zenobi kakusu vs eliji ulaya 2023 tzhc 21453 25 september 2023

IN THE HIGH OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA MISC. LAND APPEAL No. 04 OF 2022 (Originating from Land Dispute No. 04/2021 atNtendo Ward Tribunal and Land Appeal No. 83 of2021 of the District Land and Housing Tribunal for Rukwa at Sumbawanga) ZENOBI KAKUSU ...................................... ...........^APPELLAN T VERSUS ? V "'I ELIJI ULAYA ............ ............ .................................. .^..RESPONDENT JUDGMENT 27/06/2023 & 25/09/2023 MWENEMPAZI, J.: > The parties herein are both administrators of estates of two different deceased persons; whereas the respondent has emerged victorious in the Ward Tribunal (trial tribunal) and the District Land and Housing Tribunal for Rukwa at Sumbawanga (first appellate tribunal) where he had sued the appellant for vacant possession of a disputed landed approximated to be 30 acres. On the side of the respondent, he narrated that it all started way back in the year 1974 when the late Kaiaudio Kakusu went to the late Jelolimo Ulaya and requested for a land to cultivate and he was given 20 i acres, as the late Jelolimo Ulaya possessed 100 acres at Katulula village. That, in the 1996, the late Jelolimo Ulaya wanted back his land and therefore he requested the late Kalaudio Kakusu to vacate and hand over the 20 acres he had given him, but the latter refused to do so. That, in year 2016 the late Jelolimo Ulaya unsuccessfully sued the late Kalaudio Kakusu at the Village Land Council, and being aggrieved by the decision, he then sued him at the Ward Tribunal where he was successful and thereafter, the late Kalaudio Kakusu appealed to the Land and Housing tribunal for Rukwa at Sumbawanga, where it was ordered to be tried de novo because the respondent had sued the appellant and he had no locus stand. ,•> After obtaining the letters of administration of the estate, the respondent again sued the appellant herein, the disputed land was declared to be of the respondent. The appellant was not satisfied with the decision and therefore he appealed to the first appellate tribunal where the decision of the trial tribunal was upheld, hence this appeal to this court in which it consists of five grounds of appeal which are as reconstructed here under; 2 1. That the Appellate Tribunal erred in law by entertaining the matter which was determined by the Ward Tribunal while it lacks jurisdiction to entertain the same. 2. That the Appellate Tribunal erred in law by refusing the ground that the respondent lacks locus standithe.: respondent as an administrator of the estate commenced litigation in his own name and capacity. 3. That the Appellate Tribunal erred in law by granting the relief which has no power to grant. 4. That the Appellate Tribunal erred in law and fact in evaluating the evidence on ownership of the disputed land which was adduced by the parties hence reached to wrong decision. 5, That the Appellate Tribunal erred in law by failure to determine other grounds of appeal raised by the appellant which is fatal. The appellant then prayed for the first appellate judgment and the trial tribunal judgment be quashed and set aside and order for a trial de novo or declaration that the disputed land to be part and parcel of the estate of the appellant. 3 In reply of the petition of appeal, the respondent denied all that has been filed by the appellant, putting him in strict proof thereof. During the hearing of this matter, the appellant was represented by Mr. Peter Kamyalile learned Advocate while the respondent was represented by Mr. Ayubu Mwakalonge also learned advocate. Both sides * >: •7•• ; c. ■ z.';:: J v, ,: i •:! - prayed for leave of this court that the hearing of this matter be done by the way of written submissions, and this court gladly granted what was prayed for. Mr. Kamyalile submitted first that he abandons the fifth ground of appeal and will submit for the remaining as follows. That, the jurisdiction of the Ward Tribunal to determine the.Ownership of land under Section 15 and 16 of the Land Disputes Court Act, were repealed on 11/10/2021 by Section 46 of the Written Laws (Miscellaneous Amendments) (NO.3) Act 2021, G.N No.41. Vol.102 Published on 11/10/2021. Mr. Kamyalile added further that, Section 14 of the Interpretation of Laws Act, [CAP 1 R.E 2019] provides that Every Act shall come into operation on the date of its publication in the Gazette or, if it is provided either in that Act or in any other written law that it shall come into operation on some other date, on that date. That, it is a trite of the law 4 that when a new enactment deals with procedure only, prima facie it operates retrospectively. Since Section 46 of the Written Laws (Miscellaneous Amendments) (NO.3) Act, 2021. G.N No.41. Vol. 102 Published on 11/10/2021 deal with procedure then it operates retrospectively. In further clarification, Mr. Kamyaiile cited the case of Benbros Motors Tanganyika Ltd vs Ramanlal Haribhaj Patel [1967] Hgd