nsenso so mwandu vs elasto so ngenda 2023 tzhc 19005 17 july 2023

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA LAND APPEAL NO. 44 OF 2022 (Arising from the District Land and Housing Tribunal for Mpanda at Katavi in Miscellaneous Land Application No. 132 of2022.0riginating from Karema Ward Tribunal in Land Case No. 103 of 2019) RESPONDENT 21st June & 1/b Juh MRISHA Jfl The appellant unsuccessfully sued the respondent before Karema Ward Tribunal (the WT) for a piece of land containing 17 acres. The judgment of Karema WT was grounded on 16.06.2020. Realizing that he was time barred to appeal against the said WT decision, on 06.05.2022 the appellant knocked the doors of the District Land and Housing Tribunal for Katavi (the appellate tribunal) where upon he lodged an application for extension of time to appeal against the decision of Karema WT. i The application was filed under Regulation 4 of the Land Disputes Settlement Act (District Land and Housing Tribunal) Rules of 2003, G.N. No. 174 of 2003 and Section 20(2) of the Land Courts Disputes Settlement Act [CAP 216 R.E. 2019] (henceforth the LDCA) and it was heard by way of written submissions pursuant to the parties' consensus. However, before determining such application, the Chairman of the said ,W appellate tribunal observed that the tribunal he was presiding over was not properly moved; hence, he afforded both parties an opportunity to Uli. address it on the same something which was cc plied by both parties .. . through their learned counsels •• In the end the appellate tribunal ruled out that it had no jurisdiction to uI entertain the said application and proceeded to struck it out on the ground that the enactment of section 47 of the Written Laws ■ . ■ : ■ (Miscellaneous Amendments) (No.3) Act, 2021 which repealed section W ’W?:. 20 of the LDCA applies retrospectively to the decision made by the WT Jit of Karema The appellant was aggrieved by that ruling. Hence, he has lodged the present appeal through which he has asked this first appellate court to allow his appeal, quash and set aside the ruling of the appellate tribunal 2 with costs. His memorandum of appeal is featured by only two grounds namely: - 1. That the Tribunal (the appellate tribunal) erred in law and fact by holding that it has no jurisdiction to extend time on the matter originating from the Ward Tribunal while in fact it has such jurisdiction, 2. That the Tribunal erred in la by jurisdiction suo motu when composing according the parties the righ same. rhSWsrr • ■ At the hearing of this appeal the appellant enjoyed the legal services of Mr. Peter Kamyalile^ learned Advocate while the respondent appeared in person, unrepre it has been the practice of courts, Mr. Kamyalil to address the court in relation to his client's grounds of appeal. Beginning with the first ground of appeal, Mr. Kamyalile first submitted that the right of appeal against the decision made by a Ward Tribunal to the District Land and Housing Tribunal, is provided under provisions of section 19 of the Land Dispute Courts Act, [Cap 216 R. E 2019]. He also submitted that before 11th October, 2021, the time of appealing from Ward Tribunal to the District Housing Tribunals was 45 days; this is 3 stated under section 20(1) of the Land Disputes Court Act which, he said, provided a right of extension of time to appeal against the decision of Ward Tribunal. Despite reminding the court about such provisions of the law, the learned counsel admitted that the above law is no long existing following the enactment of section 47 of the Written Laws (Miscellaneous ,4888888^ LDCA. However, Mr. Kamyalile, argued that although the said provision of the law has been repealed still there we her options which could •. tow-:*: be used in order to cure the situation. Bl K a. He was of the viewthat the appellate tribunal could use the Law of Wk. ..... Limitation Act, CAP 89 R.E? 2002(the LLA) to grant the applicant's •- application because section 52(2) of the LDCA is applicable when the appellate tribunal exercise its original jurisdiction. To him, even an application for extension of time to appeal falls under the original jurisdiction of the appellate tribunal. In the alternative, the learned counsel submitted that even if section 52(1) of the LDCA could not apply, still the said appellate tribunal was mandated to apply the Customary law (Limitation of proceedings) rules 4 G.N 311 of 1963 as per section 52(2) of the LDCA to grant the applicant's application. Arguing as to whether the appellate tribunal has no jurisdiction to extend the time of appeal on matters originating from the ward tribunal after the amendment of section 20 of the