salum ngwembe vs hadija rashid msusa 2021 tzhclandd 802 18 november 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPEAL NO. 70 OF 2021 (Arising from the District Land and Housing Tribunal for Ulanga at Mahenge in Land Application No.357 of 2019 Originating from the Ward Tribunal of Milola in Land Case No.54 of 2016) SALUM NGWEMBE.................................................................. APPELLANT VERSUS HADIJA RASHID MSUSA................................................RESPONDENT JUDGMENT Date of Last order: 15.11.2021 Date of Judgment: 18.11.2021 A.Z.MGEYEKWA, J This is the second appeal. The appellant is appealing against the decision of the District Land and Housing Tribunal for Ulanga at Mahenge in Land Application No. 32 of 2019 delivered on 15th September, 2020. Briefly, the facts which bred the instant appeal are quite straightforward. They roll back to Mlola Ward Tribunal in Land Application No. 54 of 2019 whereby the respondent claimed the appellant has invaded his portion of land. Before the trial tribunal, the appellant preferred to transfer the case from the Ward i Tribunal to the District Court Land and Housing Tribunal where he can be represented. The Ward Tribunal decided to proceed with hearing the case and decided in favour of the respondent. Dissatisfied, the appellant lodged an application before the appellate tribunal and raised six grounds of appeal. On the second ground, the appellant faulted the trial tribunal for failure to consider his request to transfer the case from the trial tribunal to the District Court Land and Housing Tribunal for the reason that he wanted to be represented by an Advocate. The District Court determined the matter and dismissed the application after finding that there were no genuine reasons for transferring the case from the trial tribunal. Being aggrieved the appellant has taken his battle to this Court, seeking to assail the decision of District Land and Housing Tribunal for Ulanga at Mahenge. She has coined three grounds of appeal as follows:- 1. That the Appellate Tribunal erred in law and in fact in failing to consider that on 4th April, 2019 the appellate Tribunal did issue the letter to the trial Tribunal of Milola requiring the trail Tribunal to transfer Land Dispute No. 54 of 2016 to the appellate tribunal of District Land and Housing Tribunal for Ulanga at Mahenge. 2. That Appellate Tribunal erred in law and in fact in failing to consider there was a violation of constitutional right or legal representation of the 2 Appellant in Land Dispute No. 54 of 2016 made by the Trial Tribunal thereto. 3. The Appellate Tribunal in law and in fact in failing to consider preposition made by the Appellant in the Trial Tribunal that since there was an order from the Appellate Tribunal of transferring of Land Dispute No. 54 of 2016 to the appellate Tribunal via letter dated 4th April, 2019 of the appellate Tribunal thereof. 4. That the Judgment of the Appellate Tribunal was delivered on 15th September, 2020 and the certified copy judgment was ready for collection on 3rd March, 2021 and extracted decree was ready for collection on 3rd March, 2021 thus this appeal is with prescribed time of 60 days The suit was argued before me on 15th November, 2021. It was argued exparte, the respondent failed to enter appearance despite being properly served. The appellant served the respondent by substitution of service. The service was published in Mwananchi Newspaper dated 22nd October, 2021. There is no dispute that the respondent, by way of publication in Kiswahili tabloids - Mwananchi was served. Therefore, I grant the appellant’s Advocate prayer to proceed exparte against the respondent. Mr. Augustino Kusalika, learned counsel for the appellant started his onslaught by seeking to consolidate all grounds of appeal argued them 3 together. In his submission the learned counsel for the appellant claimed that the appellant is dissatisfied by the decision of the appellate tribunal thus he decided to file the instant appeal. He contended that the matter before the trial tribunal in Land Application No. 54 of 2016 the appellant wrote a letter and the same was received on 04th April, 2019 showing his intention to hire an Advocate to represent him in the said case. The appellant’s Advocate stated that the District Land and Housing Tribunal for Kilombero now Mahenge instructed the Secretary of the trial tribunal to remit the file to the District Land and Housing Tribunal in order to allow the appellant to be represented by an Advocate. The learned counsel for the appellant continued to submit that the trial tribunal in its judgment specifically on page 3 stated that on 13th March, 2019 that both parties appeared in court but the appellant was not ready to proceed with the hearing since he decided to hire an Advocate. Stressing, Mr. Kusalika contended that the trial tribunal was fully informed about the engagement of an Advocate. He blamed the appellate tribunal for deciding that there is no such requirement of representation at the trial tribunal. Mr. Kusalika stated that Article 13 of the Constitution gives a party right to be represented. 