Mariana Mwamakula vs Stephen S. Mleo (Civil Appeal No. 121 of 2021) [2024] TZCA 831 (28 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: KOROSSO. J.A., KITUSI. J.A. And KHAMIS. J.A.^ CIVIL APPEAL NO. 121 OF 2021 MARIANA MWAMAKULA........................................................ APPELLANT VERSUS STEPHEN S. M LEO ...... ................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania (Land Division) at Dafr es Salaam) f Ndunauru, dated 26th day of June, 2019 in Misc. Land Appeal No. 142 of 2018 JUDGMENT OF THE COURT 13th February & . 28th August, 2024 KOROSSO. 3.A.: The appeal stems from the judgment of the Land Division of the High Court of Tanzania, Dar es Salaam (Ndunguru, J.) in Land Appeal No. 142 of 2018. Initially, the respondent successfully sued the appellant in the Ward Tribunal of Kawe (Trial Tribunal) in Application No. 222 of 2016 claiming that the appellant encroached on his plot of land by erecting a wall. The trial tribunal entered judgment in favour of the respondent and ordered the appellant to demolish the erected wall and respect the boundaries between the parties. The appeal to the District Land and Housing Tribunal for Kinondoni District (DLHT) in Land Appeal No. 90 of i

2017 by the aggrieved appellant was dismissed for want of merit. As stated earlier, the appellant's second appeal before the High Court was unsuccessful hence the instant appeal. The appeal is founded on one ground of appeal which was certified as a point of law for the Court's determination by the High Court in Misc. Land Application No. 421 of 2019. The ground of appeal states:

1. To what extent is a judgment of the Ward Tribunal exempted from the essential elements of a judgment On the day the appeal was called for hearing, the appellant appeared in person, unrepresented whereas, Mr. Living Raphael, learned counsel, represented the respondent. The appellant kickstarted amplifying her appeal by adopting the written submissions filed on 14/6/2021 and had nothing further to expound. In the written submission, the appellant contends that apart from being a self-contained document, the judgment of a court must contain one, concise statement of the case; two, the points for determination; three, the decision thereon; and four, the reasons for such a decision. It was her submission that every judgment should have the facts of the case, and include a process of reasoning showing how the court came to a particular conclusion and decreed or dismissed the claims and relief sought. 2

Expounding on the issue of whether the Ward Tribunal is a court of law bound to give judgments as prescribed above, she contended that, under section 10(1) of the Land Dispute Act, Cap 216 (Land Disputes Act), a "court" is defined to have the same meaning as that ascribed to the Land Act, Cap 113 (the Land Act), which defines it as; "< ? body established by or under any written iaw which is referred to in section 167 o f the Act as having jurisdiction to determine land d is p u te s Therefore, the Ward Tribunal is a court for all the laws related to land with jurisdiction and powers within the area of a District Council in which it is established. The appellant further maintained that in the 2002 amendments, the Land Disputes Act vested the Ward Tribunal with exclusive jurisdiction to adjudicate over land disputes whose value is less than three million shillings. According to him, under section 8 of the Land Disputes Act, the Ward Tribunal has jurisdiction to mediate and adjudicate land disputes which essentially means that the same is a court of law and thus duty bound to give reasoned judgments. The appellant resisted the respondent's assertions that Ward Tribunals should not be faulted for composing judgments without providing reasons, since they are presided over by lay members and are not bound to apply rules of evidence and procedure, arguing that it is not the legal position. 3

The appellant contended further that as Ward Tribunals have the power to make decisions that affect the rights of the parties, and there is no law exempting them from giving reasoned decisions, their judgments must be reasoned to enable proper scrutiny and assessment by appellate authorities, to provide considerable assurance to the contending parties expecting better and properly thought-out decisions. According to the appeflant, a reasoned judgment will enable a person who has a right of appeal to determine whether he has good grounds for an appeal. In addition, the same will essentially make the ward tribunals more amenable to the supervisory jurisdiction of the court and enhance public confidence in the administration of justice. To reinforce this argument, she cited the case of Tanzania Air Service Ltd v. Minister for Labour and Others (1996) TLR 217. She thus prayed for us to find the one-sentence judgment of the Ward Tribunal to fail the test of a proper judgment in the eyes of the law and allow the appeal. On his part, Mr. Raphael adopted the written submissions filed for the respondent and had nothing further to submit. In the written submissions, the respondent commenced querying the incompleteness of the record of the proceedings of the Ward Tribunal arguing that the available record would render it difficult for the Court to determine the appeal. However, 4

concerning the lone ground of appeal, he was adamant that the judgment of the Ward Tribunal was proper since it decided the rights of the parties on what was before it for determination. Whilst conceding to the legal requirements of what a judgment should contain, the respondent's counsel agreed with the observations of the first and second appellate bodies, that in the absence of any prescribed format on what the judgment of the Ward Tribunal should contain or have, there was no imperative for their decisions to contain reasons. He argued that since the judgment of the Ward Tribunal was given after having heard the evidence of both parties and visiting the locus in quo, this was sufficient and proper as the primary objective of the Ward Tribunal in land dispute is to reach an amicable settlement through mediating contending parties. According to him, flowing from that stance, the law provides that when addressing land disputes, the Ward Tribunal is not bound by rules of evidence and procedures like ordinary courts and is empowered to regulate its procedures as provided under section 15 of the Ward Tribunal Act, Act No. 7 of 1985 (Ward Tribunal Act), which it did. Concerning the laws cited by the appellant, the respondent's counsel argued that they do not apply to the Ward Tribunal because it is manned by personnel without legal training or expertise and it is not bound to

