SIDETA SHABAQUTI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA

AT BABATI MISC. LAND APPLICATION NO. 16526 OF 2024 (C/f Land Appeal No. 1 of 2024 High Court of the United Republic of Tanzania at Manyara) SIDETA SHABAQUTI................................................................. APPLICANT

VERSUS GINYOKA GICHENOGA.......................................................... RESPONDENT

RULING 10th October & 13th November 2024 KAMUZORA, J. In this application, the applicant is seeking for a certificate on point of law to appeal to the Court of Appeal of Tanzania against the decision of this court in Land Appeal No. 1 of 2024. The application was brought under section 47(3) of the Land Disputes Courts Act [Cap 216 R.E 2019] (herein referred to as the LDCA) and section 5(2)(c) of the Appellate Jurisdiction Act [Cap 141 R.E 2019], (hereinafter referred to as the AJA). The application is supported by the affidavit sworn by the applicant but contested by the respondent through counter affidavit. Page 1 of 10 Briefly as it could be gathered from the record, before Laghanga ward tribunal, the applicant unsuccessfully sued the respondent for recovery of a piece of land measuring about one acre. The applicant was displeased with the decision of the trial ward tribunal and he successfully appealed against it before the district land and housing tribunal at Babati. The respondent appealed against the decision of the appellate tribunal to this court which ordered the appeal before the appellate tribunal be heard afresh. When the matter was remitted back to the appellate tribunal, the applicant lost the appeal as the decision of the trial tribunal was confirmed. The applicant unsuccessfully appealed against the decision of the appellate tribunal in this court vide Land

Appeal No. 1 of 2024. He lodged a notice of intention to appeal to the Court of Appeal and this application seeking for certificate on point of law. When this application was called for hearing, Mr. Godfrey Mlingi, learned advocate represented the applicant while the respondent was represented by Mr. Lengai Merinyo, learned advocate. From the record, five points were raised as points worth consideration Page 2 of 10 by the Court of Appeal. However, the learned advocate for the applicant submitted only on two points dropped the rest of the points listed on paragraph 8 of the applicant's affidavit. In his submission in support of the application, Mr. Mlingi referred the affidavit in support of the application and submitted that the applicant has disclosed the points of law for this court to certify to the court of appeal. He urged this court to certify on; 1. Whether the ward tribunal was not properly constituted as per the law.

2. Whether the proceedings o f the ward tribunal were marred with procedural regularities. In his submission to the first point, the applicant's counsel referred section 4 of the Ward Tribunals Act [Cap 206 R.E 2019] on the composition of the ward tribunal. He pointed out that, the secretary of the tribunal is not among the members of the ward tribunal, but he was listed and signed the decision as one of the members. He argued that, in terms of section 11 of the LDCA, the composition of the ward tribunal must be in conformity with the Ward Tribunals Act. He faulted the decision of this court holding that by the Page 3 of 10 secretary being in the list of members, it did not prejudice the appellant and was not a reason to depart from the decision of the lower tribunals. On the second point on whether the proceedings of the ward tribunal were marred with procedural regularities, the applicant's counsel submitted that, the members before the ward tribunal who gave opinion were not the one who heard the matter rather, new members were appointed after the time of the members who heard the matter had lapsed and they continued in opining and deciding the dispute while they did not hear the evidence. That, the 1st appellate tribunal confirmed the irregularities by stating that parties agreed for new members to continue with the matter. That, this court also agreed that the parties'

agreement for the member to continue with the matter signified that the proceedings were correct. He therefore prayed for this court to see that there is point of law to be determined by the Court of Appeal. In reply, Mr. Merinyo sought for this court to be guided by the case of Doria N. Mkumwa Vs. Edwin David Hamis, Civil Appeal No. 53 of 2017, CAT, TanzLii [2018] TZCA, 221 at page 1 and 10 to 11 which insisted that Page 4 of 10 certificate on point of law has effect of finality for matter originating from the ward tribunal. He prayed for this court to consider that the suit arising from ward tribunal out to have been concluded at high court level. On the argument that the secretary signed the proceedings as one of the members, Mr. Merinyo submitted that such argument is baseless because the secretary signed in his capacity as secretary. That, the proceedings and even the decision show that he signed as secretary to the tribunal and not as a member. That, such fact was also observed by the High court which found no defect as the secretary is the one recording and the custodian of the proceedings. Mr. Merinyo further submitted that, the affidavit in support of application contained untrue facts by stating that the secretary signed as a member while the proceedings show that he signed as secretary. He referred case of Kidodi Sugar Estate and 5 others Vs. Tanga Petroleum Co. Ltd,

