MARY MARTIN VS SESILIA MARTIN

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MWANZA SUB REGISTRY) AT MWANZA LAND APPEAL NO 8215 OF 2024 (Arising from Land Application No. 54 of 2018 at the District Land and Housing Tribunal for Mwanza dated on 22nd February, 2024, Hon. Kato C. Chairman) BETWEEN MARY MARTIN (An administratrix of the estate of the late TELESIA MALIMI)................................... APPELLANT VERSUS SESILIA MARTIN.................................................... RESPONDENT JUDGEMENT 27h& 29thAugust, 2024 A. MATUMA, J. In the District Court and Housing Tribunal for Mwanza, the appellant sued the respondent her biological sister claiming for ownership of the suit land situated at Ngudama village-Bulemeji within Misungwi District. The suit land is alleged to be one acre valuing at Tsh. 5,000,000/ = i The appellant herein who was the complainant at the trial tribunal alleged that the suit land is part of the estate of the late Teresia Malimi who is the biological mother of both the Appellant and the Respondent. The said Teresia Malimi died intestate in 1987. After a full trial, the trial tribunal adjudged against the appellant after having been satisfied with the evidence on record proving that the suit land was not the property of the late Teresia Malimi but a lawful property of the respondent. The Appellant became aggrieved by such decision hence this appeal in which two grounds were preferred namely; - /. That the trial chairman erred in both facts and law for determining the dispute in favor of the respondent who was just a caretaker of the property in dispute. ii. That the trial chairman erred both in facts and law for failure to properly analyze evidences adduced by the appellant hence reached to a wrong decision. At the hearing of this appeal, both parties were present in person and were represented by learned advocates whereas the appellant was represented by Mr. Yuda Rudovick Kavugushi and the Respondent was represented by Mr. Haruna Francis Mohamed. Mr. Kavugushi learned advocate prayed to add two more grounds and drop out the primary grounds supra. The grounds which he prayed to add are; i. That the trial tribunal had no jurisdiction to entertain the suit which had not passed through mediation by the Ward Tribunal in accordance to section 13 of the Land Disputes Courts Act. ii. That the proceedings of the trial tribunal are a nullity for the change of the trial chairman without assigning reason. Mr. Haruna Francis Mohamed learned advocate opposed both prayers on the ground that addition of the grounds at the hearing date would be prejudicial to his client because they will be taken by surprise of the new grounds of appeal. He thus insisted that the appeal be heard and determined on the primary grounds appearing in the Petition of appeal supra. For the reasons stated in the proceedings I granted the prayer of the Appellant's counsel to add the two grounds but declined to allow him to drop out the primary grounds which are in respect of evidential weight. I thus directed the parties to address me in both the newly added grounds and the ground relating to the weight of evidence/' 3. Mr. Kavugushi started to address the court on the ground relating to jurisdiction of the court. He submitted that at the time when the trial tribunal started to hear this case, section 13 of the Land Disputes Courts Act had already been amended through the Written Laws (Miscellaneous Amendment) Act of 2021 which came into force on the 21/10/2021 in which the District Land and Housing Tribunals were fettered jurisdiction on land matters unless the dispute had started in the Ward Tribunal for mediation and a certificate to that effect issued. The learned advocate further argued that the amendment being procedural acted retrospectively to affect even the already pending cases including the one at hand. To that effect the learned advocate cited the case of Hassan Ahmed Kasuku versus Ramadhani Yahya, Land Appeal no. 72 of2023 (HC) at Mwanza. He concluded this ground by faulting the trial tribunal for having proceeded to determine the matter without returning the parties to the Ward Tribunal for mediation. In the second ground the learned advocate submitted that the records shows that there was a change of the trial chairman from Hon. Murirya N. to Hon. Kato without assigning reasons. He cited Order XVIII rule 10 (2) of the CPC to the effect that whenever there isjzhange of Magistrate the grounds of such changes must be stated oh record. He added that the 4 record shows on 24/03/2022 Hon. Murirya chairman withdrew himself from the conduct of the case without stating reasons of his recusal and that even Hon. Kato who took over did not state why he took the case from another chairman. The learned advocate argued that such changes affected the transparency of the proceedings and cited to that effect the case of Saada January Nyambibo versus Debora January Nyambibo, Civil Appeal no. 140 of2020. The learned advocate having argued the two grounds supra did not want to address on the evidential weight on the matter at hand arguing that the two grounds he has argued suffices to nullify the proceedings of the trial tribunal for the matter between the parties to start afresh. Mr. Haruna Francis Mohamed learned advocate on his part opposed this appeal. Responding against the ground of jurisdiction