apply rules of evidence and other legal technicalities. He thus prayed for the appeal to be dismissed. There was no rejoinder from the appellant. Having heard the rival submissions, we shall commence our determination of this appeal by first addressing the concern raised by the respondent on the incompleteness of the record of appeal. It is imperative to understand that the appeal ground before us raises one issue for our determination, on whether the judgment of the Ward Tribunal is exempted from having the known attributes of a judgment of the court. Indeed, we are of the view that being a point of law, the ground of appeal before us does not require assessing the evidence on record before the trial tribunal. In the circumstances, and taking into account the parties' submissions, we are of firm view that the record before us suffices our determination of the issue before us. For that reason, we find no merit in the respondent's concern and therefore, we shall proceed to determine the appeal on merit. Concerning the ground of appeal, our starting point is discussing what is a judgment. This being an appeal of a civil nature, we find it apposite to reproduce the provision of Order XX rule 3 and 4 of the Civil Procedure Code, Cap 33 (the CPC) which states:

"(4)- A judgment shall contain a concise statement o f the case, the points for determination ; the decision thereon and the reasons for such decision. (5)- In suits in which issues have been framed, the court shall state its finding or decision , with the reason therefore, upon each separate issue unless the finding upon any one or more o f the issues is sufficient for the decision o f the s u it" Similarly, in the case of Abubakari I. H. Kilongo v. Alexalen Memba and Another, Criminal Appeal No. 230 of 2021 (unreported), the Court was inspired by a passage from http://en.m.wikipedia,ora.f visited on 17th October, 2022 which had the following observations on this: "If is settled that one o f the basic principles in the administration o f justice is the requirement imposed on the court to determine one way or the other, the dispute o f the parties brought before it... Thereforef the primary purpose o f a judgment is to set out qualitatively by reference to the evidence that is accepted or rejected; the primary facts that the judge or magistrate finds; to relate those findings to the factual issues in the case; and to show how any inference has been drawn." 7

Flowing from the above legal provision and excerpt, and taking account of the parties' submissions on the issue, the attributes of a judgment are essentially not disputed. However, whilst the appellant wants us to find that the stated attributes of a judgment should also be inferred from the decisions of the Ward Tribunal, the respondent's counsel challenges this assertion and argues that, considering the nature and the composition of the Ward Tribunal, the said attributes do not apply to it. Suffice it to say while recognizing that when composing judgments individuals have different styles, what matters is that the essential ingredients should be there including an analysis of the cases by the parties as held in Amir Mohamed v. Republic [1994] T.L.R. 138. In Lutter Symphorian Nelson v. Attorney General and Another [2000] T.L. R. 439, the Court stated: "Ajudgment must convey some indication that the judge or magistrate has appiied his mind to the evidence on record ..." Another important matter to reflect upon albeit briefly, is the jurisdiction of the Ward Tribunal provided under section 8(1) and (2) of the Ward Tribunals Act which states: n8(l)~ The primary function for each tribunal shaii be to secure peace and harmony in the area o f

which it is established by mediating and endeavouring to obtain a just and amicable settlement o f the dispute. (2) In all matters before it relating to a dispute a tribunal shall attempt to reach a settlement by mediation before exercising its compulsive jurisdiction as provided under this Act and may adjourn any proceedings relating to a dispute in which it is exercising that jurisdiction if it thinks that by doing so a just and amicable settlement may be reached" Furthermore, section 15 of the Ward Tribunals Act provides: "15(1)- The tribunal shall not be bound by any rules o f evidence or procedure applicable to any court. (2)- The tribunal shall, subject to the provision of this Act regulate its own procedure." When discussing the issue before us, the High Court Judge on a second appeal on page 88 of the record of appeal held: "... In my opinion the judgment composed by the trial tribunal is dear and as rightly submitted by Mr. Kavishe since the trial tribunal members are lay members then they cannot be faulted for not composing a judgment like legally trained persons..." 9

Having scrutinized the judgment of the High Court and the submissions by the respondent's counsel in the instant appeal, undoubtedly, the arguments therein underscoring the propriety of the judgment of the Ward Tribunal are founded on the following; one, that the legally prescribed primary role of a Ward Tribunal is to settle disputes amicably through mediation. Two, there is no format prescribing the elements and content of a judgment of a Ward Tribunal. Three, it is the spirit of simplicity enshrined in Ward Tribunals which presupposes that they do not have to follow rules of evidence or procedural technicalities, and fourth, the composition of its members who are lay and not legally trained. In the instant appeal, upon perusal of the judgment of the Ward Tribunal plainly, it does not embrace the spirit of what a judgment of a court should be. For ease of reference, we find it apt to reproduce it as found on page 7 of the record of appeal and it reads: "UAMUZI/HUKUMU MDAIWA MARIANA MWAMAKULA ANATAKIWA KUONDOA UKUTA WAKE NA KURUDIKWENYE MPAKA. UAMUZIHUU UMETOLEWA LEO MBELE YA OSCAR MANSHA Signed ABDALLAH NYAMNYAM Signed 10

