thomas magige ruling 0001

THE UNITED REPUBLIC OF TAZANIA (JUDICIARY)

THE HIGH COURT

LAND DIVISION (MUSOMA SUB REGISTRY AT MUSOMA) Misc. LAND APPLICATION No. 533734 OF 2023 (Arising from the High Court [Musoma Sub-Registry] in Misc. Land Appeal No. 62 of 2022; and The District Land and Housing Tribunal for Mara at Musoma in Misc. Land Application No. 981 of2022 & Land Appeal No. 233 of2020; & Originating from Nyankanga Ward Tribunal (Butiama) in Land Dispute No. 25 of2019) THOMAS MAGIGE.......................................................... APPLICANT Versus BARAKA IMANYI TYENYI.......................................... RESPONDENT

RULING 02.07.2024 & 03.07.2024 Mtulya, J.: Sometimes in 2019, Mr. Thomas Magige (the applicant) had entered into a land ownership contest with Mr. Baraka Imanyi Tyenyi (the respondent). The contest was tense that could not be amicably resolved by traditional ways hence it was referred to Nyankanga Ward Tribunal (the ward tribunal) located at Butiama District in Mara Region. The ward tribunal then registered the contest in Land Dispute No. 25 of 2019 (the dispute) and was determined to the finality in favor of the respondent. The applicant was aggrieved by the decision of the ward tribunal hence had preferred Land Appeal No. 233 of 2020 (the appeal) in the District Land and Housing Tribunal for Mara at Musoma (the district tribunal), which was struck out for want of time limitation. i Following the struck-out order, the applicant had preferred Misc. Land Application No. 981 of 2022 (the misc, application) before the district tribunal praying for enlargement of time to file an appeal in the tribunal to contest the decision of the ward tribunal in the dispute. However, the district tribunal had declined his prayer on enlargement of time hence the applicant had decided to take the decision of the district tribunal in the misc. application to this court via Misc. Land Appeal No. 62 of 2022 (the land appeal). This court on 14th August 2023 had marked the land appeal withdrawn with

costs. The appellant was dissatisfied by the decision of this court and wants to dispute the same at the Court of Appeal (the Court) via the instant application. Reading the chamber summons, the applicant prays for this court to certify that there are points of law to be taken to the Court. In his affidavit in support of the application, the applicant has raised a total of six (6) issues to be considered by this court for leave to access the Court. However, before the application hearing could take its course, Mr. Ostack Mligo, learned counsel for the respondent appeared and protested the application in two (2) levels, namely: first, the applicant was not granted leave to refile an appeal; and second, the applicant is seeking certification on a point of law for a dispute which originated at the district tribunal. 2 Yesterday morning, Mr. Mligo was summoned to appear and explain his protests before this court. In his brief submission, Mr. Mligo submitted that the applicant came to this court on 14th August 2023 and prayed to withdraw the land appeal without praying leave to refile fresh appeal. According to Mr. Mligo, the prayer was granted and the land appeal was marked withdrawn by this court without an option of leave to refile fresh appeal. In his opinion, the order of this court had brought two (2) problems to the applicant, namely: first, the applicant cannot file fresh

appeal as he has no leave of this court; and second, the land appeal was not resolved on merit to enable this court to scrutiny points of law and forward the same to the Court. On the second protest, Mr. Mligo submitted that the land appeal originated from the misc. application, which was resolved by the district tribunal in exercising its original jurisdiction. In the views of Mr. Mligo, the applicant in the instant application is praying for certification on a point of law for a dispute which arose at the level of district tribunal, whereas disputes of the same species are supposed to pray for leave to access the Court. In order to substantiate his submission, Mr. Mligo had cited the authorities in section 47 (2) of the Land Disputes Courts Act [Cap. 216 R.E. 2019] (the Act) and precedent of this court in Jonas Joshua Bushambali v. Equity for Tanzania Ltd (EFTA), Misc. Civil Application No. 25 of 2022. 3 In replying the submission, the applicant, who had appeared in person without any legal representation, stated that he did not pray for withdraw of the land appeal in this court. According to him, the instant record in the application does not support the submission of Mr. Mligo. In his submission, the applicant stated that the land appeal, which was resolved in this court, originated from the ward tribunal in the dispute and went through the district tribunal to this

