Paul Nyanda and 3 Others

Page 1 of 8 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB REGISTRY AT GEITA LAND APPEAL NO. 209757 OF 2024 (Arising from District Land and Housing Tribunal of Geita in Land Case No. 44 of 2019, delivered on 19 July 2024) BETWEEN 1. PAUL NYANDA 2. GAPI KAHINDI 3. MICHAEL SHNENEKO ………………………. APPELLANTS 4. MBIZO MANDUMILA VERSUS YAKUTABA GENERAL SUPPLIES LIMITED…………………………RESPONDENT RULING Date of last Order: 12/09/2024 Date of Judgment: 18/09/2024 MWAKAPEJE, J.: The appellants, herein, appeal against the decision of the District Land and Housing Tribunal of Geita delivered on 19/07/2024 in Land Case No. 44 of 2019, which was decided in favour of the respondent. The decision did not amuse the appellants, so they appealed before this court. Briefly, the appellants were sued before the said tribunal by the respondent for trespassing on the piece of land situated at Butonga village, Igurumuki ward within Sengerema District in Mwanza Region, a property of the respondent, which caused damages to his crops. The Page 2 of 8 District Land and Housing Tribunal (DLHT) of Geita held the appellants liable and ordered them to pay for the damages suffered by the respondent. The judgment and order did not amuse the appellants, who are now before this court on appeal. This court, being conscious of the issue of jurisdiction, upon realising that the subject matter is situated in Sengerema District in Mwanza Region, where there is a High Court Registry, found it prudent to satisfy itself on the issue of jurisdiction in this appeal before proceeding with the hearing of the appeal in merit. Thus, it allowed the parties to address that matter first. Both parties enjoyed the representations of both Emmanuel Marandi and Ms Great Mabula, learned advocates for the appellant and respondent, respectively. Mr Marandi was the first to submit, and he told the court that it has jurisdiction as the appeal originated from the District Land and Housing Tribunal of Geita, a Region this court situates. He argued that Rule 7(2) of Government Notice No. 96 of 2005 gives the High Court mandate to operate within the area in which it is established, which for this matter is the Geita Region. On the other hand, Ms Mabula affirmed that the subject matter is in Sengerema, though initially, cases were being heard by the District Land Page 3 of 8 and Housing Tribunal of Geita. She submitted that this case was instituted in 2019 when Sengerema was still under Geita on land matters. She was of the opinion that since Government Notice No. 545 of 2016 established the District Land and Housing Tribunal of Sengerema, which came into operation in the year 2022, its cases ought not to have been tried by the District Land and Housing Tribunal of Geita. She argued that the High Court (Registries) Rules of 2023, establishing the High Court Geita Registry, were purposely for matters arising from within the Region of Geita, which Sengerema District is not within the Geita Region. Ms Mabula concluded that this court lacks jurisdiction over the matter arising from Sengerema District. However, the District Land and Housing Tribunal of Geita had jurisdiction since Sengerema DLHT was not operational when this case was instituted. She argued that as far as territorial jurisdiction is concerned, this court could not entertain this appeal and prayed for the appropriate orders. Rejoining, Mr Marandi was of the view that since the DLHT of Sengerema was not operational at the time of instituting this case, this court has jurisdiction. The situation could have been different had the DLHT of Sengerema been in operation. Page 4 of 8 After carefully considering the competing arguments from learned advocates for both sides, the issue of jurisdiction forms the bedrock for determining the outcome of any legal proceeding. Being a creature of law, it is conferred and prescribed by the law and not otherwise. This principle was underscored among many other cases in Yohana Balole vs Anna Benjamin Malongo (Civil Appeal No. 18 of 2020) [2021] TZCA 388 (19 August 2021), which stated that: “…it is therefore a primary duty of every court, before venturing into a determination of any matter before it, to first satisfy itself that it is vested with requisite jurisdiction to do so.” Thus, the issue of territorial jurisdiction must be carefully addressed in this case. Indeed, as rightly submitted by both parties, before the establishment of the District Land and Housing Tribunal of Sengerema, land disputes from Sengerema were being tried by the District Land and Housing Tribunal of Geita. However, through Government Notice No.545 of 2016, published on 29 April 2016, created the District Land and Housing Tribunal of Sengerema, the District Land and Housing Tribunal of Geita ceases to operate in Sengerema from 1 April 2016 as indicated in the said Government Notice. From that observation, it is apparent that the case was instituted in 2019, over two years since the establishment of the District Land and Page 5 of 8 Housing Tribunal of Sengerema. Without any formal document, giving the District Land and Housing Tribunal of Geita a mandate to proceed with cases from Sengerema, which ceased to be under Geita, is unacceptable. In the Government Notice No 545 of 2016, it is expressly stated that: “Kufuatia kuundwa kwa Mabaraza haya maeneo ya kazi ya Mabaraza ya Ardhi na Nyumba ya Wilaya ya ……., Geita……….yanabadilika/yanapungua.”