No. 435 where it was held that:- "When a new enactment deals with rights of action, unless it is so expressed in the Act, an existing right of action is not taken away, but when it deals with procedure only, unless the contrary is expressed, the enactment applies to ail actions, whether commenced before Or after the passing of the Act." [Emphasis added] The learned counsel proceeded that, since the law was published on the 11/10/2021 it is when it comes into operation, the judgment of Ntendo Ward Tribunal was delivered on the 12/10/2021 when its power has been immensely stripped off. That, this is fatal and it renders the proceedings 5 and judgment of appellate Tribunal to be nullity as well as of the ward Tribunal. Submitting for the second ground of Appeal, Mr. Kamyalile stated that the record shows that the respondent commenced litigation in his own name and capacity against the appellant which is not allowed in law. That, this fact was admitted by the chairman at page 5 of the typed judgment that:-"A/c/?a ya kuwa kumbukumbu zinaonyeshakuwa mrufaniwa alifungua shauri yeye kama yeye, ni kosa kisheria" v- It was his submission that, the law is now settled that, an administrator of the deceased estate has no mandate to commence litigation on his own name and capacity. Allowing administrator of the deceased estate to commence litigation on his own name and capacity is fatal and renders the proceedings and judgment of the trial tribunal as well as of Appellate tribunal nullity. In stressed further by citing the case of The Registered Trustee of SOS Children's Villages Tanzania vs Igenge Charles And 9 Others, Civil Application No. 426/08 of 2018, The Court of Appeal of Tanzania at Mwanza (Unreported) at page 10-11 where it was held that: 6 "The 1st respondent was appointed as the administrator of estate of his late father by the Primary Court of Nyamagana. A follow up question is whether the 1st respondent had locus standi to commence a suit against the 2nd to 1 (Th respondents. In Other words, did he have the capacity to commence litigation in his own name and capacity against the 2nd to lffh ■ respondents over the land which belonged to his iate father. '-s'/'- Our answer is in the negative. The 1st respondent being an administrator ought to have sued as a personal and legal representative of his late father which was not the case. It was thus, incumbent on the Tribunal to draw the attention of the parties on the issue of locus standi of the 1st respondent before proceeding to try the case" In his view, he stated that since the respondent lacked locus standi to commence the legal action in his name and capacity then the Ward Tribunal lacked jurisdiction to entertain the case, and the Appellate Tribunal lacked jurisdiction to entertain the appeal. That, its legal impact is to render the whole proceedings and judgment nullity as per the cited case 7 of The Registered Trustee of SOS Children's Villages Tanzania (Supra) at page 1142 where it was held that:- "Equally so, the 1st respondent's focus standi was a crucial matter on first appeal and it ought to have been considered by the High Court. However, it missed the eye of the High Court which also fell prey having embarked on a nullity to entertain Land Appeal No. 55 of2009 whose proceedings and judgment cannot be spared as they stem on a null proceeding of the Tribunal and thus, the two courts below lacked jurisdiction to deal with the 1st respondent’s case and appeal. Consequently, we hereby nullify the proceedings and judgments in Tribunal Land Application No. 160 of 2007 and High Court Land Appeal No. 55of 2009 and if the 1st respondent so desires, he may commence action on behalf of his deceased father in accordance with the dictates of the law." Mr. Kamyalile submitted for the third ground that, it is trite law that if a person is administrator of the deceased's estate and is claiming a land that belonged to the deceased and has been vested the disputed land in his other capacity as the legal representative of the deceased, must sue or 8 be sued in that capacity as the legal representative of the deceased. That, failure to do so No executable relief could be granted as against her personally with respect to the suit land which was vested in her other capacity as the legal representative. Mr. Kamyaiile added that, it was wrong for the first appellate Tribunal to declare that the disputed land belongs to the respondent personally while she did not prove so. Mr. Kamyaiile got his view from the case of Abdullatif Mohamed Ha mis vs Mehboob Yusuf Osman & Another, Civil Revision No. .6 Of 2017, The Court of Appeal of Tanzania at Dar Es Salaam (Unreported) At Page 27-28 Where it was held that: "It is beyond question that the 2nd respondent was, at all material times the administratrix of the deceased's estate. ... the suit land was; vested in her in her capacity as the legal administratrix. ... the respondent was not sued in that capacity. Instead, the 1st respondent sued her in her personal