20160923 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA

AT MWANZA MISCELLANEOUS LAND CASE APPEAL NO.11 OF 2014 (Arising from the decision of the District Land and Housing for Mwanza at Mwanza in Appeal No. 151 of 2009) ROBERT MLONGO ................................•.....................APPELLANT

VERSUS MAYOMBYA MAHUGI .............................................. RESPONDENT Last Order: 03/08/2016 Judgment: 23/09/2016

JUDGMENT MAKARAM BA, J.: This Judgment is on appeal from the decision of the District Land and Housing Tribunal for Mwanza at Mwanza in Appeal No. 151 of 2009 I th dated 6 June, 2013 before Hon. C.H. Mwashambwa Esq Chairman. This appeal traces its roots in the suit MAYOMBYA MAHUGI, the Respondent herein instituted at the Pasiansi Ward Tribunal in Land Case No. 50 of 2009 against ROBERT MLONGO, the Appellant herein, for recovery of the disputed land. That suit was resolved in favour of the Respondent, which aggrieved the Appellant who appealed the decision before the District Land and Housing TrziBunal for Mwanza at Mwanza, which appeal the Appellate Tribunal Chairman allowed, thereby quashing the decision of the Ward Tribunal for want of pecuniary jurisdiction. Apparently, the issue concerning the pecuniary jurisdiction of the Ward Tribunal was raised by the Appellate Tribunal Chairman suo motu. The Page 1 of 10 ·Appellant was aggrieved with that decision and has come on second appeal to this Court so that the rights of the parties over the ownership of the suit land will be determined. In this appeal, the Appellant has raised five grounds of appeal. However, in the course of traversing the grounds he dropped the fifth ground of appeal thus remaining with four grounds and hence this Judgment. The five (5) grounds of appeal initially lodged by the Appellant are as follows; 1. That, the learned Appellate District Land and Housing Tribunal Chairman erred in law and in fact when he declared that the suit land was valued over Tshs.3,000,000/= over pecuniary jurisdiction of the trial Ward Tribunal whereas there was no evidence of valuation report from any land officer and or any registered land value.

2. That, the learned Appellate District Land and Housing Tribunal Chairman, erred in law and in fact to nullify the trial Ward Tribunal proceeding~ on the assumption that the suit land value was over Tshs. 3,000,000/= pecuniary value without any evidence that the suit land Farm was of and or over the said value.

3. That, the learned Appellate District Land and housing Tribunal chairman erred in law and in fact for having rejected the Tribunal Assessors unanimous opinions that the suit land belonged to the Appellant. ~ Page 2 of 10 4. That, the Appellate Tribunal erred in law and in fact, to have failed to take into consideration the fact that the Appellant has been in occupation of the suit land since 198~ a period of 33 years, undisturbed, till 2009 when this suit cropped up.

5. That, the learned Appellate Tribunal Chairman erred in law when he failed to take into consideration the fact that, this case was hopelessly time barred, since 1980 when the Appellant settled and occupied the suit land to date/ developed the area by planting trees, when this case was instituted against the Appellant by Respondent before the trial Ward Tribunal in 2009. The Appellant has prayed in this Court for the following orders:- (i) Appeal be allowed with costs. (ii) A declaration that the Appellant is the lawful owner of the suit Land Farm. (iii) A declaration that the suit was hopelessly time barred. In this appeal, Mr. Anaclet Kamara, learned Counsel advocated for the Appellant and Mr. Chama William, learned Counsel represented the Respondent. The 1st and 2nd grounds of appeal which Mr. Kamara argued jointly touch on the issue of the pecuniary jurisdiction which according Mr. Kamara it did not arise before the Ward Tribunal and as such there was no evidence of the value of the suit land. The Appellate Tribunal Chairman gave as a reason for arriving at a decision on the pecuniary limitation of ~ Page 3 of 10 the Ward Tribunal that, it is because the suit land was situated within the Municipal area and that the Chairman was assured himself that the area of the suit land was more than 8 or 10 acres, Mr. Kamara further submitted. In reply, Mr. William sought support of

Sections 15 and 33(2) of the Land Disputes Court Act; [Cap.216 R.E 2002] arguing that, the law does not mandatorily require valuation but estimation. Furthermore, Mr. William submitted, in terms of section 15 of the Land Disputes Court Act; [Cap.216 R.E 20021 a Ward Tribunal lacks jurisdiction where the value of the suit land is more than Tshs.3,000,000/ =. Mr. William prayed that since the record is unclear on the value of the suit land, this Court should be pleased to order that, the matter be lodged in a competent Tribunal in respect of the jurisdiction issue. On the submissions of the parties on the issue of the pecuniary jurisdiction of the trial Tribunal, I am at one with the submission of Mr. Kamara that, that issue was not raised before the Ward Tribunal. Unfortunately none of the parties in this appeal managed to establish the value of the suit property before the Ward Tribunal and there was no Valuation Report on the value of the suit property that has been prepared and tendered in evidence. It is true as Mr. William rightly submitted that, in terms of section 15 of the Land Disputes Court Act; [Cap.216 R.E 20021, a Ward Tribunal lacks jurisdiction where the value of the suit land is more than Tshs.3,000,000/ =. In other words a Ward Tribunal only has jurisdiction to hear land disputes over property the value of which is Tshs.3,000,000/=. Much as the disputed land was

