nelson yohana maiwe vs philipo musa semgomba 2023 tzhc 22621 31 october 2023

m THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB-REGISTRY) AT MOROGORO LAND APPEAL NO.68 OF 2022 (Arising the decision ofKiiosa District Land and Housing Tribunai in Land Appeai Case No. 28 of2021; Originating from the decision ofMtumbatu Ward Tribunaiin Land Case No. 32 of2020) NELSON YOHANA MAIWE APPELLANT VERSUS PHILIPO MUSA SEMGOMBA RESPONDENT JUDGMENT 31^' October, 2023 CHABA. J. This is an appeai originating from the Ward Tribunal of Mtumbatu in the District of Kiiosa whereby the respondent herein, Philipo M. Semgomba (Complainant at trial) (Suing as an Administrator of the estates of the late Musa Simioni Semgomba) instituted a land matter via Land Case No. 32 of 2020 against the appellant herein, Nelson Yohana Maiwe (respondent at trial) claiming that Nelson Yohana Maiwe invaded his parcel of land measuring three (3) acres and cultivated some plants therein. According to the respondent herein, the disputed parcel of land,did belong to Musa Sirhioni Semgomba. At the culmination: of trial, the triar Ward Tribunal refused the respondent's claim-s and decided in favour of the appellant. That was on 24^^^ March, 2021. Aggrieved, the respondent,/ complainant at trial, appealed to the Page 1 of 13 District Land and Housing Tribunal for Kilosa, at Kilosa via Land Appeal Case No. 28 of 2021 which upon hearing the appeal, it reversed the decision of the trial Ward Tribunal. In this regard, the appellant herein. Nelson Yohana Maiwe lost the case and the respondent, Philipo Musa Semgomba was declared a winner. Disgruntled, the appellant herein preferred the present appeal clothed with two grounds of appeal as hereunder: 1. That, the Appellate District Land and Housing Tribunal erred in law and in fact for failure to join necessary party. 2. That, the Appellate District Land and Housing Tribunal erred in law and in fact for failure to re-evaluate the evidence tendered by the appellant at the trial ward tribunal to make its own findings and draw its conclusion that the evidence of the appellant which was heavier than that of the respondent. At the hearing of.the appeal, both parties appeared in persons, and unrepresented. By consensus, parties agreed to argue and dispose of the matter by way of written submissions. Both parties lodged their respective submissions pursuant to the Court's scheduled order. However,for the reasons to be apparent shortly, I do not intend to reproduce and / or summarize the rival submissions advanced by the parties in support for, and against the grounds of appeal. This is; because, while , perusing the .Court, records and composing my judgment, I .noticed serious irregularities pertaining to . the Page 2 of 13 impugned judgment and,proceedings of the trial Ward Tribunal which in rriy opinion, it goes to the competency and jurisdiction of the trial Ward Tribunal and its subsequent appeal to the first Appellate DLHT. Without much ado, I find it pertinent to narrate the said incurable anomalies as hereunder: - First of all, I have discovered that, proceedings taken and recorded at MtUmbatu Ward Tribunal have no quorum of the siting members. Looking at the proceedings of the trial Ward Tribunal, it shows that Land Case No. 32 of 2020 was instituted by the respondent (Philipo M. Semgomba) against the appellant (Nelson Yohana Maiwe) on 23'"^ day of December, 2020. According to the record, the respondent gave his testimony in respect of the disputed parcel of land. Thereafter, the matter was adjourned to 30'^'^ December, 2020 where the appellant herein had : an opportunity to advance his defence testimony against the respondent / complainant's claims. It is on record that, on that pardcular day (30/12/2020), the matter was once again adjourned and scheduled for hearing, of. the respective witnesses from . both sides on 13/01/2021. Thus, on 13/01/2021, the appellant. Nelson Yohana Majwe (respondent at trial) brought.one (1) witness namely; Penford Seng'horido and the respondent herein (complainant at trial) called three (3) witnesses to support his testimony, namely: Mr. Peter Musa, Mr. Batton Chilimo, a Village Chairman of Kitange, -11:and^Mr. Peter