court. According to him, the contest in this court was whether the applicant has the right to enjoy forty-five (45) or sixty (60) days to access this court for his land appeal originated from the ward tribunal. In his views, it is that contest on time limitation which he wants to take to the Court. In justifying his arguments, the applicant had cited section 38 of the Courts (Land Disputes Settlement) Act, No. 2 of 2002 (the Courts Act) and decision of this court in Nguvu Moja Garage v. Kirang'anyi Isobu, Misc. Land Application No. 51 of 2021. In brief rejoinder, Mr. Mligo insisted that the applicant had prayed before the court to withdraw the land appeal and this court did not move suo moto to mark the land appeal withdrawn. Mr. Mligo also insisted that the land appeal did not originate from the ward tribunal, but the district tribunal exercising its original jurisdiction in resolving a prayer of enlargement of time. According to Mr. Mligo, the misc. application was not an appeal from the ward tribunal, but an application for enlargement of time resolved by the district tribunal. 4 Regarding the contest on application of section 47 (2) of the Act and 38 of the Courts Act, Mr. Mligo stated that the land appeal was not resolved on merit to allow the conversations on appropriate days or provisions of the law in preferring an appeal in this court. On the precedent of Nguvu Moja

Garage v. Kirang'anyi Isobu (supra), Mr. Mligo stated that the decision is not applicable in the instant application for two reasons, viz: first, the decision was resolved on merit and granted the applicant leave, whereas the present contest is at the stage of points of law hearing; and second, the decision had resolved issues related to leave to access the Court and not a prayer on certification of the points of law to be forwarded to the Court. I have perused the record of this application and specifically scanned two (2) issues, namely: first, the order of this court issued on 14th August 2023 in the land appeal, which is intended to be ferried to the Court; and second, the decision of the ward tribunal in the dispute. The order of this court delivered on 14th August 2023 shows that: the matter is hereby marked withdrawn with costs. The order is silent on the reasons of withdraw and whether the applicant had prayed for the same or the court had moved suo moto and marked the land appeal withdrawn. It is this order which the applicant has attached in the application to take it to the Court. The application of the applicant in this circumstance has two (2) problems. First, there are no necessary materials in the order to 5 enable this court to scrutiny whether there is a point of law to be forwarded to the Court and second, even if the application is ferried to the Court, it

will be difficult for the court to resolve the matter. The Court will face the same difficulties as this court is currently facing. It is unfortunate that the applicant is a lay person who is unable to appreciate procedures of land disputes resolved in this court and are subject to appeal to the Court. The law regulating the instant dispute is enacted in section 47 of the Act and for easy appreciation of the enactment, it is hereby quoted, in brief, that: 47 (1) A person who is aggrieved by the decision of the High Court in the exercise of its original, appellate or revision jurisdiction may appeal to the Court ofAppeal in accordance with the provisions of the Appellate Jurisdiction Act. (2) Where an appeal to the Court of Appeal originates from the Ward Tribunal, the appellant shall be required to seek for the Certificate from the High Court certifying that there is point of law involved in the appeal. (emphasis supplied). Reading the provision of section 47 (2) of the Act, it is obvious that this court is invited to scrutinize legal issues for disputes which originate from the ward tribunals to the Court for determination. In such situation, this court acts as filter to distinguish legal issues to be 6 forwarded to the Court and factual matters. In the instant application, the applicant is seeking certification of a point of law and claims that his dispute originated from the

ward tribunal, whereas the decision of the ward tribunal was not brought and resolved at the district tribunal. Similarly, the dispute was not brought and resolved in this court. It cannot be forwarded to the Court for want of interpretation of legal issues. On the other hand, the record of land appeal shows that this court had resolved the misc. land application, which was first cited at the district tribunal in exercising its original jurisdiction. The misc. application was brought in this court and was marked withdrawn via the order of 14th August 2023. In brief, the misc. application was not resolved on merit to enable this court to have necessary materials to scrutiny points of law. Even if the misc. application was resolved on merit to the finality, the proper procedure would be cited under section 47 (1) of the Act, which regulates appeals to the Court, and not certification on points of law enacted in section 47 (2) of the Act. It is this confusion on interpretation of the law which had caused the present contest between the applicant and respondent's learned counsel. It can easily be understood as the applicant is a lay person without any legal representation and he is busy contesting his land rights. Having said so, it is apparent that the instant application is incompetent before the court and its remedy is obvious. In the end, 7 and for the foregoing reasons, I

hereby struck out the application without costs. I do so as I am aware the applicant is a lay person unaware of legal issues regulating land appeals from this court to the Court. It is so ordered. This Ruling was delivered in Chambers under the Seal of this court in the presence of the applicant, Mr. Thomas Magige and in the presence of the respondent's learned counsel, Mr. Ostack Mligo, through teleconference attached in this court. F.H. Mtulya Judge 03.07.2024 8