Civil Application No. 110 of 2009 (unreported) pages 4 and 5, in which the Court of Appeal dismissed an application after it discovered that the affidavit contained untrue facts. He therefore urged this court to dismiss the Page 5 of 10 application at hand. On the argument that new members made decision while they were not responsible in hearing the case, the learned advocate for the respondent submitted that this court made clear that the procedure did not result into failure of justice. He argued that, this court was addressed during appeal and even in this application on how the applicant was affected by the change of members. He was of the view that, since the ward tribunal makes decision using members, the high court found that change of members was similar with the change of magistrate in normal court or chairman in the DLHT. He submitted that, the court found that the procedures for change of members was complied with for the reasons were advanced on that change referring the proceedings of the ward tribunal of 08/04/2020 at page 56. He pointed out that, new members explained to the parties why they received and continued with the matter from where it ended and parties agreed for the new members to continue with the determination of the matter, and they signed the proceedings. He was of the view that, such procedure complied with section 15 (2) of the Ward Tribunals Act

to which it is stated that the Page 6 of 10 Ward Tribunal can regulate its own procedures. That, it also complied with section 16 (2)(a) Ward Tribunals Act by giving parties right to be heard. The respondent's counsel prayed for this consider the above argument and the case of Doria N. Mkumwa Vs. Edwin David Hamis (supra) which insisted on the simplicity of the proceedings of the ward tribunal to find that, there is no any disturbing point which needs to be referred to the Court of Appeal. Referring the case of Saul Henry Amon and another Vs Hamis Bushiri Pazi and others, Civil Application No. 264/01 of 2022 TanzLii [2024] TZCA,275 at age 22, he added that he decision of the court cannot be interfered for simple matters which did not cause injustice. He therefore prayed for this court to find that the two points raised by the applicant are weak and dismiss the application with costs. In rejoinder Mr. Mlingi essentially reiterated his submission in chief and added that the decision cannot be made by the member who had not heard the case. He insisted that justice should not only be done but seen to have been done. Having gone through the parties' rival submission and the record, the Page 7 of 10 sole issue for determination is whether the application has merits. As pointed out before, this application has been preferred under section 47(3) of the LDCA. The said provision

reads; (3) Where an appeal to the Court o fAppeal originates from the Ward Tribunal, the appellant shall be required to seek for the Certificate from the High Court certifying that there is point o f law involved in the appeal. The above provision is clear that before going for a third appeal to the Court of Appeal for the matter originating from the ward tribunal like in the instant matter, this court has to certify that there is a point of law worthy of consideration by the Court of Appeal. This was also insisted in the case of Harban Hajimosi and Another Vs Omari Hilal Seif and Another [2001] TLR 409 at page 412 it was stated as follows: - "Therefore, according to subsection (2) (c), a certificate on point o f law is necessary with appeals relating to matter originating in Primary Courts. The practice o f the High Court is to frame such a point or to approve and adopt one framed by the intending Appellant to certify it to the Court o f Appeal. " In the case of Agnes Severini Vs Musa Mdoe [1989] TLR 164, the Page 8 of 10 Court of Appeal gave guidance on how to look at point of law for certification and insisted that only points of law are to be certified as opposed to facts which call on evidence. In the instant matter while the learned advocate for the applicant claimed that there are two points of law worthy of consideration by the Court of Appeal, the learned advocate for

the respondent argued that the points raised are weak and therefore urged the court to dismiss the application. I have keenly considered the two points raised by the applicant and discovered that they both refer to the composition of the ward tribunal; composition during hearing and composition at the time of making decision. The applicant is alleging that the ward tribunal was not properly composed first, during hearing for involving the secretary who was not part of the members of the ward tribunal and two, for allowing new members who had not heard the matter to give decision. The composition of the Ward tribunal is well provided for under section 11 of the LDCA and the qualification for the members siting at the ward tribunal to determine land disputes are provided for under section 5 of the Ward Tribunal Act. The argument on the Page 9 of 10 composition of the ward tribunal and qualification of members was raised before this court and decided upon and being dissatisfied with the decision of this court on that point, the applicant intend to seek for further interpretation of the Court of Appeal. The issue on the composition and qualification of members of the ward tribunal in determining land dispute is the matter of law. I therefore find that what was raised by the applicant in his application is a point of law worthy of consideration by the Court of Appeal. In that regard, I hereby certify one point of law to the Court of Appeal as follows; "Whether the ward tribunal was properly constituted during hearing o f the dispute and when making decision." The application is therefore granted to the extent shown above. In the circumstance, I order each party to bear its own costs. DATED at BABATI this 13th day of November, 2024. Page 10 of 10