NDEKEJA KASHINJE VS WEMBELE CONSTRUCTION

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY

AT TABORA PC. CIVIL APPEAL NO. 16447 OF 2024 (Arising from Igunga District Court, in CivilAppeal No. 27609 of2023, Original Civil Case No, 27 of2023 before Igunga Primary Court atIgurubi) NDEKEJA KASHIN J E....... ................. APPELLANT

VERSUS WEMBELE CONSTRUCTION CO. LTD ......................... 1st RESPONDENT ENG. KISSA ZAKAYO @ KI MWAGA 2nd RESPONDENT

JUDGMENT Date of Last Order 08/10/2024 Date of Delivery: 12/11/2024 KADILU, J. This appeal emanates from the decision of Igunga District Court exercising the appellate jurisdiction. Initially, the appellant had filed a civil case in Igurubi Primary Court against the respondents claiming for the payment of TZS. 11,600,000/= as the outstanding amount out of a total claim of TZS. 12,000,000/=. The appellant claimed that he contracted with respondents to take road construction sand from his land and they would pay him TZS. 12,000,000/=. The respondents paid the appellant TZS. 400,000/= only hence, the outstanding amount was TZS. 11,600,000/=. After the trial, the court ruled in favour of the appellant. The respondents were dissatisfied so, they appealed to the District Court of Igunga which entered judgment in their favour. The decision annoyed the appellant hence, he appealed to the High Court on three grounds as follows:- 1. That, the Magistrate erred In law and fact for holding that the trial court determined questions of land.

2. That, the Magistrate erred in iaw and fact for raising suo motu matters ofjurisdiction of the trial court without affording the appellantthe right to be heard.

3. That, the Magistrate erred in iaw and fact by holding that the trial court had no jurisdiction to determine the case. When the appeal was called on for hearing, the appellant was represented by the learned Advocate Mr. George Mwandu while Mr. Samwel Ndanga, also the learned Counsel appeared for the respondents. Submitting on the first ground of appeal, Mr. George stated that there was no land case before the trial court as indicated in the judgment of the 1st appellate court. It was a normal civil case in which the appellant claimed TZS. 11,600,000/= that arose from the agreement between him and the respondents. According to Mr. George, the agreement was for the respondents to take sand from the appellant's land and pay him TZS. 12,000,000/=. The learned Advocate argued that the judgment of the trial court was clear that the dispute was a civil case. He elaborated that there was no claim of land between the parties, and no issue was framed by the trial court concerning the land matter. Surprisingly, the entire judgment of the 1st appellate court focused on the land dispute which did not exist. Even the grounds of appeal were not concerned with land ownership. Therefore, there was no question of land that called for determination of the 1st appellate court. Concerning the 2nd ground of appeal, Mr. George submitted that the parties were not afforded the right to be heard

regarding the question of jurisdiction raised by the 1st appellate court suo motu. The parties were invited to address the court on the question of land but not a 2 jurisdiction. He, therefore, maintained that the parties were not heard as far as jurisdiction was concerned. About the 3rd ground of appeal, the learned Counsel submitted that the trial court had jurisdiction to determine the civil case before it as per the 1st Schedule to the Magistrate's Courts Act. Since the claim was not over land as alleged, the trial court had full jurisdiction. He finally prayed for the court to allow the appeal and condemn the respondents to pay the costs thereof. In his brief submission, Mr. Samwel Ndanga elaborated that the question of jurisdiction may be raised at any time and that is what the 1st appellate court did. In the trial court, the dispute was concerning land. The learned Advocate referred to Section 167 of the Land Act, Sections 60, 61, and 62 of the Village Land Act, and Section 3 (2) (a) - (e) of the Land Disputes Courts Act. He argued that the respondents being the contractors were shown the area by local authority leaders from which they could take sand. The leaders asserted that the land belonged to the Village. At the same time, the appellant alleged that the land belonged to him. In the circumstance, the dispute was a pure land matter and it had to be determined first

