IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

ARUSHA SUB-REGISTRY
AT ARUSHA

LAND APPEAL NO. 82 OF 2021

(Originating from Arusha District Land and Housing Tribunal in Application No.
204/2019)

ROBERT JEREMIA MARANDU

(Suing as an Administrator of the

Estate of Seprina Makimoso).................................... ...APPELLANT

VERSUS

SAMWEL MKINDI LYIMO

@ MKINDI S. LYIMO......................................................... RESPONDENT

JUDGMENT

16/11/2022 & 13/02/2023

KAMUZORA, J.
The Appellant herein was the applicant before the District Land

and Housing Tribunal (DLHT) at Arusha in Land Application No 204 of

2019. His claim was based on the Respondent's act of constructing a

house and alleging to be the owner of the land belonging to the

Applicant. It was the Applicant's prayer before the trial tribunal that an

order be issued declaring the Applicant as the owner of the suit land,

and eviction order be issued against the Respondent to give vacant

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possession to the Applicant and an order of demolition of any structures

constructed in the suit land as well as payment of general damages. The

Respondent filed a written statement of defence together with a notice

of preliminary objection on point of law to the effect that the application

was untenable in law for being res judicata. The trial tribunal issued its

decision to the effect that the application was incompetent before it but

not because it was res-judicata, but due to the reasons that it

contravened the prior order of the tribunal which directed trial denovo

before the Ward Tribunal of Sokoni 1. That, as the applicant failed to

comply to that order and decided to file a fresh application, the Tribunal

dismissed the application for want of compliance to its order. Being

aggrieved by the decision of the trial tribunal the Applicant preferred an

appeal to this court basing on the following grounds: -

1) That, the trial chairman erred in law and in fact by failure to

realize that no claim in respect of the suit land could be
maintained after death of Seprina Makimoso without appointment
of administrator.
2) That, the trial chairman having held that the matter was not res-
judicata erred in law and in fact by dismissing the Appellant's case
on the ground that he disobeyed the order to re-institute the
matter at the Ward Tribunal without according the Appellant a
right to be heard on that point.

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 3) That, the trial tribunal having admitted that the Appellant was
appointed administrator of the deceased estate erred in law and in
fact to hold that trial denovo should commence at the Ward
Tribunal disregarding the pecuniary jurisdiction.
4) That, the trial tribunal having found out that the application should
be filed at the Ward Tribunal erred in law and fact to dismiss the
Appellant's case as if it was heard on merit in lieu of striking it out.

When the matter was scheduled for hearing the Appellant

appeared in person while the Respondent enjoyed the service of Mr.

Fridoline Bwemelo, learned advocate. Hearing of the appeal proceeded

by way of written submissions and each party complied to the

submissions schedule.

In his written submission in support of the appeal, the Appellant

abandoned the 1st and 3rd grounds of appeal and argued only the 2nd

and 4th grounds of appeal. In support of the 2nd ground of appeal, it is

the submission by the Appellant that, at the trial tribunal the parties

were given an opportunity to submit on the point of law based on res-

judicata where the trial tribunal ruled out that the matter was not res

judicata. That, the trial tribunal ruled out that the Appellant acted

against the tribunal order for retrial.

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 The Appellant does not dispute the fact that an order for retrial

was made by the tribunal chairperson and was required to be adhered

to by the parties. He however claimed that he was not given right to be

heard as to why the matter was filed before the District Land and

Housing tribunal and not the Ward Tribunal. To support the argument

on the right to be the Appellant referred the cases of Mbeya- Rukwa

Auto parts and Transport Ltd Vs. Jestina George Mwakyoma

[2003] TLR 251, Selcom Gaming Limited Vs. Gaming Management

(T) Ltd and Gaming Board of Tanzania [2006] TLR 200, Edwin

William Shetto Vs. Managing Director of Arusha International

Conference centre [1999] TLR 130.

Arguing in support of the 4th ground of appeal, it was the

Appellants submission that normally an order dismissing the matter filed

in court is made after the parties are heard. He contended that in the

present matter the parties were never heard hence it was wrong to

dismiss the matter. That, in appeal No. 58/2018 which was filed before

the District Land and Housing Tribunal of Arusha the matter was not

determined on merit but an order of retrial was made thus, the proper

remedy was to strike out the application and not to dismiss as it was so

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done by the Tribunal. Based on his submission the Appellant prayed for

the appeal to be allowed with costs.

