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IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MBEYA AT MBEYA AT MBEYA LAND APPEAL NO. 8473 OF 2023 (From Land Application No.6 of 2023 of District Land and Housing Tribunal for Mbeya Original Ilembo Ward Tribunal Dispute NO. 09 of 2022). MATANI JISAI….………………………………….……………………... APPELLANT VERSUS JEREMIA MASHAKA………………………………………………... RESPONDENT JUDGEMENT Date: 14 June 2024 & 30 July 2024 SINDA, J.: The respondent in this appeal filed the Land Case No. 9 of 2022 at Ilembo Ward Tribunal (the Trial Tribunal) claiming to be the lawful owner of the disputed land. The appellant also claimed to be the lawfully owner of disputed land alleging that he bought the disputed land from the respondent brother. At the end of the hearing the Trial Tribunal issued two decisions. Firstly, was a settlement agreement dated 28 June 2022 where the respondent gave the appellant TZS 500,000/= on the same 1 date, and the appellant agreed to hand over the disputed land to the respondent on or before 20 May 2023. Secondly, on 13 September 2022 the Trial Tribunal delivered a judgment on the same case in favor of the appellant. Thereafter, the respondent filed Application No. 06 of 2023 at the District Land and Housing Tribunal for Mbeya (the DLHT) for execution of the agreement dated 28 June 2022. The appellant raised a preliminary objection on the ground that the DLHT has no jurisdiction of execution of a judgment from the Trial Tribunal. The judgment which was delivered on 13 September 2022 was not lawfully hence incapable for execution and the Trial Tribunal has no jurisdiction to entertain the dispute. After the hearing, the DLHT dismissed the preliminary objection and ordered the appellant to vacate the disputed land. The appellant filed revision at the same DLHT. The application for revision was confronted with a Preliminary Objection (P.O) from the respondent that the application for revision on Application No. 9 of 2022 delivered on 28 June 2022 was filed out of time and the DLHT has no jurisdiction to revise its own decision. The respondent P.O was upheld by DLHT. Dissatisfied with decision, the appellant filed this memorandum of appeal on the following grounds: 2 1. That the DLHT erred both in law when uphold the PO by the respondent which was not heard or proved. 2. That the trial tribunal was wrong to believe that there was any agreement between him and respondent made on 28 June 2022 thus held that the matter was time barred while ignored her argument contain in affidavit. 3. That the trial tribunal was wrong to say it had no power to intervene its order and when ordered that the said agreement between them was continued unknowingly that the application before it was not against the order of the tribunal but it was about defectiveness and illegalities of the said proceedings of the tribunal and the validity of the same it was not conducted or heard in any tribunal taking into account that there was another land dispute No. 09 of 2022 between the same piece of land and the same parties in the actual ward tribunal meant that even if we assume that the matter was legally conducted before the ward tribunal still it could be res subjudice to the land dispute No. 09 of 2022 though his dispute was not registered. 4. That the 1st appellate tribunal erred both in law and fact for disregarding all grounds of appeal which was advanced before it. 3 5. That the chairman of District Land and Housing Tribunal erred both in law for not giving reasons decision and justification. During hearing both appellant and respondent appeared in personal unrepresented. The appeal was argued by way of written submission. On the first ground of appeal the appellant submitted that the P.O raised by the respondent was upheld without being held on merit. That it was not proved before it but the Trial Tribunal assumed he had conceded after he said that he had no answer. He stated that his statement that “sina majibu yoyote” did not mean that he conceded objection of the respondent. The Trial Tribunal has a duty to make further investigation relation to the P.O. He submitted that it is a position of law that P.O based on allegation cannot sustain. He referred that case of Hezlon M. Nyachiya vs Tanzania Union Industrial and Commercial Workers and Organization of Tanzania, Civil Appeal No. 79 of 2001 (unreported). He was of view that objection raised by respondent was not supposed to dispose application unless there was other evidence to prove in controversy. He argued jointly grounds of appeal number two, three, four and five. He submitted that it was wrong for the DLHT to believe that there was an agreement between them. Also, it was wrong to say that the matter was 4 time barred without proof. He submitted that when the Trial Tribunal held that it had no power to intervene its order must give reasons and provision of the law which prohibit to intervene its order without even considering his affidavit supported