thus:- “I have gone through the records of the Ward Tribunal but unfortunately I have not been able to see any agreements tendered before the Ward tribunal to substantiate these claims of the Respondent having agreed to purchase the suit land” In dismissing the appeal, the learned Chairman stated:- “Having found that these plots were given to the Respondent relatives, then the Appellant has no right in the said two plots. If 6 the original allocatees have passed away, then these parcels of land will form part of their estate in death……………in the end the appeal is dismissed for want of merits” In determining whether or not the learned District appellate tribunal’s Chairman was justified to reach the decision that he did, this court being a second appellate court is not obligated and indeed not under a duty to re-evaluate the evidence and material that was placed before the subordinate tribunals to determine whether the learned Chairman made the correct determination. As an appellate court of second instance, this court is bound by the findings of fact made by the lower tribunals and its main obligation is to deal with substantial questions of law raised by the appeal. It can only interfere with a lower court’s decision if there is a significant legal error involved. It cannot re-evaluate evidence presented in the initial trial. As stated hereinabove in the matter before the Ward tribunal parties gave oral evidence and called witnesses to testify on their behalf. The dispute was ruled upon on the basis of the pleadings, oral evidence and submissions of the parties at the first appellate level. Counsel for the Appellant arguing first and second grounds of appeal contended that the decision of the Ward Tribunal is fatally defective because the tribunal 7 proceeded to determine the dispute without first inquiring onto the value of the disputed land in order to find whether or not it had pecuniary jurisdiction to determine the matter. The learned counsel submitted that jurisdiction to entertain a matter is so crucial that courts are enjoined to raise it suo moto at any time whether during the trial or at the appeal level. He stated that in the present matter the District appellate didn’t inquire into pecuniary jurisdiction of the Ward Tribunal to try the dispute as a result of which it fell into an error which need to corrected by this court. Without availing copies to the court the learned counsel referred this court to its own decision in Miscellaneous Land Appeal No 4 of 2022 between Shungu Wiene Versus Jackson Mwasaka HC (Mbeya Registry unreported) and the decision of the Court of Appeal in Criminal Appeal No 586 of 2020 (CAT Mbeya) between Basu & Another Versus Republic (both unreported), where it was held to the effect that the law prohibits matters of fact to be raised at the appellate stage if the same were not raised at the trial but with regards to legal matters the law is firmly settled that they can be raised at any stage including a second appeal stage. The learned counsel stated further that parties in this case didn’t state the value of the disputed land during the trial to enable the tribunal to ascertain whether it had pecuniary jurisdiction to entertain the dispute or not. It is the contention of the 8 learned counsel that failure to ascertain pecuniary jurisdiction of the disputed land is fatal and has occasioned miscarriage of justice because the trial tribunal had no jurisdiction to entertain the matter. In determining the first issue, it is necessary for this court to consider the applicable legal provisions relating to the jurisdiction of land courts. Section 3 (1) and (2) of the Land Disputes Courts Act (1) [Cap 216 R.E. 2019] establishes courts with jurisdiction to entertain disputes or complaints concerning land subject to their pecuniary jurisdiction. Sub- section (2) of Section 3 provides that:- “The Courts of jurisdiction under subsection (1) include: (a) The Village Land Council; (b) The Ward Tribunal; (c) The District Land and Housing Tribunal ; (d) The High Court (Land Division) and; (e) The Court of Appeal of Tanzania. From the list of courts above, the Ward Tribunal is the second level of land disputes courts. and it is established by the Ward Tribunals Act [Cap 206 R.E. 2019. Section 10 (1) of the Act provides that:- 9 (a) Notwithstanding measures imposable by a tribunal under section 17 a tribunal shall in exercise of its jurisdiction be limited to the following (c) In land disputes to land disputes Valued at Shillings 3,000,000/= However, this sealing was removed in 2021. Before the 2021 amendment to the Land Disputes Courts Act, Ward Tribunals had the power to hear and decide land disputes. The amendment removed the power of the Ward Tribunals to hear and decide land disputes and now they are mandated to mediate disputes referred to them by the parties. As the dispute in this matter were commenced before