Barrick Gold Mine Limited vs Augustino Nestory Sasi (Civil Appeal No. 710 of 2025) [2026] TZCA 489 (4 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MWANDAMBO, J.A., KENTE, 3.A. And MGONYA. J.A.^ CIVIL APPEAL NO. 710 OF 2025 BARRICK GOLD MINE LIMITED ............................................ APPELLANT VERSUS AUGUSTINO NESTORY SA SI........................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, at Musoma) (Komba, J.) dated the 26th day of February, 2024 in Land Appeal No. 000026199 of 2023 JUDGMENT OF THE COURT 22nd April & 4th May, 2026 KENTE, J.A.: This is a matter which originated in the Kemambo Ward Tribunal in the Tarime District of Mara Region. The respondent who was the applicant in that tribunal, commenced an action (No.28 of 2023) against the appellant company which was the respondent at the time, claiming for payment of TZS 100,000,000,000.00 allegedly being "token" compensation for his acquired piece of land the precise acreage of which was not specified. Purportedly, through its Human Resource Officer one Isaya John, the respondent thereupon entered appearance with a view to defending the suit. 1

However, pursuant to section 45(c) of the Land Disputes Courts Act, (Chapter 216 of the Revised Laws), the parties were obliged to go, and indeed they went through a "mediation" process which is specifically designed for amicable settlement or else the law requires the Ward Tribunal to issue a certificate of failure to settle, if mediation fails. After the parties purportedly reached an amicable settlement in this matter and, having made an agreement to that effect, the Ward Tribunal approved and went on recording the terms of the said agreement as a binding order capable of being enforced as a court decree. Had it not been for what we shall later on canvass in this appeal, the above steps would have formally closed the litigation between the parties herein preventing any of them from reopening the same dispute and avoiding the need for a full trial. To put it into a clear perspective, it is apt at this juncture to reproduce the material contents of the alleged deed of settlement which was signed by the parties and approved by the Ward Tribunal on 16th May, 2023. It reads thus: "Kampuni imekubali kuwa mdai Augustino Sasi ana eneo lake Nyabikena. Kampuni ya Barrick ilikubali kuwa Himtathminia eneo lake mdai mwaka 2013. Kampuni ya Barrick imesema kuwa hawalihitaji eneo hilo isipokuwa itamiipa mdai kifuta machozi 2

pamoja na watu waliokuwepo kwenye maeneo haya kabla ya mwaka haujaisha. Mdai anaomba kampuni imf/pe Tshs Bilioni mia moja tu. Baraza walikubali kuwa mdai Augustino ana eneo lake Nyabikeni" What followed thereafter is that, the matter lay fallow until sometime in June 2025 when the respondent sought to enforce the alleged agreement by attaching the appellant's bank account with a view to realising the decretal amount thereby unearthing what hitherto appeared to be a settled a matter. Mention must be made here of the fact that, contrary to the respondent's belief and understanding, in terms of the purported deed of settlement, it appears that what the appellant company believed and understood is that, it was not obliged to pay any compensation for the respondent's piece of land that was not acquired in the first place. In expression of its grievances over what was termed as "procedural irregularities" committed by the Ward Tribunal, on 2n d June 2023, the appellant lodged an application (No. 90 of 2023) in the Tarime District Land and Housing Tribunal (The DLHT) seeking revision of the Ward Tribunal's proceedings and the resulting orders. But then, after hearing the parties, the DLHT sustained the Ward Tribunal's decision reasoning that, because the entire process was a mediation that resulted into the parties' signing of 3

an agreement, it was not necessary in the circumstances of this case, to disturb the said agreement on the basis of legal technicalities. The appellant company was not satisfied with the outcome in the DLHT. It therefore escalated the matter to the High Court of Tanzania (sitting at Musoma) which took the same view as the DLHT holding that, a party cannot apply for revision or appeal to challenge an award originating from a settlement agreement. Going by section 70(3) of the Civil Procedure Code which bars appeals from a decree passed by the court upon consent of the parties, the learned High Court Judge concluded that, the DLHT had wrongly entertained the revision application. As a consequence of the above facts and by way of conclusion, she nullified the DLHT proceedings, set aside the resulting order and dismissed the appeal preferred by the appellant for lack of merit. As would be expected, the decision by her Ladyship Komba J, was not well received by the appellant who hurriedly mounted an appeal to this Court to challenge it, advancing five grounds, formulated as follows:

1. That the High Court erred in law and in fact by holding that the quorum of the Ward Tribunal members is irrelevant during mediation.

