sylvester magwila vs shomari shabani 2022 tzhc 15477 30 november 2022

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA LAND DIVISION MOROGORO DISTRICT REGISTRY AT MOROGORO LAND APPEAL NO. 125 OF 2022 (Arising from Land Appeai No. 120 of2021 ofthe District Land and Housing Tribunai in originai Land Dispute ofMkundi Ward Tribunai) SLYVESTER MAGWILA APPELLANT VERSUS SHOMARI SHABANI RESPONDENT RULING Date of last order: 16.11.2022 Date of Ruling: 30.11.2022 MALATA. J This appeal came for hearing on 16^^ November,2022 and the parties representation were Mr. Frank Ngafunika, learned advocate appeared for the appellant while the respondent enjoyed the service of Mr. Alpha Boniface, learned advocate. Before commencing hearing, this court brought to the attention of both learned counsels on the validity of the Page 1 of6 appeal and ail decision and its proceedings originating from Mkundi Ward Tribunal which inquired and determined Land Dispute after cessation of jurisdiction following amendment of section 13 of the Land Disputes Courts Act Cap.216 R.E.2019 vide Written Laws (Miscellaneous Amendments)Act, No.3 of 2021. Before amendment section 13 of the said Act read; 13. Genera/jurisdiction (1)Subject to the provisions ofsubsection (1) ofsection 8 of the Ward Tribunais Act, the primary function of each Tribunal shaii be to secure peace and harmony in the area for which it is established, by mediating between and assisting parties to arrive at a mutually acceptable solution on any matter concerning iand within its jurisdiction. (2) Without prejudice to the generality of subsection (1), the Tribunai shaii have jurisdiction to enquire into and determine disputes arising under the Land Act and the Viiiage Land Act.[Cap. 113; Cap. 114]''[emphasize is added] Section 13(2) of the Land Disputes Courts Act was amended by the Written Laws (Miscellaneous Amendments) Act, No.3 of 2021 Page 2 of 6 > which was published in the Gazette of the United Republic of Tanzania No. 102, Vol. 41 dated on 11*"^ October, 2021. It reads; "45. The principal Act is amended in section 13 by- (a) deleting subsection (2)". After amendment of section 13 (2) of the Act by deleted subsection (2) herein, the Ward Tribunal ceased to jurisdiction to inquire into and determine disputes arising under the Land Act and the Village Land Act with effect from the date of publication stated herein above. In the circumstances, section 14 of the Interpretation of the Laws Act [Cap. 1 R.E 2019] gives a guidance as follows; "14. Every Actshallcome Into operation on the date of Its publication in the Gazette or, ifit is provided either in that Act or in any other written iaw, that it shall come into operation on some other date, on that date". [Emphasize added] Based on the above status. Ward Tribunals ceased to have jurisdiction to inquire into and determine disputes arising from the Land Act and the Village Land Act with effect from 11^^ October, 2021 following the publication of the said amendment. The advocates were informed that, the records shows that Mkundi Ward Tribunal ('The trial tribunal") inquired Page 3 of 6 and heard land dispute between the parties herein and delivered its decision on November, 2021 being one month after coming into operation of the said amendment on 11^^ October, 2021. Having read the said amendment, it was the view of this Court that the amendment deleted Ward Tribunals in Mainland Tanzania with jurisdiction to hear and determine land disputes with effect from ll'^^ October, 2021 save mediation jurisdictions over land disputes. The court invited both learned advocates to address on the validity of the decision of Mkundi Ward Tribunal issued after commencement of the said amendment(supra) and the effect of cessation of the ward tribunal's jurisdiction to hear and determine land disputes. Mr. Ngafunika advocate for appellant submitted that with the commencement of the amendment of the Land Disputes Courts Act on 11^*^ October, 2021 all ward tribunals ceased to have jurisdiction to hear and determine land matters but retained mediation jurisdiction only. Adjudication mandates ceased and vested to the District Land and Housing Tribunal. Although the present dispute commenced before the commencement of the said amendment, the proceedings subsequent to the commencement of the amendment was entertained by the Ward Tribunal without jurisdiction. He submitted further that since jurisdiction Page 4 of 6 is a constitutional or statutory creature and that there is no provision from any law exempting the pending dispute in Ward Tribunal to proceed in any way following the commencement of the amendment. Therefore, the decision of Mkundi Ward Tribunal and the DLHT are nullity. He thus prayed for nullification all proceedings, decisions and orders of the of both Ward Tribunal and District Land and Housing Tribunal, the present appeal inclusive. As the matter was raised by the Court suo motto, the learned advocate prayed for no order as to cost. Mr. Alpha Boniphace, learned advocate for the respondent shared the same view with Mr. Ngafunika's submission and had nothing to add. Having gone through the submissions by both counsels, I am in inclined with both learned advocates that, Mkundi Ward Tribunal had no jurisdiction to inquire and determine the said land disputes as it had no jurisdiction to do so with effect from October, 2021. Since, the trial tribunal had no jurisdiction, the proceedings and orders made therefrom were nothing but a nullity. Consequently, this court holds that, the proceedings and decision of both Mkundi Ward Tribunal and the District Land and Housing for Morogoro Tribunal were nullity. Eventually, this court hereby nullifies the said proceedings and decisions. As such, this Page 5 of 6 appeal has no leg to stand on, consequently, it stand dismissed. Each party shall bear his own cost. It is accordingly ordered DATED at .GORO this 30^*^ November, 2022 Lli y G.P. MALATA JUDGE So™ NOVEMBER,2022 Court Ruling delivered on November, 2022 in chamber in the presence of the respondent in person and in the absence of the appellant. -< Uj k G. P. MALATA I > JUDGE 30/11/2022 30™ NOVEMBER, 2022 Page 6 of 6