coming into place of the 2021 amendments, I have no doubt that the pecuniary sealing of the Ward Tribunal by then was Shillings 3,000,000/=as provided for According to Black’s Law Dictionary 9th Edition by Bryan A Garner pecuniary jurisdiction is the power of a court to hear and decide a case based on the monetary value of the matter. Counsel for the Aappellant submitted that during the trial parties didn’t state the value of the disputed land as a result of which the Ward Tribunal entertained a matter which it had no jurisdiction to determine. The learned counsel contended that 10 failure to state the value of the disputed land and therefore pecuniary jurisdiction of the matter has caused miscarriage of justice. As stated above, there can be no dispute that parties in this matter did not disclose the value of the disputed land in their respective pleadings or during the trial. The question that arises is whether that defect caused miscarriage of justice. In my view it did not. While I agree with the learned counsel that jurisdiction is fundamental in court proceedings and it can be raised at any stage even at the appellate level, but in my considered opinion it is not every jurisdictional question that can vitiate proceedings and decisions of lower courts or tribunals. In the case at hand for instance, the learned counsel’s complaint is that the trial tribunal did not inquire into its pecuniary jurisdiction before entertaining the matter. He said that the said omission has caused miscarriage of justice. As stated above pecuniary jurisdiction is about the value of the subject matter. For a tribunal or a court to know whether it has pecuniary jurisdiction to entertain a matter or not prior to determining it, it has to know the value of the subject matter or to be precise the land in dispute. In the case at hand parties did not state the value of the land in dispute in either their pleadings or in their evidence in court during the trial. 11 Despite the fact that pecuniary jurisdiction of Ward tribunals is specifically provided for under Section 10 of the Ward Tribunal Act, there is nothing in law that requires a part to state the value of the suit land at the time of instituting the dispute. Similarly there is nothing in the law that obliges the trial tribunal to inquire into the value of the subject matter in order to satisfy itself that it has pecuniary jurisdiction to entertain the matter. Counsel for the Appellant contended that failure by the Ward Tribunal to inquire into the value of the disputed land and therefore satisfy itself on her pecuniary jurisdiction was fatal and has caused miscarriage of justice. In law the term miscarriage of justice entails an unfair outcome in a legal proceedings such as wrongfully findings and conclusions regarding who is the rightful of a property in dispute. The question is whether in the present case the alleged omission by the Ward tribunal to establish value of the subject matter for purpose of jurisdiction caused any miscarriage of justice? As stated earlier, in the first place there is no law that requires the Ward tribunal to make an inquiry onto value of the matters presented to it therefore there were no omission on its part. Secondly throughout his submissions that learned counsel didn’t state or explain any miscarriage on either Appellant or the Respondent. This means there were none. 12 There is nothing in the record which would suggest that failure by the parties to state the value of an acre of land with two locally constructed houses one commonly known as “Tembe” and another a mud bricks house prejudiced any of the parties. In my view where a party alleges that there is procedural irregularities which has caused miscarriage of justice he is duty bound to demonstrate the alleged miscarriage lest of which courts will be entitled to apply the overriding objectve principle which requires courts to dispose justice without much regard or being tied up by technicalities which may hinder justice itsef. The real justice of the case is reached when through evidence a true owner of a property the subject of a dispute is established. Technicalities cannot tell who is the true owner of a property in dispute. In the case at hand the evidence on record clearly showed that the two plots which are in dispute were originally owned by the Respondent’s relatives namely Omari Salum and Athman Salum and that upon their demise they passed to the Respondent by inheritance. Thus, even if this court decides that the matter should be heard afresh because the Ward Tribunal didn’t establish whether it had pecuniary jurisdiction or not, that alone will not change the fact that the plots do not belong to the Appellant. 13 That being the case I find this appeal to have no merits and I dismiss it. As the Respondent did not defend the appeal, I will make no orders as to the costs. A. R. MRUMA JUDGE 12. 3. 2025. 14