2. That the High Court erred by holding that the pecuniary jurisdiction of the Ward Tribunal is irrelevant during mediation. 4

3. That the High Court erred in holding that the Law of Limitation Act does not apply to matters referred to the Ward Tribunal for mediation.

4. That the High Court erred in holding that the parties reached a settlement.

5. That the High Court erred in relying on Section 70(3) of the Civil Procedure Code to Bar the appellant from applying for revision. As it will be noted at once, the dispute which is defined by the above cited grounds of appeal, is so vast as to go beyond the dispositive issue of this appeal. In this connection, it is advisable to mention here that, the gist of the appellant's most important complaint is essentially that, the Ward Tribunal had no jurisdiction to entertain this matter because the value of the appellant's piece of land which formed the subject matter of this dispute, exceeds the pecuniary jurisdiction of both the Ward Tribunal and the DLHT. Because of the foregoing observation, in our determination of this appeal, instead of canvassing other grounds of appeal which, we have to say, are to a large extent, equally plausible, we have considered only the issue which we have identified and defined in the preceding paragraph in so far it arises from the second ground of appeal. For this reason, at the hearing of the appeal, while we allowed the counsel for both parties to 5

advance their arguments for or against each ground of appeal, we bore it in mind that the issue of jurisdiction which is the lifeblood issue in any legal proceedings, could be dispositive of this matter without recourse to the substantive merits or demerits of the lower court's decision. Prior to the hearing date, counsel for both parties had filed their respective written submissions which they relied on at the hearing and which they augmented viva voce. In advancing the appellant's arguments in support of the appeal, Mr. Renatus Shiduki learned advocate who appeared along with Mr. Faustine Malongo and Ms. Caroline Kivuyo all learned advocates to represent the appellant, begun by setting out the facts leading up to the disputes between the parties which were basically undisputed. Thereafter, Mr. Shiduki submitted that, after the High Court Judge considered the background facts, she held rather erroneously that there was no legislation procedure to guide the Ward Tribunals in mediation and that, that lacuna in the law included the absence of a specified amount regarding the pecuniary jurisdiction of the Ward Tribunals. With specific reference to the second ground of appeal, counsel for the appellant begun by reproducing section 45(c) of the Land Disputes Courts Act which limits the function of the Ward Tribunals to that of

mediation only. The position taken by Mr. Shiduki who addressed the Court on behalf of the appellant's counsel team was that, based on the above cited provisions of the law, all land disputes triable by the DLHT must, in the first place be referred to the Ward Tribunal for mediation. The learned counsel contented, and on this point, we entirely agree with him, that, while section 15 of the Land Disputes Courts Act which previously provided for pecuniary jurisdiction of the Ward Tribunal was repealed through the Written Laws (Miscellaneous Amendments Act) No. 3 of 2021, the effect of the above amendment does not mean that as the matters stand today, the Ward Tribunals possess unlimited jurisdiction, allowing them to mediate even for the cases that the DLHT are prohibited from handling. Deducing from the fact that the land disputes that may be mediated by the Ward Tribunal are only the ones that are triable by the DLHT, the learned counsel argued that, the pecuniary jurisdiction of the Ward Tribunal is pegged on the pecuniary jurisdiction of the DLHT and, as such, the Ward Tribunal's jurisdiction to mediate is restricted to matters which, upon failure of the parties to reach amicable settlement, are triable by the DLHT. Referring to section 33(2)(b) of the Land Disputes Courts Act which sets the DLHT's pecuniary jurisdiction at TZS 200,000,000.00, Mr. Shiduki concluded that, in the instant case, the Ward Tribunal for Kemambo had no jurisdiction to mediate this matter because, upon failure to reach 7

settlement, it would automatically fall within the pecuniary jurisdiction of the High Court. To further support his contention, the learned counsel submitted that, in terms of section 14(4) of the Land Disputes Courts Act, there is no requirements for the land disputes whose monetary value is within the pecuniary jurisdiction of the High Court, to be mediated by the Ward Tribunal and thus, in the circumstances of the present case, the respondent ought to have filed his suit right away in the High Court which enjoys unlimited jurisdiction to adjudicate land disputes. In opposing the appeal, Mr. Mdimu Ilanga learned counsel who joined forces with his fellow advocates namely, Messrs. Sambwee Shitambala and Emmanuel Mng'arwe to resist the appeal on behalf of the respondent, was very brief. He submitted that, the Ward Tribunals are not required to observe any pecuniary jurisdiction during mediation. The learned counsel contended that, a Ward Tribunal is required to help the disputing parties reach a mutually satisfactory and legally binding settlement and is not bound by pecuniary jurisdiction limitations that apply to the adjudicating DLHT or the High Court during trial. With respect to Mr. Shiduki's submission on the pecuniary jurisdiction of the Ward Tribunals, Mr. Ilanga submitted rather forcefully that, after 8