the learned advocate submitted that the amendment of the law as submitted by the learned counsel of the appellant came into force when this case had already been filed and been pending in court. He argued that although procedural amendment acts retrospectively, it is not always necessary and the court may do away the retrospective effect of the law when there is good cause. He referred this court to the case of Hassan Ahmed Kasuku which was cited by his fellow counsel Mr. Kavugushi. The learned advocate further submitted that it was the appellant who instituted the case and had an advocate throughout and thus was duty bound to address the trial tribunal on the matter but stayed quiet until when the judgment was given against her which is a clear indication that she had bad intent to the prejudice of the respondent who is favoured by the weight of evidence. He argued that remitting the parties to the Ward Tribunal to start afresh shall serve no useful purpose. On the second ground the learned advocate argued that the change of chairman was due to the withdraw of the predecessor chairman. On the weight of evidence, the learned advocate argued that the evidence on record favored the respondent because she explained how she got allocated the suit land by the village authority in 1974 and her evidence was corroborated by John Elikana Dorna who was the chairman in the locality and the land allocating officer. In his rejoinder submission Mr. Kavugushi mainly reiterated what he argued in chief. Having heard the parties for and against this appeal I will start to address the complaint relating to jurisdiction of the trial tribunal. It is my firm finding that such complaint is without any substance and is brought as an afterthought as rightly argued by Mr. Haruna Francis Mohamed learned advocate. It was the appellant herself who instituted such a case at the tribunal and thus she was at liberty to withdraw the same after considering that the jurisdiction of the trial tribunal was fettered by the stated amendment. She did not do so until when she lost the battle. Mr. Yuda Rudovick Kavugushi in his rejoinder argued that failure of the appellant to notify the tribunal of the amendment did not confer jurisdiction to the tribunal as jurisdiction is not for the parties to decide. Well, jurisdiction is a legal issue in which even if the parties stay mute the court must satisfy itself of the requisite jurisdiction. In the instant matter as rightly submitted by the respondent's counsel procedural amendment does not apply retrospectively in all cases and at all circumstances. Upon certain circumstances in certain cases the courts of law may not give retrospective effect to the procedural amendment of a certain law. That can be seen in the court of appeal decision in the case of FelixH. Mosha and Another versus Exim Bank Tanzania Limited, Civil Reference no. 12of2017\N\\\c[\ was quoted in Hassan Ahmed Kasuku's case supra. The court of appeal held; 7 "We are mindful of the position of the law that when an amendment of the law affects a procedural step or matter only, it acts retrospectively unless good reason to the contrary is shown" The same position was stated in the case of The Director of Public Prosecutions versus Jackson Sifaei Mtares & three others, Criminal Appeal no. 2 of 2018 m which the court of appeal held; "Normally, it may not be made to apply retrospectively where the said legislation affects the substantive rights of the potential victims of the new law. On the other hand, however, if it affects procedure only, prima facie it operates retrospectively unless there is good reasons to the contrary" On the strength of the two quoted decisions supra, the court may do away with retrospective effect of a procedural amendment when there is good reasons to that effect or when the substantive rights of the parties are affected. In the instant matter I find good cause for the case to have proceeded at the trial tribunal without necessarily remitting the parties to the ward tribunal to start afresh. This is because; One, at the time of amendment so alleged, this suit had already been pending in the tribunal for almost four years and taken a significant step, tt/vrould not be the interest of justice to drag back the parties who have already spent four years in court for them to start at point zero. Two, the records of the trial tribunal are clear to the effect that the parties before getting to the trial tribunal got reconciliated and or mediated by the ward tribunal of Ngudama. This is seen at page 15 of the typed proceedings when the appellant herself was testifying. She clearly stated under oath that; - "Usuluhishi tulienda baraza la Ngudama" With such evidence, the appellant was telling the trial tribunal that mediation step at the Ward tribunal was not skipped. In that respect, the parties were mediated and or reconciliated at the ward Tribunal and thus the amendment requiring the parties to pass through ward Tribunals for mediation or reconciliation was not offended because the purpose of such amendment was already achieved by the parties in the instant matter. Three, the amendment so argued do not provide that if in certain cases the parties had already passed through mediation or reconciliation at the Ward tribunal such prior mediation or reconciliation would have no legal effect for the purposes of