application which automatically delt with defectiveness and illegality of proceedings and its validity as it was never conducted before the Trial Tribunal save for dispute No. 09 of 2022 which was decided on his favor. He submitted that the Trial Tribunal did not consider even a single ground contain in affidavit and reply to the P.O. and no sufficient reason was given to justify the decision of the Trial Tribunal. In reply the respondent submitted that it is a principle of law that ground of appeal must emanate from the decision which is being appealed against. The appeal at hand emanates from Land Application No. 6 of 2023 which was on the P.Os raised by the respondent on point of law. He argued that grounds number two and four of this appeal do not emanate from that ruling and drawn order. It was his prayer that the grounds be disregarded by this court because was extracted out of ruling and drawn order appealed against. Regarding the first ground of appeal he submitted that the chairman of DLHT was correct to uphold the P.O raised by the respondent as the 5 appellant application was filed out of time that is sixty (60) days required by law. The appellant filed the application without filing first an application to file the same out of time. he prayed this court to uphold the decision of DLHT. In relation to the second and fourth grounds of appeal he submitted that the chairman of DLHT managed to advance reason for his decision as comprehended on pages 3 and 4 of the ruling. I have gone through the court records, grounds of appeal and submission made by the parties. I will deliberate on the second, third, fourth and fifth grounds jointly. I find that there were two decisions in the file of the Trial Tribunal one is an agreement made on 28 June 2022 that the respondent paid TZS 500,000 to the appellant and the appellant agreed to hand over the farm to the respondent on 20 May 2023. There is also a judgment dated 13 September 2022 in favor of the appellant. Upon perusing the said agreement dated 28 June 2022, I discovered that it was not stamped and sealed by the Trial Tribunal. In that circumstance the said agreement cannot be relied upon so I expunge it from the record. 6 After expungement of the said agreement from record, now I find that this appeal can be disposed under one issue on whether it was proper for the Trial Tribunal to issue a judgment. To begin with, before the amendment of section 13 of the Land Disputes Court Act, Cap. 216 R. E. 2019 (the Land Disputes Court Act) provides that: “13 (1) Subject to the provisions of subsection (1) of section 8 of the Ward Tribunal 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. (2) Without prejudice to the generality of subsection (1), the tribunal shall have jurisdiction to enquire into and determine disputes arising under the Land Act and the Village Land Act Cap. 113 and Cap. 114". Section 13(2) of the Land Disputes Courts Act was amended by the Written Laws (Miscellaneous Amendments) Act, No.3 of 2021 which was published in the Gazette of the United Republic of Tanzania No. 102, Vol. 41, dated 11 October 2021 and read as follows; "45. The principal Act is amended in section 13 by (a) deleting subsection (2)". 7 After amendment of section 13 (2) of the Act by deleted subsection (2) herein, the Ward Tribunal ceased having jurisdiction to inquire into and determine disputes arising under the Land Act and the Village Land Act with effect from the date of publication stated above. In the circumstances, section 14 of the Interpretation of the Laws Act Cap. 1 R.E 2019 gives guidance as follows; "14. Every Act shall come into operation on the date of its publication in the Gazette or, if it is provided either in that Act or in any other written law, that it shall come into operation on some other date, on that date". Based on the above status. Ward Tribunals ceased to have jurisdiction to inquire into and determine disputes arising from the Land Act and the Village Land Act with effect from 11 October 2021 following the publication of the said amendment. The amendment removed the jurisdiction of the ward tribunals to hear and determine land disputes with effect from 11 October 2021, save for mediation over land disputes. The records show that the Trial Tribunal inquired and heard the land dispute between the parties herein and delivered its decision on 13 September 2022. The decision was delivered when the Trial Tribunal had jurisdiction to hear such matters. This was before the amendments to the Land Disputes Courts Act. It is my opinion that the DLHT had jurisdiction to determine the application for execution because the decision was delivered before the amendment. 8 As a result, I allow the appeal and quash the decision of the DLHT and nullify the proceedings and subsequent orders of the Trial Tribunals. I order that the matter be remitted to the Trial Tribunal to start a fresh. Right to appeal is explained. DATED at MBEYA on this 30 day of July 2024. A. A. SINDA JUDGE 9