THABITHA MASANJA

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA LAND APPEAL NO. 44 OF 2023 CASE REFERENCE NO. 20230628000508191 (Arising from Land Application No.9 of 2023 before Kahama District Land and Housing Tribunal) THABITHA MASANJA ..................................................... APPELLANT

VERSUS SOPHIA MBUKE MADILISHA ...................................... RESPONDENT

JUDGMENT 05th & 08th November 2024 F.H. MAHIMBALI, J The respondent herein had filed Land Application No.9/2023 before Kahama DLHT, for claim of his parcel of land. Prior the matter had started before Kinaga ward tribunal within Kahama Municipality, which resorted that the matter was unsettled, thus referred it to DLHT for deliberation. When the matter was fixed for hearing, the trial Chairman suo matter raised two legal issues; that the ward tribunal had pronounced 1 decision instead of issuing certificate for its failure to settle the matter, that the application did not particularise the description of land boundaries. Being the case, the trial chairman directed the parties to first refer the matter before ward tribunal for mediation and in case of non- settlement then the application to rectify his application by inserting proper description of land in dispute. The appellant is not amused with the decision of DLHT hence this appeal marshalled with three grounds of appeal coached in Swahili language, which all fault the DLHT decision for being impropriate and non- adherence to the law. Mr. Majora Robert Kalemani, a holder of power of attorney appeared on behalf of the appellant and the respondent did not enter appearance despite of being dully served, thus the matter proceeded exparte. Arguing for the appeal, Mr. Kalemani firstly prayed for this Court to adopt appellant’s

grounds of appeal to form part of his submissions. He added that it is not true that the said certificate of mediation is a decision. That is not true. It is not true that the ward tribunal had given a decision and not a mediation note on failure to reconcile. What was given is purely a certificate of unsuccessful mediation to parties and not a decision. 2 Secondly, it was not proper for the trial chairperson to intervene in the midst of the proceedings and disrupt the whole court's proceedings. Thirdly, it is not true that the suit property is not described its boundaries. Paragraph 3 read together with paragraph 6 (vi) of the plaint are vividly clear on that. Thus, he pressed for the appeal be allowed. I have closely followed the submission by the appellant, and the issue for deliberation is whether this appeal is merited. The appellant’s main complaint is the DLHT’s suo motto findings that the ward tribunal in its mediation role made a decision instead of issuing a certificate of failure to settle the matter. According to him (appellant), the ward tribunal had issued certificate of failure to settle the matter, thus the DLHT has to take recourse. The jurisdiction of Ward Tribunals is limited to mediation and securing peace and harmony in land disputes. The Ward Tribunals Act of 1985 established Ward Tribunals to help settle land disputes amicably. However, the 2021 amendment

to the Land Disputes Courts Act removed the adjudicatory power of Ward Tribunals to hear and determine land disputes. Power of the ward tribunals to hear and decide land disputes was removed through amendment made to the Land Disputes Courts Act [Cap.216 R.E 2002] by the Written Laws (Miscellaneous Amendments) Act No.5 of 2021. 3 Before this amendment, ward tribunals had the power to hear and decide land disputes provided the value of the disputed land did not exceed TZS 3,000,000. Following the said amendment, ward tribunals have only retained their primary function role of to securing peace and harmony by attempting to mediate land disputes referred to them by the parties before the dispute is referred to the District Land and Housing Tribunal for adjudication. The District Land and Housing Tribunals are not allowed to hear and decide a land dispute unless the Ward Tribunal has attempted to settle the dispute amicably and failed, and it has issued a certificate that mediation has been attempted but it failed. Where a party to the dispute refers a land matter to the ward tribunal but the tribunal fails to settle it within 30 days, the party who referred the dispute to the ward tribunal may take the matter to the District Land and Housing Tribunal without a certificate of non-settlement issued by the ward tribunal provided that he will have to prove that the ward tribunal

failed to mediate the dispute within 30 days after receipt of the complaint. See Edward Kubingwa vs. Matrida A.Pima, Civil Appeal No.107 of 2018, Sande Guruay and Another vs Axwesso Deemay, Land Appeal No.63 of 2023. 4 Upon keenly scanning of the trial tribunal’s records on the issue complained of, it is true that the trial tribunal misconceived the remarks given by the ward tribunal. The ward tribunal clearly pointed out that it had failed to settle the matter and requested the intervention of the DLHT to fully adjudicate the matter. Thus, the order of the DLHT that the ward tribunal decided the matter instead of mediating, was erroneously reached. With the complaint that the appellant (applicant’s application) was not descriptive on boundaries over the claimed land, thus, was incompetent. It is trite law that, where the subject matter of the suit is immovable property, the plaint shall contain description of the property sufficiently to identify it and in case such property can be identified by tittle number. See, Section 22 and order VII Rule 3 both of CPC, clearly putS insistence on description of the property which is a subject matter in the case. See also cases of Daniel Dagal Kanuda versus Masaka Ibaheo and 4 others, Land Appeal No.26 of 2015, Salumu Kizenga versus Moses Malaki Sewando and 18 others, Land Appeal No.51 of 2019 and the case of Amandus Kavishe versus Majaba

Action Mart, Civil Appeal No.365 of 2015. 5 Upon a thorough scrutiny of the trial tribunal’s records, I associate myself with the findings of the tribunal by holding that the suit property was insufficiently described to warrant proper identification. The application before the tribunal provides that; 3. “ kinachodaiwa ni shamba/ eneo lenye ukubwa wa ekari kumi na mbili (12) lililoko kata ya Kinaga, Kijiji cha Magobeko, kitongoji cha Mwangulu wilaya ya Kahama, Mkoa wa Shinyanga” From the extract above, it is vividly difficult to ascertain its boundaries based on compass direction. The mentioned neighbours under paragraph 6 (vi) is not descriptive as it ought to have described on which side of the land are the said neighbours bordered with. A mere mentioning of names: LUKAS LUDUDA, FRANK MAZIKU, LULANGWA JISHOSHA, SAMBO MTUNGULU, MZEE BULULA, KAZIMOTO ENOKA AND THABITHA MASANJA/ ROBERTH KALEMANI is not a sufficient description. It must have fully stated so. With the above findings, it is my firm stance that the omission rendered the application before the tribunal incompetent, thus requires for rectification. It is therefore ordered that, the appellant to rectify his application and remit before the tribunal for adjudication, without 6 prejudicing the certificate of unsuccessful mediation issued by the ward tribunal as it was complete and meaningful as per law. Thus, this appeal is partly allowed to the extent explained above. No orders as to costs. DATED at SHINYANGA this 8th day of November, 2024. F.H. Mahimbali Judge. 7