Judgment MRINGI MAGAFU VS MTUMWA NYALWAMBWA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 15909 OF 2024 (Arising from the Decision of the District Land and Housing Tribunal for Ukerewe at Nansio in Misc. Land Application No.116 of 2023, Dated 31st Day of May, 2024 before Hon. Kato C. Chairperson, Originating from Land Dispute No. 2 of 2023 before Kakukulu Ward Tribunal) MRINGI MAGAFU……………………….…………..……………………..…..APPELLANT VERSUS MTUMWA NYALWAMBWA………….……………………..…….……1st RESPONDENT MANDEGE NYALWAMBWA…………………………………..…….…2nd RESPONDENT MAJULA MASATU……………………………………………..….…….3rd RESPONDENT JUDGMENT 27th August & 25th September, 2024 ITEMBA, J. The appellant above, challenges the decision of the District Land and Housing Tribunal for Ukerewe at Nansio (the DLHT) in Misc. Land Application No. 116 of 2023. Briefly, the matter started at the Kakukulu Ward Tribunal on 31/08/2023 when the tribunal sat to hear the complaint by the appellant that the respondents have trespassed to his suit land which he was allocated by Village council. The Ward Tribunal on 20/11/2023 delivered its judgement declaring the appellant to be the owner of the suit property. Aggrieved the respondents herein successful filed revision before the DLHT. The DLHT quashed the proceedings of the trial tribunal for want of jurisdiction with 1 costs. It went ahead to allow the respondents to use the land. Hence this appeal which is pegged on three grounds of appeal that:- 1. The DLHT erred in law and fact for failure to direct the matter to start at the Ward tribunal; 2. The Chairman erred in law and fact fro granting right to use the disputed land to the respondents basing on improper proceedings; 3. The Chairman erred in law and fact for granting right to use the disputed land to the respondents without adhering to rules of revisional powers; and 4. The Chairman erred in law and fact to condemn the appellant to pay costs on basis of procedural irregularities occasioned by the Kakukulu Ward Tribunal. When the appeal was tabled for hearing Advocate Bernard Msalaba represented the appellant whereas the respondents enjoyed representation of Advocate Octavian Kamugisha. Mr. Msalaba argued all grounds of appeal jointly that there is no dispute that the Ward Tribunal had no jurisdiction to hear land dispute but the DLHT erred by failing to issue a proper order as way forward, following quashing the decision of the Ward Tribunal. According to him the practice of the court is that once the proceedings are nullified the court issues a decision for a retrial in a body with competent jurisdiction. He gave an example of the 2 Court of Appeal decision in Professor TL Malyamkono v Sylvetser Oriyo Civil Appeal no 93/2021. He submitted further that the DLHT erred in ordering the respondents herein to keep on using the land in dispute while he had quashed the proceedings which was in favor of the appellant. Lastly, he faulted the DLHT for awarding costs to the respondents while the irregularity was done by the Ward Tribunal. I was referred to the case of Abdul Karim Abdul Makbel v Zubeda Jan Mohamed Land Appeal 28 of 2018 (unreported) to the effect that when the err is made by court it is unfair and unequitable to issue costs to the party. I was accordingly moved to allow the appeal and order the matter to start afresh in a competent forum. Replying, Mr. Kamugisha submitted that, when the tribunal issued its decision, it directed the parties to file a fresh suit in a court with jurisdiction. That, the decision is to be read not in isolation but all the orders therein. With regards to an order allowing the respondents to use the disputed land, Mr. Kamugisha submitted that the court had a duty to maintain the status as it was prior to filing of the case before the trial tribunal when the respondents were using the land. With regards to costs, he submitted that, they were properly imposed aiming at restoring a party in the previous position prior to filing of a suit. In 3 this, he referred to the case of Nkaile Tozo v Philemon Musa Masilanga [2002] TLR 276. He prayed for the appeal to be dismissed. In rejoinder it was submitted that, is not true that the DLHT in issuing its order was maintaining a status quo because the suit plot was used by both parties interchangeably. That, the case of Nkaile Tozo is distinguishable because in this case there is no party which is declared a winner. I will now determine the merit of this appeal. First it should be noted that the Ward Tribunal had no jurisdiction to entertain the dispute but to mediate the parties. Therefore, there is no dispute that the DLHT had no jurisdiction to entertain the application emanating from the Ward Tribunal because it emanated from a nullity. The 1st 2nd and 3rd grounds of appeal interrelate and they will be answered jointly. According to Mr. Msalaba, practically, the DLHT was supposed to order the matter to be filled at the competent forum instead, it ordered the respondent to use the land. Mr. Kamugisha sees no fault in the decision of the DLHT because reading