such amendment. More so, I find the ground to have been brought as a technical room to frustrate the findings of the trial tribunal against the spirit of the law both the civil procedure code and the constitution of the United Republic of 9 Tanzania in which Courts of law are argued to dispense justice without being tied with technicalities. Thus, for instance, sections 3A (1) (2), B (1) (a) (e) of the Civil Procedure Code as amended by section 6 of the written laws (Miscellaneous Amendments) Act No. 8 of 2018 introduced the overriding objective within which courts of law are required to interpret any enacted law. The purpose of overriding objective of the law is to facilitate the just, expeditious, proportionate and affordable resolutions of all matters governed by law. Applying such overriding objective, I don't see any interest of justice to quash the substantive proceedings which are not challenged by either party just to remit them back to the ward Tribunal for mediation while the Appellant herself declared that they had already been mediated by Ngudama Ward Tribunal and the fact that this case since it was started at the trial tribunal to date it is almost seven years. Again, articles 107 A (2) (b) (e) of the constitution of the United Republic of Tanzania requires dispensation of justice without undue delay and avoidance of technicalities which might be prejudicial to the substantive rights of the parties. The same provides; "Katika kutoa uamuzi wa mashauri ya madabna jinai kwa kuzingatia sheria, mahakama zitafuata kanuni zifu&fazo, yaani - io (a), kutochelewesha haki bila sababu za msingi. (e). kutenda haki bila kufungwa kupita kiasi na masharti ya kiufundi yanayoweza kukwamisha haki kutendeka." From such article of the Grundnorm, I cannot see any interest of justice in taking back to the Ward Tribunal these too old parties (the appellant 67 years old as of 7/11/2022 when she testified at the tribunal and the Respondent 75 years old as on 11/05/2023 when she testified at the tribunal) because that would not serve any better interest to either party. It would be delaying their substantive rights which can be achieved from the proceedings at hand against which no substantive complaint has been made. Not only that but also, section 45 of the Land Disputes Courts Act provides that appellate courts should stand by substantive justice as against any procedural error that might have been committed by land tribunals but did not occasion any failure of justice. In that respect failure of the parties to be remitted back to the Ward Tribunal did not occasion any failure of justice. The appellant's counsel did not as well address anyhow that the appellant suffered any prejudice as a result of the^omission of the trial tribunal to remit the parties back to the wjurTtribunal. The ground is thus raised as a game of funny which do not aim to achieve any useful purpose. I therefore, dismiss this ground of complaint for the afore stated reasons. In the second ground the appellant's counsel argued that there was change of the trial chairman without reasons being assigned and even the trial chairman withdrew himself without giving reasons. I find that this ground is without any merit because the records are very clear in both why the reassignment was made and why the honourable predecessor chairman withdrew himself from the conduct of the matter. As to why the case file was reassigned to honourable Kato from honourable Murirya, the proceedings at page 6 shows that the reassignment was made due to the fact that the predecessor chairman had withdrawn himself from the matter. That is the reason for the reassignment. But as to why Honourable Murirya withdrew himself the records are very clear at page 5 of the proceedings that the appellant herself raised accusations that there was a corruption smell because the other party had sold three cows. These accusation was made by the appellant despite of her advocate Mr. Nestory Joseph to have addressed the tribunal that they were ready for hearing; "Nestory Joseph, wakili kwa niaba ya mdai sisi tupo tayari kusikiliza" 12 The said advocate having addressed as such, the appellant could not control her mouth and raised accusations; "Wanasema wameuza ng'ombe watatu" These were words tending to accuse the trial chairman that he will not do justice because the opponent party has sold three cows. It was immediately after such unwarranted accusations the trial chairman recused himself and ordered that the case file be remitted to relevant authority for reassignment; "Shaun lirudi kwa msajili apewe mtu mwingine" In the circumstances, the reassignment was instigated by the appellant herself when she tried to intimidate the trial chairman that three cows were sold in the meaning that she had lost faith to honourable Murirya because there was some proceeds of the three cows by her opponent. Any reasonable chairman could take the step taken by Hon. Murirya because any negative outcome on the part of the appellant in the matter would have been automatically connected to the accusations of corruption prior made by the appellant. Therefore, the allegations that there was no reasons for reassignment and or withdraw is unfounded. But again, there was no any prejudice to the parties because the case was whole heard by the successor chairm§j3<This was after the appellant 13 herself through