capacity and, for that matter, no executable relief could be granted as against her personally with respect to the suit land which, as it turns out, was vested in her other capacity as the legal representative." g Submitting for the fourth ground of Appeal, Mr. Kamyalile submitted that, he is aware that the second appellate courts should be reluctant to interfere with concurrent findings of the two courts below except in cases where it is obvious that the findings are based on misdirection or misapprehension of evidence or violation of some principle of law or procedure, or have occasioned a miscarriage of justice. He referred me to cases With the above outlined position in Neli Manase Foya vs Damian Mlinga [2005] T.L.R 167, and Amratlal Damodar Maltaser & Another T/A Zanzibar Silk Stores vs A.H. Jariwala T/A Zanzibar Hotel [1980] TLR 31, where it was held that:- '■ "Where there ate concurrent findings of facts by two courts, the Court of Appeal as wise rule ofpractice, should not disturb them unless it is clearly shown that there has been a misapprehension of evidence, a miscarriage of justice, or violation of some principle of law or procedure." He proceeded further thatz in evaluating the evidence the of first appellate Tribunal it violated some principle of law or procedure and there is misapprehension of evidence which led to miscarriage of justice. That, io this Court has justification of evaluating the evidence and disturb the findings of the concurrent Tribunal below. He added that, the appellate tribunal erred in law by analysing the evidence of the Ward Tribunal which includes the evidence adduced in the proceedings of Land Disputes No. 05 of 2016 dated 29/04/2016; and 21/1/2020 Which was already quashed and set aside. That, every case must be decided based on the evidence adduced on the same case and not on the evidence which was adduced in another cases. He then insisted that, in proving the above argument he begged to quote some part of the reasoning of the ward tribunal at the last page of the handwritten copy of the decision; 'Wa kuzingatia mgogoro ulipoanza na kusikilizwa, mfano MgogoroNo. 05 of 2016 wa tarehe 29/04/2016, 21/1/2021 na maefezo ya sasa 11/10/2021 ambapo shahidi wa mlalamikiwa wamekuwa na maefezo tofautitofauti toka mgogoro ulipoanza kusikilizwa. Mfano Ndugu Zenobi Kakusu ambae ni mlalamikiwa kwenye kesi No. 5/2016, 29/04/2016 yeye alikuwa shahidi alidai shamba hiio HUbkotwa na kaka yake ambae ni Kqlqudio ii Kakusu wakati akichunga ng'ombe. Mae/ezo ambayo ni tofauti na yaliyotolewa sasa kwamba eneo hiio atipewa na baba yake mdogo." In clarifying further, he said that the proceedings and decisions of Land Dispute No. 05 of 2016 dated 29/04/2016, and 21/1/2021 were not presented at the trial Tribunal. That, the act of the trial Tribunal to include in its judgment, facts which were not reflected in the recorded evidence in the proceedings, it renders it to be irregular and it is fatal, and this vitiates the entire proceedings of the trial Tribunal. He referred me to the case of Richard Otieno @ Gullo vs The Public, Criminal Appeal No. 367 of 2018, In The Court Of Appeal Of Tanzania At Dar Es Salaam (Unreported) at Page 23 and 24 available at Tanzlii, the Court held that:- "The law is clear and settled that court decisions must be based on the evidence presented before it. In the case of Athanas Julias v. R, Criminal Appeal No. 498 of 2015 (unreported) where in its judgment the trial court considered matters which were not testified by the witnesses, the Court stated thus: 12 'The second anomaly noted, is the act of the trial Resident Magistrate to include in his judgment, facts which are not reflected in the recorded evidence in the proceedings we are inclined to join hands with the contention of the learned counsel for both sides that, the irregularity was fatal, and did vitiate the entire proceedings ofthe trial court." He proceeded further that, even if it is assumed as alleged by the respondent that the appellant borrowed the disputed land on the 1974, according to the evidence of CHRISTOFA MWENDAPOLE, on 1985, him, and the late Kalaudio Kakusu were requested to return the disputed land. But Kalaudio Kakusu refused to hand over and by force he occupied the disputed land 30 acres. He said that; "Baada ya mimi kuiiacha eneo, ndugu Kalaudio Kakusu alichukuwa kwa Nguvu akalijumlisha na eneo lake, hivyo akamilikiekari thelasinijumla," He did not end there, Mr. Kamyalile proceeded that it is the trite of the law that the point when the suit is barred by limitation ought to be considered even if not pleaded. That, also a suit, which is barred by limitation, is the suit barred by law. That this was held in the case of 13 Stephen Mapunda (Minor) vs Shirika La Usafiri Dar es Salaam & Another [1982] TLR 283 where the High Court Held that:- "The point when the suit is barred by limitation ought to be considered even if not pleaded." In addition to that, Mr. Kamyalile insisted that according to such ■ •' ’v piece