not valued, however considering its size which as per the Court record is more than three Page4of10 ~ quarters of an acre, and its location, which is near the shores of Lake Victoria, clearly its value would most probably be over Tshs.3,000,000/=. The nagging issue before this Court is whether it was proper for the Appellate Tribunal Chairman to raise the issue of the pecuniary limitation of the jurisdiction of the Ward Tribunal at the appeal stage, which issue did not feature in the proceedings at the Ward Tribunal. In determining this issue I am enthused by the statement of the legal principle in decision of the Court of Appeal of Tanzania in the case of M/s Tanzania-China Friendship Textile Co. Ltd vs. Our Lady of the Usambara Sisters, Civil Appeal No. 84/2002 (unreported) and the decision of the East African Appeal Court in the case of Mandama vs. Sigh [1965] E.A. 118 that, "the issue ofJurisdiction can be raised even in appellate stage. "This being the case therefore, it was proper for the Appellate Tribunal Chairman to raise at the appeal stage the issue of the pecuniary jurisdiction of the Ward Tribunal although it did not feature at the trial stage. Since the value of the suit property go to the root of the matter in that it touches and concerns the jurisdiction of the trial Tribunal, in considering the nature of the suit land, the Ward Tribunal ought to have satisfied

itself on its pecuniary jurisdiction to entertain the suit. In the event a Tribunal clothes itself with jurisdiction which it does have under the law, and since matters of jurisdiction are of the law, in the absence of jurisdiction all that which that Tribunal will determine is a nullity and liable to be quashed and set aside. The Appellate Tribunal Chairman having noted that, the value of the disputed land was more than Tshs.3,000,000/= which is over and above the pecuniary jurisdiction of the Ward Tribunal, this would make the Page 5 of 10 Pasiansi Ward Tribunal in Land Case No.50/BK/PASIANSI of 2009 to have overstepped its jurisdiction and thus it was incompetent to entertain the matter which was before it and which formed the subject of appeal before the Mwanza District Land and Housing Tribunal in Land Appeal No.151 of 2009. Consequently, all the proceedings before the Pasiansi Ward Tribunal in Land Case No.50/BK/PASIANSI of 2009 must be quashed. The Claimant before the Ward Tribunal is still at liberty to institute a fresh suit before a Tribunal of competent jurisdiction. The above reasons make the first and second grounds of appeal fail and must be dismissed. Let me point out that this appeal most notably brings to the fore yet for another time, the issue whether the law makes valuation of the suit property mandatory or just estimation. It would seem that, according

to Mr. William the law does not mandatorily require valuation but estimation. In support of his argument on this particular point, Mr. William referred this Court to Sections 15 and 33(2) of the Land Disputes Court Act; [Cap.216 R.E 2002]. Section 15 of the Land Disputes Court Act; [Cap.216 R.E 2002] in my view provides for the general limitation on the pecuniary jurisdiction of a Ward Tribunal in ''all proceedings of civil nature relating to land based on the pecuniary value of the disputed land or property which is set at three million shillings." In my considered, the phrase "set at" implies that the value is certain and the only way this could be done is by having a Valuation Report prepared by a qualified and competent Valuer, and in a rural setting this is normally done by Agricultural Extension Officers. It will Page6of11 ~ therefore not be too farfetched to haphazard a statement that there is clearly an inherent practical problem in the provision of section 15 of the Land Disputes Court Act, [Cap.216 R.E. 2002] when it comes to determining the ''pecuniary value of the disputed land or property" for purposes of knowing whether the value of the dispute land or property which is a subject of a suit lodged before a Ward Tribunal falls within the threshold limit of Tshs. 3,000,000/=. In this regard some quarters have been struggling with a solution by arguing that there has