[Emphasis supplied] From the above wording, it is apparent that immediately after the establishment of the District Land and Housing Tribunal of Sengerema, which was declared to have come into operation on 1st April 2016, the District Land and Housing Tribunal of Geita ought to have ceased operating over Sengerema District, whose area of operations included Buchosa District. Mr Marandi’s argument that the Sengerema District Land and Housing Tribunal came into operation in the year 2022 is unsubstantiated, as there was no other law or declaration presented to this court to have altered the Government Notice No. 545 of 2016 which established it and declared that it came into operation from 1st April 2016 while reducing or changing the area of operation of the District Land and Housing Tribunal for Geita from 1st April 2016. This court is also aware that normally, the enactments are not supposed to apply retrospectively except where any such particular Page 6 of 8 enactment provides otherwise. This is provided under section 14 of the Interpretation of Laws Act, Cap 1 of R.E. 2019. That section provides that; “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.” In as much as this court is alive to the above provision of the law, the law may not apply retrospectively where the said legislation affects the substantive rights of the potential victims of the new law. Alternatively, if it affects procedure only, prima facie, it operates retrospectively unless there is good reason to the contrary, as was stated extensively in the case of DPP vs Jackson Sifael Mtares and 3 Others (Criminal Appeal No.2 of 2018) [2018] TZCA 393 (13 September 2018). From what is stated above, even if the District Land and Housing Tribunal of Sengerema is presumed to have come into operation in the year 2022, which is not the case, the case and proceedings pending before the District Land and Housing Tribunal for Geita could have been halted and be transferred to the newly established District Land and Housing Tribunal of Sengerema for the cases which the subject matter is situated in Sengerema for it was the procedure which was to be affected and not the substantive rights of the parties as observed in the case of DPP vs Jackson Sifael Mtares (supra). Page 7 of 8 However, even though the publication was made on 29th April 2016, it was expressly provided that it came into operation on 1st April 2016. One would ask why the District Land and Housing Tribunal of Geita operated in Sengerema, which had its own District Land and Housing Tribunal as per the Government Notice published on 29th April 2016. Thus, even its proceedings after the establishment of the District Land and Housing Tribunal of Sengerema were nothing but a nullity. Back to the appeal at hand, this court as well was created by Government Notice No. 853B dated 22nd November 2023. The jurisdiction of the High Court Geita Sub Registry was stated to be in the Geita region, but Sengerema is not one of the Districts of the Geita Region. Entertaining the matter from another jurisdiction is the same as poaching the jurisdiction of another court. Since this court is of the view that the District Land and Housing Tribunal of Geita had no jurisdiction over cases emanating from Sengerema after the establishment of the District Land and Housing Tribunal of Sengerema through Government Notice No. 545 of 2016, it equally lacks jurisdiction to entertain an appeal which was erroneously entertained before trial Tribunal without jurisdiction. In the premises, I find the proceedings before the District Land and Housing Tribunal of Geita vitiated. Consequently, in terms of section 43(1) Page 8 of 8 (b) of the Land Disputes Courts Act, Cap. 216 R.E. 2019, I nullify the entire proceedings, quash the judgment, and set aside the subsequent orders thereto. This appeal is also struck out for lack of requisite jurisdiction. The parties are at liberty to institute the case in a proper forum if they so wish. Each party to bear its own costs. It is so ordered. DATED at GEITA this 18th day of September 2024. G.V. MWAKAPEJE JUDGE