of evidence it shows that the cause of action accrued in the 1985 ’V-, ’'■'•LA:-;'/-. when they alleged that the late Kalaudio Kakusu refused to hand over the disputed land and by force he occupied the disputed land which is measured approximately 30 acres. That, in the year 2016 when the respondent started to institute the case to redeem the same, it was time barred, even the instant case was opened out of time per Item 6 of 1st Schedule to the Magistrates’ Courts (Limitation of Proceedings under Customary Law) Rules, G.N. No. 311 of 1964 , Mr. Kamyalile again referred me to the case of Abel Rwegoshora vs Raphael Mukaja [1970] H.C.D No. 100 where it was held that; "It Is dear that he brought the claim more than 12 years after he had knowledge of the transaction. A claim for possession of (land is barred if brought after twelve years from the date the claim arose." 14 It was his view that, the evidence adduced by the appellant proved that Kalaudio Kakusu owned the disputed land since 1964, and he was cultivating the disputed land together with his family up until now, and that the respondent started the dispute in 2016, That, he did not borrow the disputed land. That, from 1964 up to 2016 Kalaudio Kakusu has been cultivating the disputed land without any disturbances from the father of respondent or respondent. That, Kalaudio Kakusu has been in possession of the disputed land for 52 years, cultivating and developing it while the father of respondent did nothing to stop him or institute the suit before a tribunal with competent jurisdiction. That, it will not be fair and for the cry of justice to deprive the appellant of his right over the land which he has acquired at the respondent's knowledge over his long period of occupation. He again referred me to the case of Nassoro Uhadi vs Mussa Karunge, [1982] TLR 302 where the High Court held that:- "Where person occupies another's land over a long period and develop it, and the owner knowingly acquiesces such a person acquires ownership by adverse possession," At page 304, the Court held that:- "In the present case the respondent/plaintiff and his parents have been in possession of the disputed land for 27 years, 15 cultivating and developing it while the appellant/defendant's family did nothing to stop them. Whatever the circumstances of the appellant's original claim over the land, it would be completely contrary to principle of equity to deprive the respondent of his rights over the land: which he has acquired (at the appellant's knowledge) over their long period of occupation. The respondent has, in law, acquired ownership of the piece of land by reason ofadverse possession." Also, in the case of Shaabani Nassoro vs Rajabu Simba (1967) H.C.D No. 233, the Court held that:- L, "(1) The court has been reluctant to disturb persons who have occupied land and developed it over a long period. "The respondent and his father have been in occupation of the land for a minimum of 18 years, which is quite a long time. It would be unfair to disturb their occupation.,.." (Emphasis is mine) In conclusion, Mr. Kamyalile submitted that based on the Submission above and the plethora of relevant authorities pined in, he prays for the judgment of the District Land and Housing Tribunal as well as of the Ward Tribunal be quashed and set aside and order of a trial de novo or 16 declaration that the appellant is the lawful owner of the disputed land and payment of costs of this appeal. In reply, the counsel for the respondent submitted that, the counsel for the appellant has submitted on the jurisdiction of the trial tribunal. Mr. Mwakalonge proceeded that the trial tribunal had jurisdiction as the respondent filed the suit before the enactment or amendment of the law, and that the issue of jurisdiction is wrongly discussed by the appellant, as the respondent filed the named land dispute in the ward tribunal since 7th day of September, 2021 before the enactment came into operation on 11th day of October, 2021. That, this gives jurisdiction to the trial tribunal to adjudicate the matter. Mr. Mwakalonge cited the case of Yew Bon Tew vs Kndaraan Bas Mar (1983) I AC 553 in which it was held that: "... Apart from the provisions of the interpretation statutes, there is at common Jaw a prima facie rule of construction that statute should not be Interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used." The learned counsel submitted further that, the East Africa Court of Appeal considered the issue of the retrospective effect of legislation in the case of Municipality of Mombasa vs Nyali Ltd (1963) E. A. 371 that; 17 "Whether or not legislation operates retrospectively depends on the intention of the enacting body as manifested by legislation. In seeking to ascertain the intention behind the legislation the courts are guided by certain rules of construction. One of these rules is that if the legislation affects substantive rights, it would not be construedto have retrospective operation......" As the matter of