Disoile. All these witnesses appeared before the trial Ward Tribunal and advanced their testimonies respectively. Page 3 of 13 As the records speaks, in all these days, there Is nowhere In the proceedings of the trial Ward Tribunal showing that the names of all members who attended and fully participated to hear the parties and the respective witnesses throughout the hearing of the matter from 23/12/2020 to 13/01/2021 was taken and recorded along with the proceedings. What transpires from the records of the trial Ward Tribunal Is that, the parties and their key witnesses although appeared beforo the trial Ward Tribunal and advanced their respective testimonies, but the names of,the members who constituted the trial Ward Tribunal, and eventually entertained the matter were not recorded and taken down as the law requires. Tt Is very Important to note that. Ward Tribunals are creature ofthe law, correspondingly to Its composition of members. That being the position, no proceejjlngs of a Ward Tribunal can be enforceable as a valid legal order. If at all, the,purported presiding members of such a Ward Tribunal were not recorded In the proceedings of.the trial Ward Tribunaj. The law has set ^mandatory requirement of each Of the Ward Tribunal to sit with not less- than four (4) membOfs or- more than eight (8) members of w/hom three shall be women. Section 11 of the Land Disputes Courts Act,[CAP. 216 R. E. 2019], precisely provides that: " "Each Tribunal shall consist ofnot less than four nor more than eight members Of whom three shall be women who shallbe elected bya Ward Committee asprovidedfor under 'section 4 ofthe Ward Tribunals Act". Page 4 of 13 Similarly,, section 4 of the Ward Tribunal Act [CAP. 206 R. E. 2002], articulates that, cpmpositipn of the.Ward Tribunal shall consist of members not less than four or more than eight members elected by the Ward Tribunal Committee from amongst a list of names of persons residing in the Ward. It read as follows: "Section 4(1)- Every Tribunalshaii consist of: - (a) ■ Notiess than four or more than eight members elected by the Ward Tribunal Committee from amongst a list of names of persons residing in the Ward compiled in the prescribed manner; (b) A Chairman of the tribunal appointed by the appropriate authorityfrom among the members elected underparagraph (a); (2) There shall be a secretary ofthe Tribunal who shaii be appointed by the iocaigovernmentauthority iri which the wardin question is situated, upon recommendation by the Ward Committee'. (3) The quorum,at a sitting ofa Tribunal shaii be one haif of the total number ofmembers. (4)Atany sitting ofthe Tribunal, a decision ofthe majority ofmembers present shaii be deemed to be the decision of the Tribunal, and in the event ofan equality of votes the Chairman shaii have a casting vote in addition to his original vote". Guided by the aboye provisions of the law, it follows therefore that, the trial Ward Tribunal had nb option other than complying with the law. Reverting Page 5 of 13 to the records at trial, the proceedings taken and recorded on 23/12/2020, 30/12/2020 and 13/01/2021 respectively, ought to have been recorded in line with the requirement of the law. Again, the presiding members of the Ward Tribunal who participated and involved as well in the hearing of the parties and their key witnesses were not recorded or indicated in the proceedings of the trial Ward Tribunal. Failure of which, was incurably defective on the side of the trial Ward Tribunal,.Although I am aware that, currently the Ward Tribunals have ousted arid seized wi;th the requisite jurisdiction to determine land disputes and became mediatory boards, but it does not mean that the requirement of the above composition . ol;the.trial Ward Tribunal Js, aisp:; not In operation (inoperable) and.should be ignored. : Secondly, the judgment of the Mtumbatu Ward Tribunal dated'24"^ March, 2021 wasVdellvered and sigh by six (6) individuals who are the majority members ihCluding the secretary of the Ward Tribunal, called Samweli Ghisdngela Mwigowe who according to the records, he dully stamped his Seal/ Stamp to autheriticate the decision of the VVard Tribunal. For ease of reference, I find it pertinent to reproduce what exactly transpired In the judgment of the trial.Ward Tribunal,!quota: . ^s Uamuzi huo wa kuHtupHia mbali shauri hiH umetolewa leo tarehe24/03/2d21nal<uskiniwana:- 12 T/rdn John Makombe - M/kiii wa baraza.....signed. 