maruanga appeal

( the HIGH COURT OF UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA LAND APPEAL NO. 14552/2024 (From the decision of the District Land and Housing Tribunal for Nzega in Land Appeal No. 53 of2021, Origin Land Case No. 13 of2021 Itumba Ward Tribunal) MARUANGA MAGANGA..................................................... APPELLANT VERSUS RESPONDENT SHUMBU KISIGILA JUDGEMENT Last order: 30/09/2024 Judgement date: 10/12/2024 MANGO, J The Appellant, Maruanga Maganga institute Land Case No. 13 of 2021 before Itumba Ward Tribunal contesting ownership of a piece of land that measures approximately 16 acres. He alleged that, he acquired ownership over the land via inheritance from his late father. The Respondent also alleged to be a lawful owner of the land. According to the Respondent he purchased land from the Appellant's brother namely, Dunundu Maganga. After full trial, the trial tribunal ruled in favour of the Respondent. The Appellant unsuccessfully appealed before the Nzega District Land and Housing Tribunal via Land Appeal 53 of 2021. He has now preferred the appeal at hand armed with five grounds of appeal which are hereby reproduced as follows: - 1. That, both tribunal and first appellate tribunal erred in law and fact by his act to deliver judgement which is illegal and nullity in the eyes of law 1 2. That, both trial tribunal and first appellate tribunal erred in law and fact by passing and holding decision of a tribunal incompetent to pass judgement 3. That, both trial tribunal and first Appellate Tribunal erred in law and fact by its act to entertain the land dispute whose value is not known for the purpose of certifying its pecuniary jurisdiction 4. That both trial tribunal and first appellate tribunal erred in law and fact by its act to entertain the land dispute whose boundary and location is not properly described 5. That, the first appellate tribunal erred in law and fact by its act to raise the doctrine of estoppel suo motto without affording parties right to be heard to address over the doctrine On 30th September 2024 when the appeal was called on for hearing, the Appellant was represented by advocate Thadeus Frederick Kivurunzi while the Respondent was represented by advocate Salehe Makunga. In his submission, advocate Kivurunzi consolidated the first and second grounds of appeal, third and fourth grounds of appeal, and argued the fifth ground of appeal separately On the first and second grounds of appeal he submitted that, the Trial Tribunal wrongly entertained the matter without jurisdiction. The learned advocate centred his arguments on the amendments made to the Land Disputes Courts Act, [Cap 216 R.E. 2019] via the Written Laws Misc. Amendment Act No. 3 of 2021, GN 102 of 2021 published on 11th October 2021. He argued that, section 45(l)(a) of GN 102 of 2021 repealed section 13(2) of the Land Disputes Courts Act which conferred jurisdiction to Ward 2 Tribunals to adjudicate land matters. He argued further that, the amendments came into operation on 11th October 2021, the date it was gazette. In this, he referred the Court to section 14 of the Law of Interpretation Act, [Cap 1 R.E 2019] which provides that, every Act shall come into operation on the date of its publication in the gazzete. He concluded that, given the fact that Written Laws Misc. Amendment Act No. 3 of 2021 was published on 11th October 2021 via GN 102 of 2021 it became operational since that date. Challenging the jurisdiction of Ward Tribunals to determine land matters, the learned counsel argued that, section 45(l)(a) of GN No. 102 of 2021 repealed section 13(2) of the Land Disputes Courts Act. Thus, the amendments limited jurisdiction of the ward tribunals to only mediating land disputes. Applying the effects of the amendments to the facts in this appeal, the learned counsel argued that, the decision of Itumba Ward Tribunal was delivered on 4th November 2021 which is 26 days after publication of Written Laws Misc. Amendment Act No. 3 of 2021. He is of the view that, the Ward Tribunal acted without jurisdiction. On the remedy for such irregularity, he submitted that, the decision and all proceedings before the tribunals should be nullified. To cement his arguments, he refer the Court to the case of Habiba Kinjengalile vs Tumaini Nnko Land Appeal No. 140 of 20222 High Court of Tanzania, Morogoro sub registry at Morogoro. On the 3rd and 4th grounds of appeal, he submitted that, the Itumba Ward Tribunal entertained a matter which is incompetent before it because the land in dispute was not properly described as required by the law. According to the learned counsel, the land in dispute was not described in terms of its 3 boundaries, size, location, and value. He argued that, failure to describe the land in dispute renders the case incompetent and the remedy is to have the matter struck out. He argued further that, the District Land and Housing Tribunal observed that, the land was not described. Despite noting such irregularity, the first Appellate Tribunal did not take any action to rectify the irregularity. He is of the view that, by ignoring the highlighted irregularity, the decisions of the two tribunals became un-executable. He concluded that, since the District Land and Housing Tribunal did not correct the irregularity, the judgements of the two tribunals should be set aside and the matter be tried denovo so that the irregularity can be rectified. He cited the case of Anastazius Tushabe vs David Karoli Land Appeal No. 18 of 2021 High Court of Tanzania, Bukoba sub registry to back up his arguments. On the 5th ground of appeal he argued that, the District Land and Housing Tribunal erred by raising the doctrine of estoppel suo motto and determining the matter on the same without affording parties with the right to be heard. He is of the view that, such irregularity renders the decision nullity. He also pointed out that, the Appellant raised five grounds of appeal unfortunately the District Land and Housing Tribunal did not determine three grounds of appeal. He added that, the tribunal proceeded further to raise the issue of estoppel and determined the appeal solely on that ground without affording parties the opportunity to be heard. He referred the Court to the case of Mandoo Ami Vs Petro Deemay and Another PC