fact, he suggested that the trial tribunal have jurisdiction to try the named land dispute as the law was not yet enacted. Submitting against the second ground of appeal that, the tribunal records is very clear on the issue of locus standi before hearing of the matter in the ward tribunal, the chairman of the trial tribunal satisfied himself on the issue of locus standi by allowing each party to bring to the tribunal evidences of them to be administrator of estate of their parents, whereby the respondent brought to the tribunal the evidence that he is the administrator of estate of his late further Jololimo Ulaya. He added that, in the tribunal records the proceedings shows that and he quoted* (kabla ya kupokea maeiezo upande wa mlalamikaji baraza HHtaka kupata hati ya kisheria ya kusimamia mirathi ya marehemu Hi kujiridhisha na hati Hitoiewa na imebandikwa mwisho mwa maeiezo yake). 18 That, this shows that the trial tribunal satisfied itself that the respondent has locus standi to sue on behalf of his late farther. He then cited the case of Rozimary Silvesta vs Sara Siasi, Misc. Land Appeal No. 11 of 2022 (Unreported) whereby in page 9 of the judgment, it was stated that; "Before tying off this judgment, I find it worth noting that despite the fact that both parties stood suing and being sued in the capacities of administratrixes of their beloved ones yet the proceedings of this court and that of the tribunals below which yielded this appeal bear the names of the parties in their personal capacities, that is wrong in law however as the proceedings, tribunal's judgments and documentary evidence (letters of administration of estate of deceased persons) depict that they stood as administrators. In the circumstances of this case, therefore, I am not persuaded if such irregularity namely; a failure by the tribunals and this court to insert the parties to the dispute as administratixes of the estate of their late deceased persons renders the proceedings and decisions a nullity". That, the issue of locus standi is a core prerequisite to the institution of a suit, and that this has been restated in the number of cases. The 19 learned counsel cited the case of Lujuna Shubi Ballonzi, Senior vs Registered Trustees of Chama Cha Mapinduzi [1996] TLR 203 where it was held that; "In this country, locus standi is governed by the common law. According to that law, in order to maintain proceedings successfully, a plaintiff or an applicant must show not only that the court has power to determine the issue but also that he is entitled to bring the matter before the court". He then winded up that as what the trial tribunal did to parties to satisfy itself that the parties have jurisdiction to bring the matter in the tribunal. $ Submitting against the. third ground of appeal, the learned counsel submitted that the District Land and Housing Tribunal has power to grant the relief granted as the appellate tribunal accepted what the trial tribunal granted. That, it is well known from the trial tribunal records that the respondent was sued as an administrator of the estate, stating that the disputed land belongs to the respondent it means as an administrator of the estate of his late father as stated in the case of Rozimary Si I vesta vs Sara Siasi Misc. Land Appeal No. 11 of 2022 (Unreported). On the fourth ground of appeal, Mr. Mwakalonge submitted that, the evidence of ownership was evaluated by the trial tribunal, and that, what 20 the appellate tribunal did is to discuss the ground of appeal raised by the appellant in the District Land and Housing Tribunal, that the respondent proved well his case in the trial tribunal. The learned counsel proceeded that, the counsel for the appellant abandoned ground no. 5 and twisted to another ground of appeal which was not raised at the appellate tribunal, that appellate Tribunal erred in law by analyzing the evidence of the Ward Tribunal which includes the evidence adduced in the proceedings of land Disputes No. 05 of 2016 dated 29/04/2016; and 21/1/2020 which was already quashed and set aside. He clarified that, it is not proper Tor the appellant to raise it for the first time at this stage, that this is well stated in the case of Juma Said & Another vs Aisha Hamad Luhomero, Land Appeal No. 21 of 2022 (Unreported) at page 4 of the judgement, and that he therefore finds it improper to entertain this new ground of appeal which has been raised for the first time before this court. He added further that, the issue of referring to the land dispute No. 5 of 2016 comes from the witnesses when adducing their evidences; that, it was a matter of reference from the trial tribunal to show how the appellants evidence was not certain. 