4 On the strength of the above submission, Mr. Kusalika beckoned upon this court for the interest of justice to allow the appellant to be represented. He prayed for this court to quash the decisions and proceedings of both tribunals and order the hearing to proceed in accordance with the law. After a careful perusal of the record of the case and the final submissions submitted by both parties. In determining the appeal, the central issue is whether the appeal is meritorious. In my determination, I will pursue the parties’ path by consolidating all grounds of appeal because they are intertwined. The appellant's advocate is claiming that the appellant is challenging the decision of the appellate tribunal in Land Appeal No.32 of 2019. The appellant contended that he was denied his right to representation. The circumstance of the case, facts, and evidence will lead this court to determine the matter before it. I have gone through the Ward Tribunal of Milola in Land Application No. 54 of 2019 and noted that the appellant main purpose to seek transfer of his case from the Ward Tribunal to the District Land and Housing Tribunal is because he wanted to engage the service of an Advocate to defend him who could not appear and defend him at the Ward Tribunal. In the interest of justice, he urged the appellate tribunal to transfer the Land Application No. 5 54 of 2019 which is pending at the Ward Tribunal of Milola to the District Land and Housing Tribunal where the appellant can have legal representation. It is worth noting that there is no provision in the Land Disputes Courts Act Cap. 216 [R.E 2019] that allows the transfer of cases from the Ward Tribunal to the District Land and Housing Tribunal. The law required a matter to be determined based on its jurisdiction. I find that the appellant had no pressing issue that attracts the District Land Housing Tribunal to transfer the case from the Ward Tribunal to the District Land and Housing Tribunal. The appellant’s Advocate has claimed that it is the appellant’s constitutional right to have a legal representation. In my view, regardless of the right of legal representation is a constitutional right for every person. In case the appellant insisted to be represented then the matter would have been struck out and the Ward Tribunal ordered the parties to lodge a case at the District land and Housing Tribunal. But as rightly decided by the appellate tribunal that the Ward Tribunal could not transfer the said suit because transfer of cases is not provided for under the Land Disputes Courts Act, Cap. 216 [R.E 2019], 6 It is also a cardinal principle of the law that the need for legal representation cannot give the court jurisdiction which it does not legally have. The court is duty-bound to entertain matters n accordance with the law if the case can be entertained by the Ward Tribunal and the same had actually been instituted, it cannot be transferred to the District Land and Housing Tribunal for a mere reason that tne appellant has decided to engage an Advocate I would be in oosition to rescue the miscarriage of justice 'f the case could have been tried at the wrong court, or for any other reasonable grounds justice will not be attained. The law requires a suit io be fned in the courts of the lowest grace with competent jurisdiction to try them as stipulated under section 13 of tne Civil Procedure Code Cap 16 [R.E 2019], In the case of M/S Tanzania - China Friendship Textile Co. Ltd v Our Lady of Usambara Sisters (2006) TLR 70, the Court of Appeal of Tanzania held that- "According to the principle contained in section 13 of the Civil Procedure Code, every suit must be instituted in the court of the lowest grade competent to try it” In consequence, I fine tnat tnere is no merit in these grounds of grievance. That said and done, I hold that in instant appeal there are no 7 extraordinary circumstances that require me to interfere with both tribunals findings Therefore, I proceed to dismiss the appeal without costs Order accordingly. Judgment delivered on 15th April. 2021 via audio teleconference wnereoy the appellant was remotely present A Z MGEYEKWA h JUDGE 15.04.2.021 8