the whole judgement, the DLHT directed the parties to file a fresh suit in a court with jurisdiction and it was necessary to maintain the status quo by allowing the respondent to have the 4 use of the suit land as before. Having considered the arguments by both parties I disagree with both counsels with regards to ordering the matter to start afresh. The respondents’ counsel was incorrect because, reading the whole ruling of the DLHT there is nowhere it was directed the matter to be filed afresh before the court/tribunal with competent jurisdiction. I also disassociate myself with the argument by the appellants’ counsel that the DLHT was required to direct the parties to initiate fresh proceedings because there is no law compelling the tribunal to do so. Therefore, in my view the DLHT cannot be faulted for failure to direct the parties on the way forward expressly. With regards to allowing the respondent to use the land, the DLHT said at page 3 that; “…Lakini pia; Baraza linafuta hukumu/suluhu na amri zote na kutengua mwenendo mzima wa shauri la Baraza la Kata Kakukuru kupitia maombi Namba 02/2023 kwa kuwa batili kisheria. Waleta maombi waendelee kutumia eneo lao.” (emphasis added) In my view, having nullified the proceedings of the Ward Tribunal, the DLHT had no power to allow any of the parties to use the suit land. The phrase ‘eneo lao’ which literally means “their land” has an effect of declaring 5 the respondents as lawful owners while the matter was not determined on merit basing on the fact that the trial tribunal proceedings were declared a nullity for want of jurisdiction. I therefore agree with Mr. Msalaba that the DLHT erred to grant the right to use the suit land to the respondent. The second and third grounds of appeal has merit. Coming to the 4th ground of appeal, the DLHT is faulted to award costs to the respondents considering the fact that the fault leading to nullification of proceedings were committed by the trial tribunal not the appellant. According to the respondents’ counsel the DLHT was correct. I am aware that, award of costs is discretional powers of the tribunal. Regulation 21 of the Land Disputes (District Land and Housing Tribunal Regulation, GN No. 174 of 2003 provides that; “The tribunal may make such orders as to costs in respect of the case as it deems just.” However, such discretion has to be exercised judiciously considering the circumstances of the matter at hand. in the case of Nkaile Tozo vs Phillimon Musa Mwashilanga, (supra) it was held; “The award of costs in not automatic. In other words, they are not awarded to the successful party as a matter of course. Costs are entirely in the discretion of the court and they are awarded 6 according to the facts and circumstances of each case. Although this discretion is a very wide one like in all matters in which courts have been invested with discretion in awarding or denying a party his costs must be exercised judicially and not by caprice “(emphasis added) In the case of Francis Nyamiti vs Baragi Bomani, Land Appeal No. 14 of 2022 (unreported), factors to be considered to grant or reject costs were outlined to be; one, mistakes occasioned by unfocussed legal advice to a party; two, unintended mistakes of parties; three, time and resources spent in the matter by the opposite party; four, illegalities/irregularities raised by the court. The court went further to state that; “…It is the view of this court that costs awarded not judiciously may tend to shut the doors of the courts as litigants or the public will become afraid to seek such important legal redresses.” In this matter, it is undisputed that, the mistake was committed by the trial Ward tribunal which determined the application without jurisdiction. The appellant in my view, being a layperson, was seeking for justice without necessarily knowing the limits of the trial tribunals mandate. It is now a requirement of law according under sections 45 and 46 of the Written Laws (Miscellaneous Amendments) (No. 3) Act, Act No. 5 of 2021 that jurisdiction of a ward tribunal is limited to resolution of the dispute and when 7 it fails it refers parties to the DLHT. The appellant therefore was correct to refer the matter to the ward tribunal. The ward tribunal had a duty to adhere to its limit not to determine the matter on merit. In my view, the DLHT was not correct to award damages considering the circumstances and the outcome to the matter. The fourth ground thus has merit too. Consequently, the appeal is partly allowed basing on the 2nd, 3rd and 4th grounds of appeal, the order of the DLHT allowing the respondent to use the suit land is quashed and the award of costs is set aside. Considering the circumstances of the appeal, I make no order as to costs. It is so ordered. Right of Appeal fully explained to the parties. DATED at MWANZA this 25th September, 2024. L.K.J. ITEMBA JUDGE 25/9/2024 Judgment delivered in the presence of the appellant, the 1st respondent and in the absence of the 2nd and 3rd respondents and Ms. Gladness, RMA. 8