MZIBA JEREMIAH

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA LAND CASE APPEAL NO. 6896 OF 2024 (Arising from Consolidated Land Appeal No. 47, 48 and 49 of 2021 from the District Land and Housing Tribunal of Ukerewe; originating from Civil Case No. 14, 15 and 17 of 2021 of Kagunguli Ward Tribunal) MZIBA JEREMIAH………………………….………………………………1ST APPELLANT SYLVIA EDWARD…………………………………………………………..2ND APPELLANT NABINA EDWARD………………………………………………………….3RD APPELLANT MALAGO MASAGA…………………………………………………….……4TH APPELLANT MAJANI MATANI…………………………………………………………..5TH APPELLANT MAFURU MASATU………………………………………………………….6TH APPELLANT MHOJA MWANGWA……………………………………………………….7TH APPELLANT SOSPETER MKAMA………………………………………………………..8TH APPELLANT VERSUS JOVINUSI SOKANYA JOSEPH.……………………………………………RESPONDENT JUDGMENT 18th June & 28th June, 2024. Kilekamajenga, J. In the Ward Tribunal of Kagunguri within Ukerewe District, at different times, the respondent sued several people including the appellants in this case. Precisely, he filed Civil Case No. 14, 15 and 17 of 2021. The respondent alleged to have leased his land to the appellants who later claimed ownership over the same land. The respondent lost the case in the Ward Tribunal and appealed to the District Land and Housing Tribunal of Ukerewe. He filed three different appeals, namely Land Appeal No. 47, 48, 49 of 2021 which were consolidated for an expedient disposal. 1 However, the District Land and Housing Tribunal nullified the decision of the Ward Tribunal and ordered the respondent to occupy and use the land. The appellants appealed to this court on four grounds. When appeared for a hearing, the appellants were represented by the learned Advocate, Salim Ahmed Fundikila whereas the respondent appeared in person. In expounding the grounds of appeal, the appellants’ counsel argued that, in the list of respondents, one of them is Merry Fortunatus who, however, does not appear in the records of the District Land and Housing Tribunal. Therefore, the decision of the District Land and Housing Tribunal may affect her fate contrary to Article 13 of the Constitution of the United Republic of Tanzania. On the second ground, the counsel submitted that, the District Land and Housing Tribunal erred in quashing the decision of the Ward Tribunal on the mere reason that it was not fully constituted. In his view, the Ward Tribunal was properly con- stituted. Furthermore, the District Land and Housing Tribunal, after nullifying the decision of the trial tribunal, wrongly granted justice to the respondent over the contested pieces of land. Furthermore, according to the evidence adduced during the trial, the size of the disputed land exceeded the pecuniary jurisdiction triable by the Ward Tribunal. Based on this point, the counsel urged this court to quash the proceedings of the Ward Tribunal and set side the decision thereof. 2 On the other hand, the respondent argued that, the disputed land was in pieces hence the pecuniary jurisdiction does not exceed three million Tanzania Shillings. He also disputed the allegation that Merry Fortunatus was excluded. He further insisted that the land belonged to him. In the rejoinder, the appellants’ counsel insisted that the Ward Tribunal was not vested with jurisdiction to determine the disputed land. The fact that the respond- ent sued the parties separately, does not justify the Ward Tribunal’s jurisdiction over the land. In his view, the decisions of the Ward Tribunal and that of the District Land and Housing Tribunal are not worth standing. On the exclusion of Mary Fortunatus, the record does not leave any doubt that one of the parties was illegally excluded and her rights may be prejudiced. It is apposite at this stage to consider the grounds of appeal advanced by the appellants. On the first ground, the appellants argued assailed the District Land and Housing Tribunal for excluding one of the appellants (Mary Fortunatus) whose fate may be affected by the decision. The quick perusal of Land Appeal No. 47 of 2021 clearly shows one of the parties was Mary Fortunatus. In that appeal, the respondents were Mziba Jeremiah, Mary Fortunatus, Sylivia Edward and Nabina 3 Edward. When the District Land and Housing Tribunal consolidated Land Appeal No. 47, 48 and 49 of 2021, the name of Mary Fortunatus was excluded. I am aware, this might be a slip of a pen because there are no explanations for her exclusion. However, the legal consequences of the party’s exclusion in the decision may be detrimental. I find no good reason in the record to account for the exclu- sion of Mary Fortunatus. This is an error which affects the decision of the appellate tribunal. I find merit in this appeal and hereby allow it. On the second ground, the appellants’ counsel argued that the District Land and Housing Tribunal erred in quashing the decision of the Ward Tribunal on the rea- sons it was not fully constituted. In his view, the Ward Tribunal was duly consti- tuted. Going through the judgment of the District Land and Housing Tribunal, it is evident, in nullifying the decision of the Ward Tribunal, the appellate tribunal rea- soned, among other things, that the Ward Tribunal was composed of four mem- bers namely, Switbert Mswasya, Juma Sabe, Dina Muyaga and Boniphace Kanobo. The first appellant tribunal went on reasoning that, one of those members was a chairperson who is not a member. Furthermore, the chairman argued that, it is not clear whether there was a female among those members. In conclusion, the chairman nullified the decision of the Ward Tribunal because the chairman was not supposed to a member and that there was no female member to constitute 4 the coram. In addressing this point, I am prompted to revisit section 11 of the Land Disputes Courts Act, Cap. 216 RE 2019 which provides that: “11. Each Tribunal shall consist of not less than four nor more than eight members of whom three shall be women who shall be elected by a Ward Committee as provided for under section 4 of the Ward Tribunals Act.” According to the above provision