LDCA, Mr. Kamyalile submitted that since section 52(2) of the LDCA provides that The LLA shall apply to ’ : •• proceedings in the District Land and Housing Tribunal and the High A. live original jurisdiction, then the appellate tribunal ought to invoke section 14 of the LLA to grant the appellant's application vide Miscellaneous Land Application No. 132 of 2022 K He also submitted that the rationale behind grant of extension of time to re is existence of right of appeal under section 19 of the LDCA and second, that the court or tribunal cannot have only a power of hearing an appeal without being vested with power of extension of time to appeal. It was it the further submission of the learned counsel that section 20(2) of the LDCA which provided the power to the appellate tribunal to * extend time of appeal was about substantive right, not a procedural right, hence according to him the appellate tribunal misdirected itself 5 when it held that it had no jurisdiction to extend time of appeal because the said amendment applies retrospectively. To bolster his position Mr. Kamyalile referred this court to the case of Benbros Motors Tanganyika Ltd. v. Ramanlal Haribhai Patel (1967) HCD 435 in which it was provided that: - "When a new enactment deals with right o ctions, unless it is so expressed in the act an action is not taken away" Having cited the above authority, the learned counsel submitted that since the time to appeal against the decision of Karema WT had expired, A W it was not proper for the appellate tribunal to hold that the appellant's ■ right of appeal was affected by amendment of the LDCA. B He was of the opinion that even if the appellate tribunal for could not apply the repealed provision of the law to determine Miscellaneous Civil Application No. 132 of 2022, still it could use Rule 3(4) of the Customary Law (Limitation of Proceedings) Rules G.N No. 311 of 1963 by virtue of section 52(1) of the LDCA which allows the use of such rules. To add more, Mr. Kamlyalile submitted that if there is a lacuna on the issue of extension of time by the appellate tribunal, then the LLA will be 6 applied. He stressed that the above position was stated in the case of Tanzania Breweries Ltd V. Edson Muganyizi Barango and 7 others Miscellaneous Labour Application No. 79 of 2014 where it was stated that: - "The law of limitation in that regard is the law of general's application ... Where there is as lacuna in the Labour Court Rules, then another law could apply to fill the icunas". :<• He also referred the case of Hezron M. Nyachiga vs Tan nia Union ■■ y Industrial and Commercial Workers, Civil Appeal No 79 of 2001 -- % (Unreported) to cement his proposition. .. ... :• As for the second ground, Mr.Kamyalile submitted that the appellate tribunal erred in law' v* 1-by raising the issue of jurisdiction suo motu when _ ■ composingdts Ruling without affording the parties a right to be heard, w ilk He added that in course of hearing the applicant's application, the appellate tribunal invited the parties to address it on a wrong citation of ■■ the law, but did not give them a right to address it on the issue of jurisdiction, something he said was wrong as the parties were condemned unheard. To backup his position, the learned counsel cited the case of Pili Ernest V. Moshi Musani, Civil Appeal No. 39 of 7 2019, CAT at Mwanza (uunreported) where the Court of Appeal stated that: - "We are satisfied that the parties were denied the right to be heard on the crucial question that the first learned appellate magistrate had raised and we are further satisfied V- that the denial was in violation of the fundamental constitutional right to be heard ano^the parties were prejudiced." I 11 a I . - |.| | a a t || present appeal and quash the decision of the appellate tribunal. On his ■■ > v. part, the respondent urged this court to adopt his reply to the Memorandum of appeal as part of his submission in chief, upheld the decision of the appellate tribunal and dismiss the appellant's appeal with costs. each day of delay from the date a judgment of Karema WT was grounded until when his application was being heard by the appellate tribunal, but he did not do that. Hence, he (the respondent) concurs with the decision of the appellate tribunal because the applicant's application lacked a legal base. He thus, 8 prayed to this court to dismiss the instant appeal and award him costs. Arguing about the appellant's complaint that he was condemned unheard, the respondent submitted that both parties were given a right to be heard and the decision made by the appellate tribunal was proper. In rejoinder, the appellant's counsel reiterated his previous stance to the effect