Responding to the Appellants grounds of Appeal, the counsel for

the Respondent submitted that the issue of retrial was raised by the

counsel for the Appellant during hearing of the preliminary objection at

the trial tribunal. That, parties were accorded an opportunity and

submitted on the point of law. To him, the Appellant was accorded right

to be heard before the trial tribunal came up with its decision. The

counsel for the Respondent distinguished the cases cited by the

Appellant of Mbeya Rukwa Autoparts and Selcom Gaming Ltd on

account that they are quite different from the matter at hand.

Responding to the 4th ground of appeal the counsel for the

Respondent submitted that the Appellant raised a new issue in the 2nd

ground of appeal which did not surface during the trial hence lacks merit

to be discussed at this juncture. He explained that the preliminary

objection raised by the Respondent disposed the entire application filed

before the trial tribunal hence, it was right for the trial tribunal to

dismiss the application as there was no room for restoration of the said

application. The Respondent prayed for the appeal to be dismissed with

costs.
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 In his rejoinder submission the Appellant added that for retrial

order of the trial tribunal to stand it was important for the chairperson to

ask the Appellant to submit on why an order for retrial was not complied

with. That, failure to do so denied the Appellant right to be heard

against the rules of natural justice.

In course of composing this judgement, I discovered

inconsistencies in the names of the parties as well as prior cases filed in

respect of this matter. I called upon the parties to address the court and

after such clarification, I fill obligated to analyse few facts surrounding

this matter based on the records and parties' submissions.

The dispute in this case started in the year 2017 when Fidesiana

Elibariki @ Fidesiana Serafin @ Pedesiana Serafin @ Fidensian Serafine

instituted before the Ward Tribunal of Sokoni 1, Land Case No. 56 of

2017 against the Respondent herein, one Samweli Mkindi Lyimo @

Mkindi Lyimo @ Samwel Mkindi @ Mkindi Samweli Lyimo. In its decision,

the Ward Tribunal declared the suit land as the property of family of

Serafin Makisomo @ Serafin Makimoso. The Respondent herein Samweli

Mkindi Lyimo was aggrieved by that decision, he appealed to the DLHT

vide Land Appeal No. 78 of 2018. Fidesiana Elibariki who also happened

to be the daughter of Serafin Makimoso to whom the decision was

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entered in favour instituted application for execution No. 246 of 2018

before the DLHT intending to execute the decision of the Ward Tribunal.

The DLHT discovered that there were no proper records to support the

execution hence ordered a fresh trial of the case. That order was made

on 05/09/2019 and on 15/09/2019 an order striking out appeal No. 78

of 2018 was issued on the same basis that the suit be tried afresh

before the Ward Tribunal. No appeal or revision application was

preferred against the two orders and no proceedings were conducted

before the Ward Tribunal in compliance to the retrial order of the DLHT.

The Appellant herein, Roberth Jeremia Marandu after being

appointed as administrator of the estate of the late Seprina Makimoso

(the wife of the late Serafin Makimoso) opted to institute a fresh case

before the DLHT, Application No. 204 of 2019 claiming for ownership

over the same land. The DLHT dismissed the application on the ground

that there was an order for retrial thus it was not proper to institute a

fresh case. That decision triggered the present appeal on the grounds

stated above.

Upon considering the above history, the submissions by the parties

as well as the record in this case, it is undisputed fact between the

parties that the DLHT ordered the matter to tried afresh before the
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Ward Tribunal. It is not disputed that the Appellant who is also a family

member of Serafin Makimoso's family preferred a fresh application over

the same disputed land before the DLHT, Application No. 204/2019. The

same was dismissed for reasons that the parties could not institute a

fresh suit where the tribunal had issued order directing the matter to be

heard afresh by the Ward Tribunal. It was contended by the Appellant

that he was not accorded a chance to explain as to why he opted to file

a fresh suit.

I understand that right to be heard is a constitutional right, a

principle of natural justice envisaged under our constitution, Article 13 of

the Constitution of the United Republic of Tanzania. I, however, do not

agree with the claim that the Appellant was denied right to be heard as

to why he preferred a fresh case instead of adhering to the retrial order.

It is in record that the Respondent herein raised as point of law that the

suit was res-judicata. When parties were given chance to argue on that

point, Mrs. Kimale, the counsel who was representing the applicant (the

Appellant herein) clearly addressed the tribunal as to why she

considered the suit not res-judicata. She clearly elaborated that the suit

was not determined on merit as there was an order for retrial which was

not complied with. To her, a fresh suit was preferred by the Appellant

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after he was appointed administrator of the estate of the late Seprina

Makimoso Seraphine as the suit could not be heard without the legal

representative of the deceased. The tribunal acted on those arguments

and concluded that the suit was not res-judicata for it was not

determined on merit except that the parties failed to comply to its order

for a fresh trial. Thus, the claim by the Appellant that he was not heard

as to why he preferred a fresh suit is baseless.

