20160524 TZHC Mwanza

IN THE HIGH COURT Of TANZANIA ' t(l9 . AT MWANZA LAND APPEAL NO. 66 OF 2014 (From the Decision of the District Land and Housing Tribunal of Mara at Musoma/ in Land Case Appeal.25 of 2012,. Original Application No. 6 of 20.12 at Ba/iii Ward Tribunal} . -~ >';1 .,J SHASHI BARNABAS KUBINI ........................... APPELLANT .,...,l '! : VERSUS FELISTER NYAKWE KUBINI ........................... RESPONDENT ·I l JUDGMENT OF THE COURT 24/05/2016 &24/ 5/2015 Gwae J. This is a second appeal filed by the appellant named ~bove challenging the concurrent decisions of Balili Ward Tribunal (to be referred to as trial tribunal) and District Land and Housing · Tribunal (DLHT-appellate tribunal) whereby the respondent he has been declared a lawful owner of the suit house.· The appellant lodged his grievances to this court by way of an appeal; there two grounds of appeal in his petition of appeal, ) ~ namely:- 1 __ .,..._ ' ~ --ze·- ~~~~ --~-·:~~-:·-_ .~ ~- - .,;-: ·. · :r -·-e • 1. That the trial tribunal erred in law and fact for failing to .. ·, ... ' ,,,. i V find that the Ward Tribunal had no jurisdiction to ". /'..\.jl, determine this dispute for lack of pecuniary jurisdiction. • #.\. (~\1.... ·' n1 2. That the trial tribunal chairperson erred in law and fact ~' _·.1 .·'; for failing to find that the dispute was purely on matters of administration of estates hence not a land dispute. The respondent when was served with a copy of the appellant's - petition of appeal, vigorously disputed the grounds of appeal by stating that the appellant was the one who lodged the matter at first. instance and that the appellate tribunal based its decision on the ground that the respondent is the lawful owner of the house in dispute. At the hearing of the appellant's appeal, both parties were not represented; hence they personally fended their respective position. The appellant submitted he is an administrator of his late father, Thomas ~ubuni and that ·want he w_anted when instituting the case against his sister in law, the respondent (wife of the app_ellant's elder brother) is guarantee or assurance of access and use of the house of the late Victor, his brother (the respondent's late husband) by the respondent to the deceased's beneficiaries.~ 2 The respondent vigorously submitted that the suit house was . ':"j ,: . ,', j 0 acquired by joint efforts of her late husband, victor, which is ~-·i- .{ ,I .t . among the deceased's estates administered by herself after she had been appointed an administrator by Nyamagana Primary Court vide Probate cause No. 120 of 2015. She further submitted that this dispute is part of the Probate which she has obtained letters of administration. As to the first issue, looking at the evidence and subject matter I think, it goes without saying that the trial tribunal had no pecuniary jurisdiction as the house is a modern one, with more than four rooms, it cannot therefore be said it has value less than three million, the pecuniary jurisdiction of ward tribunal is limited to subject matter with value not more than three millions.The position is clearly provided for under section 15 of Land Disputes Courts Act, (Cap 216, R. E,2002), reproduced herein below: 15. notwithstanding the provisions of section 10 of the _ward Act, 1985, the Jurisdiction of the Tribunal shall in all proceedings ., of a civil nature relating to land be limited to the disputed land or property valued at three million shillings". In view of the above quoted statutory provision, the ward tribunals are ousted with jurisdiction whenever a dispute is on subject matter (land) is more than three million, it is in this l i n e ~ - 3 the ward tribunals should always ensure that the value of subject matter (s) is indicated by the parties so that they can be in a better position to ascertain jurisdiction otherwise failure to do so will lead to delay in dispensation of justice, I say so for very obvious reason that in many land disputes, litigants who lose their cases tend to raise issue of pecuniary jurisdiction as an afterthought, as the case here, where the appellant was the one who lodged the dispute in the trial tribunal but surprisingly he is the one who is found complaining that the ward tribunal lacked pecuniary jurisdiction, the tribunals are therefore directed to be very carefully as to the jurisdiction, particularly pecuniary jurisdiction and abstain from assuming jurisdiction, thinking that disputes will end up there. The need to indicate value of subject has been judicially stressed in various courts decisions, for instance in the case of Kerama Enterprises Co. LTD and 2 others vs Exim Bank, Comm·ercial case no. 12 of 2013 (unreported) where his Lordship, Makaramba J, stated that: "I should point out he_re also that apart from the statement in the plaint of the value of the subject matter of the claim being crucial in the determining the jurisdiction of the court, it is also important f o r ~ ~ . the filling fees" · 4 Coming to the second ground of appeal, I am of the considered • I ~ view that the ward tribunal when admitting/ hearing land disputes filed before them must ensure that the same are land related matters but should not be disputes on land but based on probate and administration or matrimonial litigation, this has also been an area of confusion by the ward tribunals. Thus facts of the case are very vital in determining whether the matter at hand is land related matters fit for adjudication by land tribunals or ordinary . courts. In our present appeal, both parties have rightly conceded that the house in dispute is among the estates of deceased, the respondent's late husband and the appellant submitted that what he was seeking is an assurance of access and use of the suit house by all deceased's heirs. The respondent had submitted that she had been appointed an administrator of the estates of her late husband vide Probate Cause No. 120 of 2015 lodged at Nyamagana Primary Court. It is therefore clear tha_t the matter was hot land dispute per· see to be entertained by the ward tribunal as the same is about manner of administering deceased's estates by the appointed administrator among the heirs, the respondent~ -- 5 The Ward tribunals do exercise their powers relating to the land . v disputes by virtue of Land Disputes Act (supra), Land Act 1999, Village Act, 1999 as well Ward Tribunal" Act, 1985 as provided for under section 13 of the Cap 216 (supra), 13.-(1) Subject to the provisions of subsection (1) of section 8 of the Ward Tribunal.. .. (2) Without prejudice to the generality of subsection (1), the Tribunal shall have jurisdiction to enquire into and determine disputes arising under the Land Act, 1999 and the Village Land Act, 1999. Since the above statutory provisions are unambiguous, the ward tribunals or District Land and Housing Tribunals have no jurisdiction on matters which are probate or matrimonial related though they involve land as the laws applicable are different. In our case, it was the appellant who wrongly filed the dispute however after he had lost the case in the two tribunals; he opined to raise the sam.e as an afterthought, this. is wrong and amounts to ·wastage of precious time and money as well. In the circumstances of this appeal and in view of the _above given reasons, the proceedings and decisions of the land tribunals below are hereby quashed, appellant is advised to adhere to the . . procedures laid dow_n in case the appointed administrator is not ~ t ~ ,.. I. 6 t I. properly or equally administering the estates of her late husband 0 / to the entitled heirs, including herself. I find it just and fair to make no order as to costs in other words each party shall bear its costs of this appeal and tribunals below. It is so ordered. M. R. IL,,__,,...,, .Judge 24/05/2016 Right of appeal explained ~'fm~--- M. ri:''~e Judge 24/05/2016 Court. Judgment rendered in chamber court in the presence of the appellant and respondent. M. R. Gwae Judge_ 24/05/2016 Court. Copies of the judgment are obtainable by 30/05/2016 pursuant-to _ ~- __ provisions of order xxxix rule 36 of c~~ . --..;::..... . M. R. . · Judge · ~ 24/05/2016 I z\- \~ > ,,>- \\--r '"I("' it 7 :--.. -.c;;:::;