that the appellant's application before the appellate tribunal was properly filed because it was about a prayen ension of time. He also submitted that the appellant was condemn iheard on the issue of jurisdiction. After hearing the rival submissions both parties, going through the cited authorities and the records of the appellate tribunal, it is my observation that both parties are in one that the appellate tribunal was not properly moved due to the fact that the enabling provision of the law which is section 20(2) of the LDCA, had already been repealed by section 47 of the Written Laws (Miscellaneous Amendment) (No. 3) Act, Ji 2021. However, it appears that the two have locked horns on the issue of jurisdiction of the appellate tribunal and the complaint that the said tribunal raised the issue of jurisdiction suo motu when composing its ruling. 9 From the above contentions, two issues call for determination of this court. First, is whether the appellate tribunal had jurisdiction to hear and determine an application for extension of time to appeal on matter originating from Karema WT. Second, is whether the said appellate tribunal raised the issue of jurisdiction suo motu without affording the parties a right to address it on the same. I will start with the second issue because its answer is not farfetched. Mr. Kamyalile has argued that the appellant was condemned unheard I . I in the - course of composing its ruling without giving the parties before it a right ■ Sx*:. to address it on the same. se of Pili Ernest V. Moshi Musani(supra) was cited by the learned counsel to bolster his ■P .-A w. proposition. ;■ K . On his by submitting thatjthe said the appellate tribunal availed both parties a right to be heard on the issue of jurisdiction, hence to him, the decision by the appellate tribunal was rightly made. Admittedly, it is the requirement of the law, as rightly contended by Mr. Kamlyalile, that before making its decision on a certain material issue, 10 any decision-making body, the appellate tribunal being inclusive, must afford the parties before it a right to be heard. The omission to do so is tantamount to failure to adhere to the fundamental constitutional rights enshrined under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977 as amended from time to time. The consequence thereof is as good as what was stated by the Court of Appeal in Pili Ernest V. Moshi Musani(supra). 'IF In that case while subscribing to its previous decision® in Abbas X Sherally & Another v. Abdul Sultan Haji Mohamed Fazalboy, Civil Application No. 33 of 2002 (unreported) the Court of the land, among < •• '<:O< other things observed as follows: - W IB ’4W-X, ■ y-z "The rigffiolf a party to be heard before adverse action is I X, taken against such party has been stated and emphasized by II ~ courts m numerous ■■ decisions. That right is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach of natural justice." ii According to Mr. Kamyalile, the chairman of the appellate tribunal did not give his client a right to address it on the issue of jurisdiction. With due respect to the learned counsel, that allegation is unfounded. The records of the said the appellate tribunal clearly indicates that all parties were given a chance to address the tribunal on the issue of jurisdiction. This can be seen at page 5 of the typed proceedings of the appellate tribunal and for ease of reference "24.10.2022 Mleta Maombi: Yupo (Peter Kamyalile) Mjibu Maombi: Yupo (Sindamenya) nimebaini Mapungufu ya Muombaji, na kuwataka Wadaawa kueleza kama Maombi haya yapo kihalali mbele ya baraza...." If the above is not enough, the typed proceedings reveal that after been given a chance to address the tribunal, Mr. Kamyalile made his 12 submission about the enabling provision of the law which he conceded was not properly cited in the appellant's application. In the circumstance, it is my considered opinion that the learned counsel was in a good position to address the said tribunal on the issue of jurisdiction if he thought it still had it despite the repeal of the then enabling provision of the law. Hence, it is not correct to say that the said tribunal raised the issue of jurisdiction sub motu as claimed by the learned counsel. Therefore, basing on wha the authority cited by the learned cour el distinguishable to the circumstances of this case. In the cited case the nullified the trial court's proceedings because the trial Judge did not afford the parties a right to Wk ssue not the case in the application before the appellate tribunal where both W- parties were given a right to be heard before the said tribunal composed its ruling. In the premises, I find the