When given chance to clarify on the inconsistencies in records, the

Appellant added a new fact which this court considered not obligated

but necessary to address. The Appellant claimed that he opted to file a

fresh suit as the land was already developed raising the pecuniary

jurisdiction above that of the Ward Tribunal. In my view, the jurisdiction

of the Ward Tribunal cannot be ousted by development made during the

pendency of the case.

I will start by deliberating of fourth ground of appeal where the

appellant is challenging order for dismissal of the suit. It was the

contention by the Appellant that the trial tribunal erred in dismissing his

application instead of striking it out. The respondent was of the view

that since the preliminary objection raised by the Respondent disposed

the entire application, it was right for the trial tribunal to dismiss the
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application as there was no room for the restoration of the said

application. From the decision of the DLHT, the suit was dismissed for

being incompetently filed before the DLHT instead of complying to the

order for fresh trial before the Ward Tribunal.

In the case of Cyprian Mamboleo Hizza Vs. Eva Kioso and

another, Civil Application No. 3 of 2010 CAT at Tanga (unreported)

cited with approval the case of Ngoni-Matengo Cooperative

Marketing Union Ltd. Vs. Alimahomed Osman (1959) EA 577 it

was held that: -

"...This court, accordingly, had no jurisdiction to entertain it, what

was before the court being abortive, and not a properly
constituted appeal at all. What this court ought strictly to have
done in each case was to "strike out" the appeal as being
incompetent, rather than to have "dismissed" it: for the latter
phrase implies that a competent appeal has been disposed of,
while the former phrase implies there was no proper appeal
capable of being disposed of "

Subscribing to the holding above, it is my settled mind that since

the point of law was raised on the competence of the suit, the proper

remedy was to strike out the suit for being incompetent. I therefore find

merit in the 4th ground of appeal.

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 Turning to the second ground of appeal, the matter in contention

is whether it was proper to institute a fresh suit instead of complying to

the order for re-trial issued by the DLHT. It must be noted that, before

the amendment of the Land Dispute Courts Act, Cap 214 R.E 2019,

section 13 of the Act gave general jurisdiction to the Ward Tribunal and

it included the jurisdiction to enquire into and determine disputes arising

under the Land Act and the Village Land Act. The said provision read;

"13. (1) Subject to the provisions of subsection (1) of section 8 of

the Ward Tribunal Act, the primary function of each Tribunal shall
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 and
within its jurisdiction.
(2) Without prejudice to the generality of subsection (1), the
Tribunal shall have jurisdiction to enquire into and

determine disputes arising under the Land Act and the

Village Land Act. [Cap. 113; Cap. 114]"[emphasize is added]

However, 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, GN No. 102 of 2021, published on 11th

October, 2021, subsection (2) of section 13 was deleted. By deleting

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that subsection, the Ward Tribunal's jurisdiction to inquire into and

determine disputes arising under the Land Act and the Village Land Act

ceased with effect from the date of publication stated herein above.

In this matter, by the time the order for retrial was issued on

05/09/2019 and 15/09/2019, the Ward Tribunal still maintained powers

to enquire and determine land disputes. Thus, the institution of a fresh

suit, Land Application was incompetently filed in contravention of the

Tribunal order. That being the case, it would have been proper for this

court to quash and set aside the proceedings in Land Application No.

204 of 2019 and order the parties to comply to the retrial order.

However, with the 2021 amendment of section 13 of the Land Dispute

Act, the Ward Tribunal currently retain mediation powers only. Now the

question is whether an order for retrial can still be effective under the

present circumstance.

Understanding the current legal position that the Ward Tribunal no

longer retain adjudication powers it is my settled mind that, ordering

retrial to the Ward Tribunal will not serve interest of justice. In other

words, with the 2021 amendment of section 13 of the Land Dispute Act,

the Ward Tribunal currently retain mediation powers only. It is therefore

unreasonable to order the matter which was already on trial to be

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returned to the ward tribunal and be subjected to mediation process.

But still, Land Application No. 204 of 2019 cannot be retained as it was

filed in contravention of the legal requirement. In the interest of justice

therefore, the parties are at liberty to file a fresh suit in the Tribunal or

court with competent jurisdiction to try the matter with exclusion of time

limitation aspect. The second ground is therefore partly dismissed to the

extent above explained.

That said, the Appeal is partly dismissed to the extent explained

above. A fresh suit if desired must be instituted within 45 days from the

date of this decision. No order as to costs is made considering the fact

that the appeal is partly allowed.

Order accordingly,

DATED at ARUSHA this 13th day of February, 2023

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