of the law, the Ward Tribunal is normally fully composed when sits with not less than four nor more than eight members. In other words, at any sitting of the Ward Tribunal, the members should not exceed eight and not less than four members. Where the tribunal sits with four members, one of them must be a female and where it sits with eight members, three mem- bers must be female. For the proper interpretation, it is always prudent to read the above law provisions in tandem with section 4 of the Ward Tribunals Act, Cap. 206 RE 2019 which provides that: “4. (1) Every Tribunal shall consist of— (a) not less than four nor more than eight other members elected by the Ward Committee from amongst a list of names of persons resident in the ward compiled in the prescribed manner; (b) a Chairman of the Tribunal appointed by the appropriate authority from among the members elected under paragraph (a). (2) There shall be a secretary of the Tribunal who shall be appointed by the local government authority in which the ward in question is situated, upon recommendation by the Ward Committee. 5 (3) The quorum at a sitting of a Tribunal shall be one half of the total number of members. (4) At any sitting of the Tribunal, a decision of the majority of members present shall be deemed to be the decision of the Tribunal, and in the event of an equality of votes the Chairman shall have a casting vote in addition to his original vote. (Emphasis added).” In the light of section 4 of the Ward Tribunals Act, the chairman of the tribunal is always appointed among the members and in case of an equality vote, he/she has a casting vote. It is therefore illogical to argue that, the chairman is not among the members. In fact, under section 14 of the Land Disputes Courts Act, the chair- man is considered a member presiding over the Ward Tribunal. For clarity, the section provides that: “11. (1) The Tribunal shall in all matters of mediation consist of three mem- bers at least one of whom shall be a woman. (2) The Chairman to the Tribunal shall select all three members including a convenor who shall preside at the meeting of the Tribunal. (3) In the event of the equality of votes, the member presiding shall have a casting vote in addition to his deliberative vote. (4) The Ward Tribunal shall, immediately after settlement of a dispute rec- ord the order of mediation.” (Emphasis added). Furthermore, in this case, the Chairman of District Land and Housing Tribunal ar- gued that, the Ward Tribunal lacked a female member in its composition. However, 6 when the Ward Tribunal convened, the members were Juma Sabe, Switbert Nswasya, Dina Mugaya and Boniphace Kanabo. I found no logic for excluding Dina Mugaya from female members. There is no reason to waste the precious time of this Honourable Court analyzing whether Dina Mugaya is a female or not. Unless the contrary is proved, she is a female member making the proper composition of the trial tribunal. I entirely find merit in this ground and allow it. On the third ground, the counsel argued that, the Ward Tribunal was not vested with jurisdiction to determine the dispute at hand because the value of the land exceeded the pecuniary jurisdiction. The perusal of the Ward Tribunal proceedings reveals that, in one of the disputes (Civil Case No. 15), the disputed land measured 8 acres. Principally, the value of 8 acres of land in Kagunguri in Ukerewe may not be less than three Million Tanzania Shillings. Logically, nine families could not have run their agricultural activities for years on a piece of land valued at less than three million Tanzania Shillings. Previously, a Ward Tribunal had no jurisdiction to adju- dicate a land dispute with value exceeding three million Tanzania Shillings. Section 15 of the Land Disputes Courts Act provides that: “15. Notwithstanding the provisions of section 10 of the Ward Tribunals Act, the jurisdiction of the Tribunal shall in all proceedings of a civil nature relat- ing to land be limited to the disputed land or property valued at three million shillings.” 7 The above provisions of the law do not need further interpretation apart from the fact that the trial tribunal acted ultra vires by adjudicating on the disputed land; its value was far beyond the pecuniary jurisdiction vested to the Ward Tribunal. I find merit in this argument and hereby allow it. This ground alone vitiates the proceedings and decision thereof. Furthermore, the appellants’ counsel blamed the District Land and Housing Tribu- nal which, after nullifying the decision of the trial tribunal, went further granting justice to the respondent over the same land. Precisely, the decision of the District Land and Housing Tribunal is marred with serious legal issues. First, the decision, unjustifiably, excluded Mary Fortunatus from being among the parties in the case. Second, the chairman of the appellate tribunal excluded the chairman of the Ward Tribunal from being a member. Third, the chairman found the trial tribunal not fully composed for lack of a female member despite the attendance of Dina Muyaga. Fourth, the chairman, after nullifying the decision of the trial tribunal, unjustly granted ownership to the respondent. Fifthly, the Ward Tribunal acted without powers by determining the land dispute that exceeds three Million Tanza- nia Shillings. Based on the clear reasons stated above, I hereby allow the appeal; quash the proceedings of the Ward Tribunal and that of the District Land and Housing Tribunal and set aside the decisions thereof. The matter is hereby left for any interested party to file a fresh suit in a competent forum. No order as to costs. 8 DATED at Mwanza this 28th day of June, 2024. Ntemi N. Kilekamajenga. JUDGE 28/06/2024 Court: Judgment delivered this 28th Day of June 20234 in the presence of the first, fifth, seventh and eighth appellants and the respondent but in the absence of the second, third, fourth, sixth appellants. Right of appeal explained to the parties. Ntemi N. Kilekamajenga. JUDGE 28/06/2024 9 10