second ground of appeal to have no merit. Coming to the first issue, while admitting that section 20(2) of the LDCA is no longer existing because of being repealed by section 47 of the Written Laws (Miscellaneous Amendments) (No.3) Act, 2021, Mr. 13 Kamyalile is of the view that the appellate tribunal still has jurisdiction to hear and determine an application for extension of time to appeal against a matter originating from the WT. According to him, there are two options which the appellate tribunal could use to extend the time of appeal. To, him section 52(2) of the A LDCA vests the appellate tribunal and the High Court with power to invoke the provisions of the LLA when exercising their . original jurisdictions. With due respect to the learned counsel, that is not what a WF W-L the such provision provides. Section 52(2) of the LDCA provides that: - __ ^88888^ ■ I "The LLA Cap. 89 shall apply ) proceedings in the .<><><<• District Land and Housing Tribunal and the High Court w wk (Land Division) m the exercise of their respective "ik > wL originaljurisdiction"[Emphasis added] wk tf wk wk Reading the above provision between lines, it is clear that the LLA will be applied by the appellate tribunal or the High Court in the exercise of - wBBP^ their respective original jurisdiction and not otherwise. In dealing with the appellant's application, the appellate tribunal was exercising its appellate jurisdiction as provided under sections 34 and 35 of the LDCA, not original jurisdiction which is provided under section 33 of the said 14 Act. Hence, section 52(2) cannot be applied by the appellate tribunal to hear and determine an application for extension of time to appeal. Another option proposed by the learned counsel is that even if the above provision will not be applicable, still the appellate tribunal could use Rule 3(4) of the Customary Law (Limitation of Proceedings) Rules G.N No. 311 of 1963 by virtue of section 52(1) of the LDCA to hear and determine an application for extension of time to appeal. I think he has misdirected himself on the use of such aw L_ jse section 52(1) ■• ■ provides pretty well that the Customary Lav (Limitation of Proceedings) Rules is applicable to the Ward Tribunal in the exercise of its compulsive jurisdiction; not the District Land and Housing Tribunal. In the present case the appellant's application for extension of time x within which to appeal, was filed before the appellate tribunal and not the WT; hence the Customary Law (Limitation of Proceedings) Rules could not be applied by the appellate tribunal; the same could well be applied had the application been filed in the WT. Besides, in his attempt to fault the decision of the appellate tribunal which was to the effect that the amendment of section 20(2) of the LDCA applies retrospectively, Mr. Kamyalile submitted that the 15 retrospective effect of that amended provision is limited to procedural rights as opposed to substantive rights. To him, an application for extension of time to appeal on a matter which has its origin from the WT is a matter of substantive rights and not a procedural right. With due respect to the learned counsel, that is not a proper meaning. It seems he has missed a point on how to disting sh between the two. <■ Substantive rights fall under the umbrella of substantive laws whereas wt * procedural rights fall under procedural ubstantive law is that part -• V-W.’A • • of law which creates, defines, and regulates rights, as opposed to ■ ff "adjudicative or remedial law", which prescribes method of enforcing redress for their invasion. (See Blacks' Law Dictionary, 4h Edition at ’wk page 1598). g Before the appellate tribunal the applicant (now the appellant) moved IS the said body by citing the provisions of section 20(2) of the LDCA which provided that: - "Notwithstanding the provisions of subsection (1), the District Land and Housing Tribunal may for good and sufficient cause extend the time for filing and 16 appeal either before or after the expiration of forty- five days." From the above provision of the law, it is apparent that what the said provision provided was a procedure on how to lodge an application for extension of time to appeal out of time. It required the appellate tribunal to consider whether or not the applicant has assigned some good cause of delay before it grants him leave to appeal against the decision made by the Ward Tribunal. That is not a substantive right which, in ' H •: > s opinion, comes into play after an application for extension of time is granted by the ■ v District Land and Housing Tribunal (the appellate tribunal). However, the law as it stand dw and then following the amendment of section 20 of the LDCA, is to ffect that the District Land and Housing Tribunals "':v have no jurisdiction to entertain applications for extension of time on a > Ik matter originating from a Ward Tribunal. ■ The last question is whether the repeal of section 20 of the LDCA applies retrospectively to decisions made by the Ward Tribunals prior to enactment of the Written Laws (Miscellaneous Amendments) (No. 3) Act, 2021. 