pili m kavuye vs zawadi james mlimila administrator of the estate of the late paul ndunguru 2020 tzhclandd 2243 18 september 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO. 1106 OF 2017 (Arising from Land Revision No. 173 of 2016) PILI M. KAVUYE.......................................................................... APPLICANT VERSUS ZAWADI JAMES MLIMILA (Administrator of the Estates of the Late PAULINA NDUNGURU......................... RESPONDENT RULING S.M. KALUNDE, J.: PILI M. KAFUYE ("the applicant") through the services of the learned counsel Mr. FRANK ANDREW CHANDUZ filed the present application with two prayers. Firstly, leave be granted for the applicant to appeal to the Court of Appeal against the judgment and decree of this Court in Misc. Land Appeal No. 173 of 2016. Secondly, that this court be pleased to certify that a point of law is involved. The application is preferred under section 47 (1) and (2) of the Land disputes Act Cap. 216 R.E 2019 supported by an affidavit of the applicant. In response, ZAWADI JAMES MLIMILA, the Administrator of the estates of Paulina Ndunguru, "the respondent" instructed his advocate, Mr. BENJAMIN KALUME to file a Counter Affidavit challenging the application. The facts giving rise to this application are that, the respondent successfully sued the applicant before the Kawe ward tribunal in Land Application No. 03 of 2015. Aggrieved by the decision of the ward tribunal the respondent filed an appeal to the District Land and Housing Tribunal for Kinondoni District at Mwanyamala ("the tribunal"). At the tribunal the Petition of Appeal had the following grounds: - (1) . That the Ward Tribunal erred in entertaining the dispute without ascertaining whether it was seized with the jurisdiction; (2) . That the applicant was not afforded full, adequate and meaningful hearing by the Ward Tribunal; and (3) . The Ward Tribunal failed to properly analyze evidence before it and consequently made an erroneous and unfounded conclusions. Through Land case Appeal No. 70 of 2015, the tribunal upheld the decision of the ward tribunal. Dissatisfied with the decision of the tribunal the appellant filed Misc. Land Appeal No. 173 of 2016 before this Court. This time she preferred three grounds that the tribunal: (1) did not consider that the Ward Tribunal was improperly 2 constituted; (2) did not afford the appellant a fair hearing; and (3) failed to properly evaluate evidence. Unfortunately, she lost the appeal. Undeterred the applicant is seeking leave to appeal to the Court of Appeal and a certification by this Court that there are points of law to be determined by the Court of Appeal. The points sought to be certified are: - (1). Whether the tribunals closure of applicant's case afforded a fair trial on the part of the applicant; (2). Whether or not, the issue of quorum is the question of jurisdiction thus can be raised at any time in the proceedings. Pursuant to the order of the Court dated 26th March, 2020, the application was argued by way of written submissions. The submissions of the applicant were drawn and filed by Mr. Chundu learned counsel; while those of the respondents were drawn and filed by Mr. Kalume, learned advocate. In support of the first ground, Mr. Chundu submitted that, at the ward tribunal, the applicant's case was concluded before the applicant had finished calling her witnesses and in her absence. In his opinion, injustice on the applicant was occasioned by the closure 3 of his case. He added that, this injustice had not been accorded a requisite attention at the tribunal and before this Court in their appellate capacities. As for the second ground, Mr. Chundu reasoned that the quorum at the ward tribunal was a question of jurisdiction and therefore it suffices to be raised at any stage of the proceedings including at appellate level. In bolstering his argument he cited the Court of Appeal decision in Wakf and Trust Commissioner (as the administrator of the estate of the late Zawadi Bint Said) vs. Abbass Fadhil Abbas and Another [2003] TLR 377 CAT, where it was held that the issue of jurisdiction is fundamental it can be raised at any time in proceedings. In reply Mr. Kalume argued that there was no point of law worthy the attention of the Court of appeal since the question of quorum was not raised or pleaded in lower court and in the High court as second appeal. He cited the Court of Appeal decision in Kipara Hamisi Misagaa @ Bigi vs Republic (Crim Appeal No.441 of 2007) [2018] TZCA 88; [08 May 2018 TANZLII] which cited with approval the decision in unreported case of Hassan Bundala @ Swaga vs. Republic, Criminal Appeal No. 385 of 2015. 4 Mr. Kalume added that there was no room for the Court of Appeal to deal with issued not raised or pleaded in the lower court. To support the argument two cases were cited; that is Farida and Another vs. Domina Kagaruki, Civil Appeal No. 136 of 2006 (unreported) and Elisa Mosses vs. Yesaya Ngateu Matee (1990) TLR 90. As regards to the question of whether the applicant was afforded fair trial at the trial tribunal, Mr. Kalume contended that the applicant had called all the witnesses she wished to call and said that she had nothing to add. In conclusion, Mr. Kalume contended that there was no point of law to be certified for determination by the Court of Appeal. He urged the Court to dismiss the application with costs for being devoid of merit. In rejoinder, Mr. Chundu relied on the decision in Wakf & Trust Commissioner vs. Abbass Fadhil Abbas (supra) to maintain a position that, the quorum, like jurisdiction, can be raised at any stage of the proceedings. He