her advocate to address the court that she wanted the matter to start afresh. In other words the appellant was not even confident with the proceedings recorded by Hon. Murirya. Her advocate addressed the successor chairman; "Naomba tuanze Ushahidi upya na waheshimiwa wenyeviti walishajitoa na wajumbe wa baraza ni wapya, na kwa kuwa shahidi wa kwanza hakumaliza kutoa Ushahidi, tunaona ni busara kuanza upya usikiiizaji wa shauri hili" The respondent had no problems with such prayer. She conceded; "Mjibu maombi: Ni sawa tuanze Ushahidi upya" Thereafter the case started afresh and was accordingly heard. I find no any prejudice to the appellant for the change of the trial chairman because she gave all her evidence before the same chairman and all other witnesses for both parties were heard by the same chairman who was able to see the demeanor of each witness and assess their respective credibility. For the afore stated reasons I dismiss this second ground of complaint. 14 In respect of the rest two primary grounds, the appellant declined to address them on her predetermined outcome of the new grounds raised at the hearing of this appeal. On his part, the respondent's counsel as reflected above argued that the respondent had strong evidence compared to that of the appellant which was so weak. The two grounds are both challenging the decision of the trial tribunal to have decreed the Respondent as the lawful owner of the suit land while the appellant alleged that the Respondent was just a care taker of the property in question. Having gone through the proceedings of the trial tribunal I find that the trial tribunal properly reached to its decision. This is because the appellant throughout her evidence stated that the Suitland is the property of her late mother but she had no substantive evidence to back up her allegations. She alleged that the Respondent was given such land by the village authority on behalf of her late mother but did not state how did she came aware of such allegations/facts. She testified at page 12 of the proceeding that; - 15 "Hikuwa tarehe 28/07/1974 karibia saa kumi aiikuja katibu kata- Buiemeji akasema kesho yake kuna upimaji wa Kijiji na mama anatakiwa kuhamishwa. Tarehe 29/07/1974 mama akaenda kwenye upimaji na Secilia naye akaenda kwenye upimaji siku hiyo hakupimiwa" From such quotation of the appellant's evidence, it is obvious she did not in person go to the village authority and whatever transpired on that date to her was out of her own knowledge but hearsays. But this witness now the appellant went on at page 13 of the proceedings that on 30.07.1974 the Respondent went herself without her late mother and was allocated the suit land on behalf of her late mother; "Tarehe 30/07/1974 Seciiia akaonyeshwa eneo ia mama na akasema aiiandikwa yeye na kamati ya ugawaji wakabishana naye na kuamua eneo aandikwe Marko Martin (kaka yetuj" All these shows that the appellant was giving hearsays. She was not present at the time the Respondent was being allocated such land to establish that she was allocated on behalf of her late mother. She did not tender any document or call any relevant officer from the allocating committee or the village authority tq support her that the suit land was allocated to her late mother but the respondent was entrusted as a care taker. To the contrary the Respondent gave tangible evidence to the effect that she was allocated such suit land while her relatives including the appellant were not interested with village life because they lived in town. They all went in town but she personally approached the village and was allocated such suit land since 1974, developed it, took her mother and lived with her until her demise, and she is still there to date. She testified; "Mwaka 1974 ni/ienda kuchagua sehemu ya kukaa wakati wa operation vijiji kwani waiikuwa wanagawa maeneo kwa watu wazima zaidi ya miaka 18. NHienda nikapata eneo, wenzangu (ndugu) wakasema wao mashamba Hapana wanaishi mjini." This evidence is materially corroborated by the appellant herself who testified that the respondent told them on the same day of the allocation that she had registered her name (See the quotation of the appellant's evidence Supra). That means since day one i.e 30/07/1974 the respondent was interested to own the suit land and that is why she made her name to be registered in the village authority and informed her relatives accordingly. The respondent was further corroborated by DW2 John Elikana Doma (78 years old at the time he testified) who was the chairman in the village authority. He testified that the suit land was allocated to the respondent and not their late mother. "Mwaka 1974 ni/ikuwa mwenyekiti na ku/ikuwa na zoezi la operation vijiji watu wanagaiwa viwanja na mashamba. Seci/ia Martini aiigawiwa kiwanja wakatihuo. Kiwanja aiichopewa aiikiendeieza na anaishipale" During cross examination he insisted that the late Teresia Malimi did not seek any allocation of land nor was allocated any land but she decided to live with her daughter, the respondent. In that respect, we cannot fault the findings of the trial tribunal. I accordingly uphold its decision and proceed to dismiss this appeal with costs. The appellant is further condemned costs of the suit at the trial tribunal to the respondent. Right of further appeal is explained. It is so ordered. Judge 29/08/2024 18