2/Maria John Chisongeia- Mjurhbe Page 6 of 13 3. RaheH EHudi Sewando - Mjumbe wa baraza....signed. 4. Amon Gread Chisaiun!- Mjumbe wa baraza...signed. 5. Gresford Keneth Chisoma - Mjumbe wa baraza...signed. 6. Samweii Chisongeia MWigowe - Katibu wa Baraza...signed. Stamped with the sea! of: Katibu wa Baraza ia Kata Miumtiatij".fBoid is mine]. Under section. 4 (.2) .of the Ward Tribunal Act (supra) states that, 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. According to the law, the secretary of the respective Ward Tribunal is not among the members who constitutes the quorurn of the Ward Tribunal. As noted above, the reaspn is obvious that, his or her appointment is done by the local government authority in which the ward in question iis situated, and upon recommendation by the Ward Committee. In my considered'view, the presence of the seal of the secretary of the Ward Tribunal in the Judgement composed by the Ward Tribunal, is a proof that the sectetafy who does not constitute the quorum of the Ward Tribunal, did participate as One of the key members to reach tO" a final decision of the Ward Tribunal, hence renders the whole proceedings, judgement and orders thereto a nullity, In other.words, the signing of the.judgement by the secretary of the Ward.Tribunal was contrary to the law. On;this,facet, I am inspired by the position of.the law enunciated py the (Hon. S. E. Mugasha, J., As she then •Page 7 of 13 was) in the case of Nada Qqri Vs. Isaki Gilba, Miscellaneous Land Appeal No. 2 of 2013/ HC:t -Arusha (unreported), where the Court observed inter-atia that: - "A Secretary is not a member ofthe Ward Tribunal but an employee of the Local Government Authority. In the circumstances, as the decision is signed by the secretary, the same is tantamount to the disputed being determined by the Secretary who is nota member ofthe Ward Tribunal and such decision is iiiegai". That being the position of the law, applying the principle in the matter under consideration, it is clear that the proceedings of the trial Ward Tribunal taken and recorded on 23/12/2020, 30/12/2020 and 13/01/2021 respectively, and the decision of the trial Ward Tribunal (Land Case No. 32 of 2020) delivered on 24^^ March, 2021 were all nullity for reasons stated herein above, hence no competent appeal stemmed from Land Appeal Case No. 28 of 2021 before the DLHT for Kilosa. The way I see it, had the first Appellate DLHT's Chairman directed his mind properly on these legal issues, I am certain that he would have not decided the way he did. I am sure that, he would summarily reject the appeal before him for want of jurisdiction. AS there is abundant evidence showing that, the learned Chairperson failed to exercise his duty to rehear and re-evaluate the entire evidence adduced and recorded by the trial Ward Tribunal under the umbrella of being the first Page 8 of 13 . Appellate Tribunal and come up with his own finding, I will therefore, exercise revisional powers bestowed to this Court under section 43 (1)(b) and (2) of The Land Disputes Courts Act (supra) to revise the proceedings of the lower Tribunals and make the appropriate orders for the interest of justice. Section 43(1)(b) and (2) of The Land Disputes Courts Act (supra) provides that: "Section 43(1) In addition to any other powers in that behaifconferred upon the High Court, the High Court: - (a) shaii exercise generai powers of supervision over aii District Land and Housing Tribunais and may, at any time, caii for and inspect the records ofsuch tribunai and give directions as it considers necessary in the interests of justice, and aii such tribunais shaii compiy with such direction without undue deiay; (b)may in any proceedings determined in the District Land and Housing Tribunai in the exercise of its originai, appeiiate or revisional jurisdiction, on application being made in that behaifby anyparty or ofits own motion,if it appears that there has been an error materiai to the merits ofthe case invoiving injustice, revise the proceedings and make such decision or order therein asit may think fit[Boid is mine]. Page 9 of 13 (2) In the exercise of its revlsionaljurisdiction, the High Court shall have aii the powers in the exercise of its appellatejurisdiction."