17 In his submission the learned counsel for the appellant cited the case of Benbros Tanganyika Itd(supra) in order to invite this court to agree with him that when a new amendment deals with rights of actions, unless it is so expressed in the Act, an existing right of action is not taken away. However, I have noted that the learned counsel skipped the words that followed after the words, "...taken away". Therefore, in order to;get a ■. clear picture of that decision, I find it ap o reproduce what the Apex Court stated in that case, as follows "When a new enactment deals with rights of action, III W ™ unless it is so expressed in the Act; an existing right of action is not taken away, but when it deals Mik J® with procedure only, unless the contrary is i expressed, the enactment applies to all actions, whether commenced before or after & the passing of the Act. '[Emphasis added]" The above position was also emphasized by the Court of Appeal in Makorongo v. Consigilio [2005] 1 EA 247. In that case, the Court quoted with approval the statement of principle made by Newbold, J .A. 18 of the defunct East Africa Court of Appeal in the case of Municipality of Mombasa v. Nyali Limited [1963] EA 371, at 374 that: - "Whether or not legislation operates retrospectively depends on the intention of the enacting body as manifested by legislation. In seeking to ascertain the intention behind the legislation the Courts are guided by certain rules of construction. One of these rules is a that if the legislation affects substantive ri hts, it will not be construed to have five ’wk operation W unless a dear intention to that effect is manifested; Wy. 'W>.; whereas if it affects procedure only, prima facie it operates retrospectively unless there is good 'UnjL reason to the contrary. [Emphasis Added] Guided by the above^decision, I am of the view that although the appellant's application before the appellate tribunal was filed before enactment of the Written Laws (Miscellaneous Amendment No.3) Act of 2021, still the said amendment applies retrospectively to that action. This is because first, the said application relates to the procedure governing the exercise of the right to lodge an application for extension 19 of time to appeal before the District Land and Housing Tribunal on a matter originating from the Ward Tribunal. Secondly, section 47 of the Written Laws (Miscellaneous Amendments) (No. 3) Act,2021 which amended section 20 of the LDCA, does no expressly bar the retroactivity of that new provision. Hence, the first issue is as well answered in the negative. Before winding up, I wish to comment albeit brief of section 19 of the LDCA which was referred to this^ourt by Mr. Kamyalile in the course of making his subrhission in-chief. I share the same view with him that the said provision provides for a right to appeal If . to the District Land and Housing Tribunal (the DLHT) against an order or Mb However, while I concur with the learned counsel as such, I do not think if section 19 above wlll|serve any purpose in the present appeal. I am of EE that considered view due to the fact that the said provision provides for a X right of appeal, while an application the subject of this appeal, was all about a right to apply for extension of time within which to appeal, which right has already been overtaken by events as I have demonstrated above. 20 Therefore, it is my opinion that despite the amendment of sections 15, 16 and 20 of the LDCA by the Written Laws (Miscellaneous Amendments) (No. 3) Act, 2021; section 19 of the former Act was left behind for the purpose of accommodating situations regarding the pending decisions which were made by the Ward Tribunals prior to the enactment of the above Written Laws (Miscellaneous Amendments) Act so that those who feels that their substantive rights \ ... . taken away, can automatically lodge their intended c eals to the District Land and Housing Tribunal without seeking the leave of such ■ appellate tribunal to extend the time of appeal. The above being I find that the pr ent appeal has no legs to stand for wan The same is dismissed on its entirety. Given circumsta I make no order as to costs. Ordered JUDGE 17.07.2023 DATED at SUMBAWANGA this 17th Day of July, 2023 JUDGE 17.07.2023 21