JUDGMENT TABU MWANOVELA VS GIDIO HALINGA

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA LAND APPEAL NO. 26045 OF 2023 CASE REFERENCE NO. 20231123000026045 (From Application No. 30 of 2021 in the District Land and Housing Tribunal for Mbarali) TABU MWANOVELO (as administrator of estates Of the late ZUBERI MWANAVISI) ............................................ APPELLANT VERSUS GIDION HALINGA ................................................................ RESPONDENT JUDGMENT 3rd September & 26th November 2024. NONGWA, J. In the District Land and Housing Tribunal for Mbarali at Rujewa (the DLHT) vide application No. 30 of 2021, the appellant sued the respondent for trespass over the piece of land mearing 13 feet width and 16 feet length. He alleged that it under his administration since his appointment in 2020 until in 2021 when the respondent trespassed it. He thus prayed the suit land be declared property of the deceased, that the respondent is the trespasser and costs of the suit. 1 The respondent through his written statement of defence, disputed the claim. He alleged was the lawful owner. There were several adjournments of the case due to absence of parties until on 23/3/2023 when the respondent defaulted appearance as the result the application was ordered to proceed ex-parte. At full trial the tribunal found the appellant had failed to prove his claim. Thus, dismissed it, hence this appeal. In the memorandum of appeal, the appellant has raised three grounds of appeal one, that the trial tribunal erred in law and fact to entertain the matter while having no jurisdiction over the same; two, that the trial tribunal erred in law and fact to hold the appellant failed to prove on how much land the deceased owns apart from the land in dispute; and three, that the trial tribunal erred in law and fact for failure to properly evaluate and analyse the evidence. When the appeal came for hearing the appellant was represented by Mr. Iman Mbwiga of Chosen Law Firm. The respondent did not appear hence the appeal proceeded ex-parte against him. It was agreed the appellant dispose the appeal by filing written submission. Having considered the grounds of appeal and written submission, the appeal can be disposed based on ground one only, thus submission in respect of the remaining grounds will not be recapitulated here. 2 In the first ground Mr. Mbwiga submitted that the DLHT had no jurisdiction to adjudicate the matter as there was no certificate from the ward tribunal that it failed to mediate the parties. He stated, section 13 of the Land Disputes Courts Act, Cap 216 requires all proceedings affecting interest and title in the land to pass before the ward tribunal before being referred to the DLHT and has to be accompanied with certified certificate of settlement. In support cited the case of Francis Nyamiti vs Baragi Bomani, Land Appeal No. 14 of 2022 [2023] TZHC 16783 (31 March 2023; TanzLII). He submitted that jurisdiction is a creature of statute and it cannot be assumed at the will of the parties. Counsel referred the court to the case of Michael Joachim Tumaini Ngalo vs Jitesh Jayantil Ladwa, Civil Case No. 18 of 2021 [2022] TZHC 13881 (7 October 2022; TanzLII) and Sospeter Kahindi vs Mbeshi Mashini, Civil Appeal No. 56 of 2017 [2018] TZCA 223 (10 October 2018; TanzLII). Counsel contended at page 17 of the proceedings that the appellant stated to have passed to the ward tribunal but no certificate was produced. He concluded the DLHT was precluded from hearing the matter as it was pre- maturely filed. Having considered the submission as rightly submitted by Mr. Mbwiga Jurisdiction of the court is the bedrock to try any matter, without 3 it everything done is a nullity. In the case of CRDB Bank PLC vs Lusekelo Mwakapala, Civil Appeal No. 143 of 2021 [2023] TZCA 17637 (22 September 2023, TanzLII), it was held that: ‘It is worth noting that, the question of jurisdiction is crucial and must be determined by the court/tribunal at the earliest opportunity. Jurisdiction is everything without which a court has no power to determine the dispute before it. Where a Court has no jurisdiction there would be no basis for a continuation of proceedings. Generally, a court is barred to entertain a matter in which it has no jurisdiction.’ The present matter concern interest in the land which is adjudicated by the courts and tribunal mentioned under section 167(1) of the Land Act Cap 113 and 62(2) of the Village Land Act, Cap 114. Previously the Ward Tribunals had powers to inquire into and determine disputes arising under the Land Act and the Village Land Act and also the powers to order recovery of possession of land and other powers the under sections 13(2) and 16(1) of the Land Disputes Courts Act. However, such powers have been immensely stripped off through section 45 of the Written Laws (Miscellaneous Amendment) Act, 2021, which amended section 13 of the Land Disputes Courts Act. It provides; ‘45. The principal Act is amended in section 13, by- (a) deleting subsection (2); 4 (b) re-numbering subsections (3) and (4) as subsections (2) and (3) respectively; and (c) adding immediately after subsection (3) as re numbered the following (4) Notwithstanding subsection (1), the District Land and Housing Tribunal shall not hear any proceeding affecting the title to or any interest in land unless the ward tribunal has certified that it has failed to settle the matter amicably: Provided that, where the ward tribunal fails to settle a land dispute within thirty days from the date the matter was instituted, the aggrieved party may proceed to institute the land dispute without the certificate from the ward tribunal. (5) The Minister responsible for legal affairs may, in consultation with the Minister responsible for ward tribunals and Minister responsible for lands, make rules prescribing the conduct and procedure of mediation of land disputes.’ [Emphasize supplied.] Subsection (4) prescribes two conditions one, the ward tribunal must issue certificate, certifying it has failed to settle the matter amicable and two, if the ward tribunal fails to settle a land dispute within thirty days, then the matter may be filed to the DLHT without a certificate of mediation. In this appeal, there is no proof that the dispute was referred to the ward tribunal to settle the matter amicable or that the tribunal failed to settle the dispute within thirty days as required. 5 Record reveals at page 17 that the appellant disclosed to have referred the matter to the ward tribunal but the respondent defaulted to appear. He said; ‘Maombi haya yameletwa bila hati ya baraza la kata ya kushindwa kusuluhisha sababu nilienda baraza la kata tarehe 12/10/2021 walimwita Gidion hakuitikia wito. Walimwita mara tatu, hakufika. Hivyo nikaja kufungua shauri hili...’ My translation ‘This application has been brought without certificate of mediation because I went to the ward tribunal on 12/10/2021they summoned Gidion did not respond to summons. the summoned three times did not appear. Therefore, I came to institute this case…’’ The above testimony tells the respondent refused to accept summons, the reason he proceeded to institute the claim in the DLHT. In effect the procedure when the respondent declines to accept summons is to proceed ex-parte, however in regard to mediation is to mark mediation failed. I understand, section 13(5) requires the minister to make rules prescribe how mediation before the ward tribunal should be conducted, to date no such rules have been made. However, in 2021, the Permanent Secretary President Office issued guideline, that is Mwongozo wa Usuluhishi wa Migogoro ya Ardhi Katika Mabaraza ya Kata, 2021 issued by Katibu Mkuu, Ofisi ya Rais- TAMISEMI. My translation; Mediation of 6 Land Disputes in the Ward Tribunal Guideline, 2021 issued by Permanent Secretary, President Office, (PO-RALG). Item 4.9.1(c) provides; ‘KUTOHUDHURIAL KIKAO CHA USULUHISHI Kutoa hati ya usuluhishi ikibainisha kuwa usuluhishi umeshindikana iwapo mlalamikiwa hatahudhuria usuluhishi mara kadhaa ndani ya siku 30 baada ya kupokea taarifa ya wito.’ My translation ‘FAILURE TO ATTEND MEDIATION MEETING To issue certificate of mediation prescribing mediation has failed after the respondent failure to attend mediation several time within 30 days after receiving summons to attend.’ The above, is clear that once a respondent fails to attend mediation after being notified to attend, certificate of mediation has to be issued. Evidence of the appellant is clear that the respondent did not attend mediation after being so summoned, in that circumstance, the appellant ought to obtain certificate of mediation as proof that he referred the matter to the ward tribunal. Words of mouth from the appellant that he referred the matter to the ward tribunal was supposed to be substantiated with a certificate dully issued by the said tribunal to which the dispute was referred. In absence of such proof, I agree with counsel for the appellant that the DLHT had no pre-requite jurisdiction to try a land dispute without 7 certificate of mediation from the ward tribunal. That being a jurisdictional flaw, it is a fatal error rendering both the proceedings and judgment of the High Court a nullity. In the premises, I allow the appeal on the above ground and proceed to nullify the proceedings and set aside the judgment of the DLHT. If still interested to pursue his claims, the appellant has to do so in strict compliance with the law. No order as to costs as the respondent did not appear. V.M. NONGWA JUDGE 26/11/2024 Dated and Delivered at Mbeya this 26th November 2024 in presence of Mr. Maulid Muganyizi holding brief of Mr. Iman Mbwiga. V.M. NONGWA JUDGE 8