attempted to distinguish the cases cited by the respondents by arguing that the former related to the question of jurisdiction which was not question in the present case. He concluded that there were points of law that required the 5 attention of the Court of Appeal and requested that application be granted with costs so that the Court of Appeal will a have a final shot at delivery of justice. Having examined the rival submissions of the parties' as well as the records, I will now deliberate on the merits of the application. According to the Chamber Application the present application is brought under the provisions of section 41 (1) and (2) of Cap. 216. The section reads: - "47—(1) Any person who is aggrieved by the decision of the High Court in the exercise of its original, revisional or appellate jurisdiction, may with the leave from the High Court appeal to the Court of Appeal in accordance with the Appellate Jurisdiction Act. (2) Where an appeal to the Court of Appeal originates from the Ward Tribunal the appellant shall be required to seek for the Certificate from the High Court certifying that there is point of law involved in the appeal." [emphasis mine] The takeaway from the above provision is that appeals originating from the Ward Tribunal to the Court of Appeal must 6 accompanied by a certificate that there is point of law involved. See Jerome Michael vs. Joshua Okonda, Civil Appeal No. 19 of 2014 (unreported); Tumaini Meng'oru vs. Israel Meilari (Civ Application No.126 of 2017) [2018] TZCA 161; [12 March 2018 TANZLII]; and Rutagatina C.L vs. The Advocates Committee and Clavery Mtindo Ngalapa, Civil Application No. 98 of 2010, CAT at Dar es Salaam (unreported). In certifying the points of law worth for the attention of the higher Court of the land my duty is to evaluate the proposed points of law and determine whether they are worth to be certified for the attention of the Court of Appeal. This duty was articulated in Dorina N. Mkumwa vs. Edwin David Hamis (Civil Appeal No.53 of 2017) [2018] TZCA 221; [10 October 2018 TANZLII], where the Court of Appeal (Juma, CJ) observed that: " Therefore, when High Court receives applications to certify point of law, we expect Rulings showing serious evaluation of the question whether what is proposed as a point of law, is worth to be certified to the Court of Appeal. This Court does not expect the certifying High Court to act as an uncritical conduit to allow whatsoever the intending appellant proposes as point of law to be perfunctorily forwarded to the Court as 7 point of law. We are prepared to reiterate that Certificates on points of law for appeals originating from Ward Tribunals mark a point of finality of land disputes that are predicated on matters of fact. Certificates are designed to ensure that land disputes originating from Ward Tribunal come to an expeditious end, preferably in the High Court." I am also mindful of guidance provided in Agnes Severini vs. Mussa Mdoe () [1989] TZCA 11; [22 September 1989 TANZLII]; 1989 TLR 164 (TZCA) "We wish to observe at the outset that this was an unsatisfactory way of certifying a point I of law. That certificate is capable of two interpretations. It could mean posing the question whether there was any evidence at all to support the concurrent decisions of the courts below. It could equally mean to ask the question whether the evidence as adduced was sufficient to support and justify those decisions. How, this distinction is imported. The question whether there was any evidence at all to support the decision is a question of law which can properly be certified for the opinion of this court. But whether the evidence as adduced was sufficient to support the decision is a question of fact which could not properly be the subject of a certificate for the opinion of this court. For, this court takes the view that if there was some evidence 8 on which the courts below could have arrived at the decision they did, then this court will not interfere, even though had this court itself tried the case it might have come to a different decision. Those who are called upon to certify points of law should, therefore, keep this distinction in mind in order to ensure that only the correct questions are certified for the opinion of this court." Mindful of the above positions of law I will traverse on the grounds sought to be certified. In the first ground the applicant alleges that she was afforded a fair hearing at the ward tribunal. The basis of the complaint is that the ward tribunal closed her case when she had not concluded calling her witnesses. This point in my view does not raise a point of law that was wrongly decided by the Court. I hold so because simply put the question whether a particular ground of appeal is a question of law or not may be determined as a threshold issue by examining that ground against the decision appealed from. I accordingly reject this point of law. The second point related to whether the issue of quorum is a question ofjurisdiction and therefore can be raised at any stage of proceedings. This point questions the jurisdiction of the ward tribunal when it made the decision sought to be challenged. 9 The question for determination here is whether the ward tribunal was properly constituted or not and whether if it was not properly constituted what would be the legal consequences. I accordingly certify this point of law. In view of the above analysis, I will allow the application to the extent demonstrated above. Each party shall bear their own costs. It is so ordered. DATED at DAR ES SALAAM this 18th day of SEPTEMBER, 2020. JUDGE 10