[Emphasis addedj. Placing reliance on the above provisions of the law, at this juncture, I will take this course even though the parties were not afforded with an opportunity to address the Court in respect of the noticed anomalies. It is settled law that, where a Court is sitting to compose a verdict, and in the course discovers a serious irregularity in the proceedings touching the issue of jurisdiction, it can decide on it without re-opening the proceedings for inviting parties to address it. In the case of Richard lulius Rukambura Vs. Isaack Ntwa Mwakajlla & Another (Civil Appeal No. 2 of 1998)[2004] TZCA 67(19 January 2004),(extracted from www.tanzlJi.orQj. the CAT succinctly observed that: "On a fundamental issue like that ofjurisdiction a court can suo motu, raise it and decide the case on the ground oif jurisdiction without even hearing the ' ' pardes.^[Boid is mine]. Besides, it is settled law that a point of law, especially the one touching the issue of jurisdiction of the Court, can be raised at any stage of proceedings, even at this stagd of second appeal and further that thd same can be raised even by the Court sue motu. this view is based on the fact that, jurisdictional issue is a fundamental one that must be resolved before the Court decides the Page 10 of 13 matter on merits.. This principle was enunciated, by the Court of Appeal of Tanzania (the CAT) in the case of Richard Julius Rukambura's case following its previous decision in Funuel Mantiri Ng'unda Vs. Herman Mantiri Ng'unda and 20 Others, Civil Appeal No. 8 of 1995, (CAT) (unreported) where the Court held inter-aliat\\BX.\ - "The question ofjurisdiction is paramount in any court proceedings. It is so fundamentai that in any triai even ifit is not raised by the parties at the initiai stages, it can be raised arid entertained at any other stage of the proceedings in order to ensure thai the court is properiy vested with jurisdiction to adjudicate the matter before it." Basing on the ^bove principles, in the Malaysian case of Federal Hotel Sdn. Bhd Vs. Mationa! Union of Hotel Bar & Restaurant Workers (1983)1 MLJ 175 at page 178,(though persuasive), it was held: - "Jurisdiction does not originate in the consentofthe parties and cannot be established, where it is absent, by such corisehfor acquiescence. Itis a fundamentalprinciple ^^ that nis consent or acquiescence can confer on a '■■■- ■•- court or: tribisnai. with limited jurisdiction to act beyond that jurisdiction, or can estop the consenting party front subsequently maintaining Page 11 of 13 thai such cdhit or tribunal has acted without jurisdiction".[Emphasis added]. From the above analysis, I see no need to spare the proceedings originating from Mtumbatu Ward Tribunal and the first Appellate DLHT for Kilosa. Consequently, the first Appellate DLHT's jurisdiction to entertain the suit was ousted. It follows as night follows day that, the proceedings both in the trial Ward Tribunal and the subsequent appeal to the District Land and Housing Tribunal for Kilosa, at Kilosa were a nullity, and the decisions (Judgments and Decree) arose therefrom are set aside together with the orders thereto with no order as to costs. : , If the parties are still wishing' to pursue for their rights, they may file a fresh case in the competent Tribunal subject to adherence of the mandatory requirement of the current law. It is so ordered. DATED at NORDGORD this 31^^ day of October, 2023. 0V3RT 0,c C 2: 2: LU z M. J. v-- JUDGE 31/10/2023 0^ Page 12 of 13 Court: Ruling delivered under my hand and the Seal of the Court in Chamber's this day of October, 2023 in the presence of the Respondent who appeared in person, and unrepresented and in the absence of the Appellant. o L. B. ya LU > puTfMEmsrmw- 3i/i0/'2O23' Court: ' i'j ^ 'J'-T Right of the parties to appeal Yo the CAT fully explained. G/? C 2: -f. L. B. Uyakthana LU 21 X Ag, DEPUTY REGISTRAR 31/10/2023 •Y i -. ' (fen Page 13 of 13