Civil Appeal No. 60 of 2020 High Court of Tanzania, Arusha Sub registry, at Arusha. He then prayed 4 to have the matter tried denovo to rectify the highlighted irregularities and have the matter determined on merits. In his reply submission, advocate Makunga for the Respondent started with the fifth ground of appeal. He submitted that, the proceedings of the two tribunals do not contain any error that occasioned injustice to either parties. According to him, the District Land and Housing Tribunal merely determined matters which were raised and determined by the trial tribunal. He insisted that, there was no any new issue which was raised by the District Land and Housing Tribunal. Regarding the issue of the doctrine of estoppel, he reffered the Court to page 3 -4 of the judgement of the District Land and Housing Tribunal and argued that, the tribunal considered the doctrine of estoppel at its conclusion thus, the same cannot be considered as a new issue that needed parties to address the tribunal on the same. He added that, the doctrine of estoppel was applied by the tribunal when it referred to matters which were already litigated by the parties before the Ward Tribunal. On the 3rd and 4th ground of appeal the learned advocate submitted that, the District Land and Housing tribunal correctly determined the appeal before it. He argued that, the decision of the tribunal based on two grounds of appeal only because disposition of the two grounds of appeal disposed the entire appeal. Thus, determining the remaining two grounds of appeal would have been a mere academic exercise which the District Land and Housing Tribunal found to be unnecessary. On the first and second ground of appeal, he argued that, the allegation that the decisions of the two courts are nullity, is misconceived because, the 5 dispute was filed before Itumba Ward Tribunal prior to amendment of the law. Thus, the Ward tribunal correctly determined the application before it. He concluded that, grounds of appeal raised by the Appellant are merely an afterthought because, it was the Appellant who instituted the case before the Tribunal, and thus, he cannot benefit from his own wrong. The issues of demarcation, size and value ought to have been given by him at the time of filing the case before the tribunal. He is of the view that, the District Land and Housing Tribunal correctly ignored to rectify the irregularity especially after it found the appeal before it to be unmeritorious. In his brief rejoinder, advocate Kivurunzi reiterated his submission in chief. He added that, the District Land and Housing Tribunal ought to have heard the parties on whether the issues settled by Itumba Ward Tribunal are the same as those raised during appeal. Unfortunately, the tribunal presumed that, the issues were the same and proceeded to determine the dispute in favour of the Respondent. He conceded that, it was the Appellant who instituted the matter but argued that, the tribunal ought to have guided the Appellant to give all necessary information that will assist the Tribunal to issue orders capable of being executed. His arguments were basically grounded on the fact that the Appellant is a lay person. I have considered submission by the parties and Court record. I will start with the first and second ground of appeal. From submissions by both parties and Court record, it is not disputed that by the time the trial tribunal delivered its judgement, jurisdiction of the Ward Tribunals on land disputes was limited to mediation only. As correctly argued by the learned advocates, 6 the amendments came into operation immediately after its publication on 11th October 2021. Unfortunately, the amendments did not have a serving proviso for matters which were already pending before the Ward Tribunals. I am the view that, this was done by the legislature purposely because the duty to mediate parties was a primary duty of the Ward Tribunals even before the amendments. Before the respective amendments, section 13(1) of the Land Disputes Courts Act, [Cap.216 R.E 2019] required the Ward Tribunals to mediate parties before adjudicating land disputes referred before them. The provision provided that; "Subject to the provisions of subsection (1) of section 8 of the Ward Tribunals Act, the primary function of each Tribunal shall be to secure peace and harmony in the area for which it is established, by mediating between and assisting parties to arrive at a mutually acceptable solution on any matter concerning land within its jurisdiction." Section 13(4) provided further that; "The Tribunal shall, in all matters attempt to reach a settlement by mediation and may adjourn any proceedings relating to dispute in which it is exercising jurisdiction if it thinks that by so doing a just and amicable settlement of the dispute may be reached." That means, the tribunals were to adjudicate the disputes after a failed mediation. Technically, it means even the dispute in this appeal was mediated and after a failed mediation the Ward Tribunal proceeded to adjudicate it. In such circumstances, the trial tribunal ought to have forwarded parties before the District Land and Housing Tribunal for adjudication immediately after the amendments were published. By proceeding to adjudicate the dispute, the Ward Tribunal acted without jurisdiction. It is trite law that, decisions made without jurisdiction are nullity. In the case of Fanuel Mantiri Ng'unda versus Herman Mantiri 7 Ng'unda and two others,[1995] TLR 155 the Court of Appeal of Tanzania observed that; "The question ofjurisdiction for any court is basic, it goes to the very root of the authority of the court to adjudicate upon cases of different nature..." Since Itumba Ward Tribunal determined Land Case No 13 of 2021 without jurisdiction, I nullify its proceedings, quash and set aside the decision thereof. In the same vein, the proceedings of the District Land and Housing Tribunal for Nzega in Land Appeal No. 53 of 2021 are hereby nullified and its decision is quashed and set aside. Parties are at liberty to file their case afresh by following proper procedure. Due to the fact that, the matter has not been determined on merits and parties might need to file their dispute afresh, I do not award costs. Dated at Tabora this 10th December 2024 Z.D.MANGO JUDGE 8