repeal of section 15 of the Land Disputes Courts Act, the Ward Tribunals were left with unlimited original jurisdiction allowing them to mediate any land dispute including those involving high monetary values. The respondent's counsel thus implored us to dismiss the appeal for want of merit. We have carefully considered the record of appeal together with the submissions of both counsel on the second ground of appeal which, as stated earlier, is dispositive of this matter. To recapitulate, this appeal revolves around the question as to whether the Ward Tribunal was bound to observe its or any other pecuniary jurisdiction during mediation of this dispute. Essentially, that is what is at the centre of the contention in the second ground of the appeal. We have perused the record and decisions of the lower courts and observed that, indeed the value of the subject piece of land was undeniably said to be TZS 100,000,000.000.00. A further perusal of the High Court judgment shows that, the learned appellate Judge took the view that, the Ward Tribunal was not required to determine whether it was clothed with the necessary pecuniary jurisdiction to mediate this matter because, following amendments of the law, the Minister had not made regulations required to govern the Ward Tribunals in mediating land disputes. According to the learned High Court Judge, the Minister's inaction gave the 9

Ward Tribunals a blank cheque to mediate any land dispute regardless of the monetary value of the property involved. With unfeigned respect to the learned High Court Judge, we find the above position rather flawed. While we are cognizant of the fact that section 15 of Land Dispute Act was repealed as to do away with the pecuniary jurisdiction of the Ward Tribunals, we take the view that, mediators both in courts and tribunals, are required to observe their pecuniary jurisdiction during court-annexed mediation. In this connection, it behoves us to observe for purposes of emphasis that, while mediation is a flexible process, it is part of the judicial process and as such, a dispute submitted to the Ward Tribunal for purposes of a court-annexed mediation as it happened in the instant case, must generally be within the pecuniary jurisdiction of the DLHT that would hear the matter if the mediation fails. Otherwise, it must be very elementary to state that, a decree or order passed without jurisdiction cannot create any legal right or obligation, making it impossible to enforce effectively as it occurred in the present case. Upon the above observations, we are inclined to agree with Mr. Shiduki and consequently hold that, indeed the learned High Court Judge strayed into error when she held that the Ward Tribunals in our jurisdiction, have unlimited pecuniary jurisdiction when conducting court-annexed 10

mediation pursuant to section 45(c) of the Land Disputes Courts Act. Had the learned Judge applied her mind to the fact that both the lower courts and tribunals in our jurisdiction are meant to handle smaller-value disputes to prevent higher courts from being overwhelmed by small claims thereby allowing them to focus on more complex and higher monetary value cases, she certainly would have reached a different conclusion on this matter. Still on this point, and as result, we wish to quote by way of emphasis, what was stated in the Kenyan case of Owners of the Motor Vessel "Lilians" v. Caltex Oil (Kenya) Limited [1989] KLR.19 from which we can borrow a leaf, where it was held that: "Jurisdiction is everything and that, without it, a court has no power to make one more step" Moreover, in the above-cited case, it was guided that: M Where the court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing." Based on the foregoing discourse, we find merit in the present appeal which we accordingly allow. Consequently, we nullify the proceedings in the lower courts and the Ward Tribunal and set aside the resulting order. As to the way forward, we leave it in the discretion of the respondent to lodge his claim in the correct forum if he is still desirous of pursuing 11

whatever he considers to be his lawful entitlements. The appellant is entitled to its costs both in this court and the courts below. DATED at MWANZA this 2n d day of May, 2026. L. S. MWANDAMBO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 4th day of May, 2026 in the presence of Mr. Faustine Malongo assisted by Mr. Renatus Lubango Shiduki, learned counsel for the appellant, Mr. Mdimi Thomas Ilanga, learned counsel for the respondent and Mr. John Banene, Court Clerk; is hereby certified as a true copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 12