21 Again, the learned counsel referred me to the case of Farida & Another vs Domina Kagariki, Civil Appeal No. 136 of 2006 (Unreported) held that, "it is the genera! principle that the appellate court cannot consider or deal with issues that were not canvassed, pleaded, and not raised, at the lower court". Moreover, the learned counsel was of the view that, the issue of evidence that the appellant used the disputed land for long time by Itself does not prove ownership as the appellant failed to prove how he came into the ownership of the disputed land. That, this position Was elaborated clear in the case of Mukyemalila & Another vs Kuilanga (1972) HCD that; "an invitee cannot establish adverse possession against host even if the invitee had made the permanent improvement". He cited further that, this position was also stated in the case of Musa Hassani vs Barnabas Yohanna Shedafa (Legal Representative of the late Yohanna Shedafa), Civil Appeal No. 101 of 2018 (Unreported) that "we wish to underline that an invitee cannot own a land which he was invited to the conclusion of his host whatever the length of his stay. It does not matter that the said invitee had even made unexhausted improvement on the land on which he was invite" 22 He then insisted that, the tribunal records shows that the appellant's father was invited to the disputed land hence the issue of adverse possession cannot apply. To top his submission, he referred me to the case of Mbira vs Gachuhi [2002] EA 137 where it was stated that "the possession had to be inconsistent with and in denial of the title of the true owner of the premises, if the occupier's right to occupation was derived from the owner in the form of permission or agreement, it was not adverse". In conclusion, Mr. Mwakalonge submitted that for the reasons and authorities advanced in this submission, the Respondent prays to this Honorable Court to dismiss the appeal with cost and adopt the decision of the District Land and Housing Tribunal. In rejoinder submission, the counsel for the appellant mainly reiterated what he had submitted earlier. Thereafter, it was this court's turn to embark on the submissions made by both camps and come to a just finding. As required, I did go through the submissions made by both sides, and indeed the records of appeal before me. And in doing so, I am convinced that the only determinant feature in this appeal is whether it has merit before this court. 23 However, the appellant herein has filed five grounds of appeal in attempts of turning the table against the decisions of the lower tribunals. But during submission, his counsel abandoned the fifth ground and submitted on the remaining four grounds. It is hard to go unrecognised that the first ground of appeal alone suffices to dispose of this appeal as it touches jurisdiction of the trial tribunal. In the case of Said Mohamed Said vs Tango Transport Company Ltd, Civil Appeal No. 84 of 2009 (unreported-CAT) it was stated that, jurisdiction is the first issue that the court should first ask itself before ' "> acting on any matter placed before it for determination. As rightly submitted by Mr. Kamyaiile that on the 11th day of October, 2021 the jurisdiction of the Ward Tribunal to determine the ownership of land under Section 15 and 16 of the Land Disputes Court Act, were repealed by Section 46 of the Written Laws (Miscellaneous Amendments) (No.03) Act, 2021, G.N. No. 41. Vol. 102. Again, as correctly submitted by the counsel for the appellant that, it is trite of the law that when a new enactment deals with procedure only, prima facie it operates retrospectively. 24 Because the said legal changes are procedural by nature, they had retrospective effect. On the issue of retrospective effect, the case of La la Wino vs Karatu District Council, Civil Application No. 132/02/2018 Court of Appeal of Tanzania (unreported) well elaborated on this aspect that, procedural amendment applies even to pending cases because the changes, start to be operational even to pending cases. Therefore, the trial Tribunal had no jurisdiction to continue to determine the application filed by the respondent due to lack of jurisdiction of determining ownership of land. This aspect needs not to consume much of my time as it is well known that, when a new enactment deals with rights of action, unless it is so expressed in the Act, an existing right of action is not taken away, but when it deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act. This was the holding in the case of Benbros Motors Tanganyika Ltd (supra) in which I found best to reproduce in clarifying my fortified conclusion to this appeal. At this juncture, it is my firm view that this appeal has merits and I proceed to allow it. Consequently, the proceedings and judgement of the District Land and Housing Tribunal for Rukwa at Sumbawanga and of 25 Ntendo Ward Tribunal are hereby quashed and the orders thereto are set aside. The matter is ordered to be tried de novo at the District Land and Housing Tribunal for Rukwa at Sumbawanga. Costs to follow the event. It is so ordered. Dated and delivered at Sumbawanga this 25th day of September, 2023. - T. M. MWENEMPAZI JUDG Court: Judgment delivered in the presence of the appellant and absence of the respondent. T. M. MWENEMPAZI JUDG 25/09/2023 26