before resolving the question about the alleged agreement between the appellant and the respondents. Mr. George Mwandu rejoined that the provisions cited by Mr. Samwel were irrelevant to the case at hand as they feature nowhere in the records of this case. He refuted the allegation that a land dispute had to be resolved first because the said dispute was non-existent. He cited the case of Unilever Tanzania Ltd v. Benedict Mkasa t/a Benia Enterprises, Civil Appeal No. 41 of 2009 Court of Appeal at Dar es Salaam, 3 in which it was stated that the parties' clauses of the agreement should be respected. In determining the appeal, I will resolve the 2nd and 3rd grounds of appeal jointly as they both fault the District Court for raising a point and resolving it suo moto. Advocate for the appellant contended that the parties were denied the right to be heard after the 1st appellate court asked itself if the primary court had jurisdiction to determine the dispute or not. According to him, the parties were invited to address the court on whether the dispute was a land matter but they were not asked to submit concerning jurisdiction. To him, that was a violation of the natural right to be heard which is the cornerstone of justice administration. In my opinion, the determination about whether the dispute concerned land or not had a bearing on the court's jurisdiction, I hold that view

because ordinary courts in Tanzania have no jurisdiction to determine land disputes. As such, after finding that the dispute was over land, automatically the primary court lacked jurisdiction to entertain it since primary courts are not among the land disputes courts. Therefore, this ground is baseless because the 1st appellate court was not expected to deal with the land issue and jurisdiction aspect in isolation. In resolving the land issue, the concern about jurisdiction was also determined. Regarding the 1st ground of appeal, the appellant asserts that the dispute did not involve land. From records, the appellant agreed with the respondents that they would take sand from his farm and pay him TZS. 12,000,000/=. On the other hand, the respondents argue that they could not pay for the sand because it was taken from the land that belongs to the Village. In that situation, it is evident that the dispute emanated from ownership of the land where the sand was taken from. Whereas the appellant claims the land to be his, the respondents allege that it was a Village Land. A land dispute is any matter related to land Ownership, leases, mortgages, or licenses. In the case at hand, the record reveals that the respondents were given a piece of land by local authority leaders from which to take sand. As hinted, the leaders asserted that the land belonged to the Village. Therefore, the

source of this dispute was land ownership. For that matter, the primary court had no jurisdiction to entertain a matter as per Sections 167 (1) of the Land Act, 62 (2) of the Village Land Act, and 3 (2) of the Land Disputes Courts Act. Under these provisions, exclusive jurisdiction to deal with land matters has been vested in the Village Land Council, Ward Tribunals, the District Land and Housing Tribunal, the High Court, and the Court of Appeal. In resolving land disputes, the jurisdiction of the Village Land Council and Ward Tribunals is limited to conciliation only. I, thus, agree with the decision by Igunga District Court which held that the Primary Court had no jurisdiction over the case because there was a question of land ownership that had to be determined. Coupled with the fact that the dispute was not referred to the ward tribunal for conciliation as required by the law, it is my humble view that the Primary Court of Igunga determined the suit without having jurisdiction. Section 3 (1) of the Land Disputes Courts Act [Cap. 216 R.E. 2019] as amended by the Written Laws (Misc. Amendments) (No. 3), Act of 2021 stipulates that: "... ei/e/y dispute or complaint concerning land shall be instituted in the court having jurisdiction to determine land disputes." 5 In the case of African Barrick Gold Pic r. Commissioner Genera! Tanzania Revenue Authority, Civil Appeal No. 144 of

2018, Court of Appeal at Dodoma, it was held that the jurisdiction of a Court or Tribunal is a creature of statute hence, as a matter of practice at the commencement of the trial, the court or tribunal must be certain of their jurisdiction to determine whether they are vested with requisite jurisdiction because it goes to the very root of the authority. This position was reiterated in the case of Japhet Evod Mapunda & 2 Others v. Lukresia Ciprian Mapunda, PC. Criminal Appeal No. 2 of 2021, High Court of Tanzania at Songea. Therefore, this Court finds that the 1st appellate court was justified in deciding that Igunga Primary Court proceeded to determine the dispute without having the requisite jurisdiction. The law is very clear that the decision reached by any court without having jurisdiction is a nullity. See Hassani Ally Sandaii v. Asha Ally, Civil Appeal No. 246 of 2019 where the Court of Appeal at Mtwara stated that position. Consequently, the 1st ground of appeal has no merit and I dismiss it. In totality, the entire appeal is dismissed with costs for lack of merit. Order accordingly. ILU, MJ.

JUDGE 12/11/2024 6 Judgment delivered in chamber on the 12th day of November, 2024 in the presence of Mr. George Mwandu, Advocate for the appellant, and Mr. Samwel Ndanga Advocate for the respondents. DILU, MJ.

JUDGE 12/11/2024 7