to be a valuation report on the value of the disputed land or property. The law as it currently stands does not therefore provide expressly how a Ward Tribunal is to go about in determining whether the subject matter in a land dispute lodged before it has a pecuniary value of Tshs. 3,000,000/=. It would seem that, and as it could be gathered from this appeal, one possible way of going about this problem is by looking at the size and location of the disputed land. The law however, in so far as the pecuniary jurisdiction of the District Land and Housing Tribunal is concerned, states categorically that it is limited, ''in proceedings for the recovery of possession of immovable properf½ to the value of the property which does not exceed fifty million shillings' (sec. 33(2)(a) of Cap.216); and in other proceedings where "the subject matter is capable of being estimated at a money value, to proceedings in which the value of the subject matter does not exceed forty million shillings' [sec. 33(2)(b) of Cap.216]. The phrase "capable of being estimated at a money value' in section 33(2)(b) of Cap. 216, does not appear in section 15 of cap.15 of the Act. This would therefore make the submission by Mr. William that the law does Page7of10 ~ ·• not mandatorily require valuation but estimation, with respect, misplaced, since the term "estimation' is in relation to the pecuniary jurisdiction

of the District Land and Housing Tribunal "in other proceedings where the subject- matter is capable of being estimated at a money value" and not in relation to the pecuniary jurisdiction of a Ward Tribunal. On the third ground of appeal, Mr. Kamara stated that, the law enjoins the Chairman to give reasons for departing from the opinion of the assessors who had reached a unanimous decision that, the suit land was the property of the Appellant. In reply Mr. William referred this Court to page 6 of the Judgment of the Appellate Tribunal, where the Appellate Tribunal Chairman stated that, having given legal position on the matter that is why he did not take into account the opinion of the assessors and did not explain his reasons for departing with their opinion. The participation of assessors in the decision making process of the Land Tribunals is a matter of the law. Section 10(1) of the Land Disputes Court Act; [Cap.216 R.E 2002] vests jurisdiction and powers in land disputes on each Ward Tribunal established under the Ward Tribunals Act, which for all intent and purposes, it is a Court. In so far as the Coram of a Ward Tribunal is concerned, the law stipulates expressly that the Tribunal "shall" sit with assessors and that their opinion is binding on the Chairman. In the eyes of the law, assessors are therefore part of the Ward Tribunal (court). The law enjoins the Chairman of

the Tribunal to consider the opinion of the assessors and in the event the Chairman departs from their opinion, to assign reasons for such departure. However, as Mr. William rightly submitted, assessors being "judges of fact' their opinion is basically Page8of10 ~ .• on matters of facts and not of law. Consequently, the Chairman having raised a point of law suo motu regarding the pecuniary jurisdiction of the Ward Tribunal, and having determined the appeal solely on that issue, it would have been asking too much of the assessors as ''judges of fact' to give their opinion on that very point of law. That being the case, in my considered view, it was therefore not necessary for the Appellate Tribunal Chairman to consider and give reasons for departing from the opinion of the assessors. The above reasons make the third ground of appeal also fails. It is hereby dismissed. On the fourth ground of appeal, Mr. Kamara submitted that, the Appellate Tribunal erred_ in not recognizing the fact that, the Appellant had been in occupation of the disputed land since 1980 undisturbed until 2009, when the dispute arose, a period of thirty three (33) years. The Chairman of the Tribunal denied himself the opportunity to determine who the rightful owner of the suit land was by quashing the decision of the Ward Tribunal on the ground of lack of pecuniary jurisdiction, Mr. Kamara surmised. In reply

Mr. William stated that, the Chairman did not base his decision in determining who the lawful owner of the suit land. As such this particular ground of appeal ought not to have been brought. The Appellate Tribunal concerned itself with the competency of the Ward Tribunal and ordered the matter to be lodged before a competent Tribunal. Surprisingly, the Appellant lodged an appeal instead. I am at one with the submission of Mr. William, that indeed the basis of the decision of the Appellate Tribunal Chairman was on legal Page 9 oflO ~ ,Jl ., ,.,,..!1'., .... ~ . \ , '7• tf! If technicalities. Apparently, the Ward Tribunal Judgment having been quashed for want of pecuniary jurisdiction, the Appellate Tribunal Chairman did not even have power to determine the question of ownership on its merits. It would have been inimical, in my view, for the Appellate Tribunal to be expected to entertain issues of ownership on their merits for this would made the Appellate Tribunal take a journey outside jurisdiction. It is for the above reasons that the fourth ground of appeal collapses. It is hereby dismissed. In the whole and for the above reasons, this appeal fails in its entirety and accordingly it stands dismissed. The decision by the Mwanza District Land and Housing Tribunal in Land Appeal No.15"1 of 2009 is hereby upheld and confirmed. All the proceedings before the Pasiansi Ward Tribunal

in Land Case No.50/BK/PASIANSI of 2009 stand quashed and set aside. · The Claimant before the Ward Tribunal is still at liberty to institute a fresh suit before a Tribunal of competent jurisdiction. The nature of this matter and the conditions of the parties are such that I shall not make any order for costs. Each party shall therefore bear his own costs in this appeal. It is accordingly so ordered. R.V. MAKARAMBA

JUDGE Page 10 of 10