ANNA CHANDO Signed JANETH HAIGARU Signed REHEMA MWINYI Signed ZABLON DAUDI Signed YASSIN MSANGI Signed LEONARD MIDELO Signed" [Emphasis Added] In addressing the issue of the viability of the judgment of the Ward Tribunal, we have taken account of the arguments narrated above which in essence arise from the reading of sections 8 and 15 of the Ward Tribunals Act and section 13 of the Land Disputes Act on the nature, duties, jurisdiction and composition of the Ward Tribunal. We have also considered the spirit of section 45 of the Land Disputes Act which states that, no decision or order of the Ward Tribunal or DLHT shall be reversed or altered on appeal or revision for any error, omission or irregularity unless such error, omission, or irregularity has occasioned a failure of justice. A question which arises therefromis thus whether thediscerned error in the judgment of the ward tribunal is minor and thus curable or occasioned miscarriage of justice and the consequences thereto. Indeed, the Court had in the case of Ikindila Wigae v. Republic, Criminal Appeal No. 60 of 2000 (unreported) discussed circumstances where a judgment can be said to lack reasoning. Though it was a case of ii

a criminal nature, we believe its observation and holding are relevant to a situation like the present appeal. It was held: "It is a general principle of law o f this country that, where the determination o f the rights or obligations o f a person is involved, a decision maker must give reasons for his decision... Why should the law demand this? Some eminent authors have given very persuasive answers to this important question " The Court also referred to a book, On Justice, where J.R. Lucas writes as follows, on pp. 79 - 80: "If people are to be convinced that decisions are just) they must be able to know the reasons on which they are based. Although many o f us often are willing to accept the judgment o f a man we respect, that acceptance depends on our sometimes knowing and approving his reasons. It is inherent in the concept o f judgment that it is based on reasons, and only if the reasons are sometimes available for independent criticism and assessment, can we ever come to trust a man's judgment at ail Reasons must sometimes be available, or decisions will seem arbitrary, and will not enjoy public confidence . The requirement that reasons should always be available goes further. It recognizes a party's right to be disappointed by 12

an adverse decision, and the need to assuage it. Instead o f demanding simply that he trust the judge, it allows that the judge could conceivably be wrong, and that the disappointed party could, without irrationality, attribute the adverse decision to an error o f judgment on the judge's part, and therefore goes some way to allay this suspicion by exposing the reasons to scrutiny, and enabling everybody concerned to assess them and feel their force for themselves." The Court made further reference of another author in the book, Emerging Trends in Public Law, where Dr. Mario Gomez gives his answer in the following terms, on pp. 184- 1 , stating: "Reasons indicate that the decision maker has brought his or her mind to bear on the subject matter in question. It shows that the decision is not arbitrary or capricious. It boosts the integrity o f the decision-making process if people are told why they were unsuccessful or why a decision had been made In a certain way. Reasons are strong proof that a decision was made fairly taking into consideration ail relevant factors and was not motivated by personal factors. Reasons also facilitate a subsequent legal challenge to that decision." 13

The Court further observed that, the cited author, at p. 232, adds that: "A lack of reasons may not only leave a person 'disappointed' but also 'disturbed/'7 [emphasis added] The Court thus concluded that: "It cannot be doubted that reasons enhance public confidence in the decision-making process. I f a judge or magistrate were to decide a matter before him by tossing a coin , it is quite possible that his decision would be correct, but neither a lawyer nor a layman would regard it as being acceptable. The decision would be unacceptable on the grounds o f irrationality. Although compliance with the requirement o fgiving reasons cannot protect parties against all wrong decisions, for the reasons very abiy given by the distinguished authors in the passages we have quoted above, the importance o f the right to reason cannot be over-emphasized. A party to a court proceeding is perfectly entitled to tell the judge: "My Lord, make your decision, but let me know the reason or reasons for i t " In the instant case no reasons for the learned Judge's decision were discernible on record. This irregularity was, in our opinion, another ground for faulting the learned Judge's decision." 14

(See, Tanzania Air Services Limited v. Minister for Labour and 2 Others [1996] T.L.R. 217) We subscribe to the findings above. Being a third appeal, our role is mainly to address the point of law raised and nothing further. We have considered the circumstances of this case particularly the essence of a Ward Tribunal which is to mediate parties amicably, the composition of the members who are lay persons, and the fact that the application of rules of evidence or procedural technicalities is discouraged. Moreover, we are of the firm view that, the Ward Tribunal is a court that ascertains the rights and liabilities of parties. A court whose decision is executable in the DLHT and appealable up to the level of this Court, in the interest of fairness, certainty, and justice, it is essential for those composing judgments to provide reasons for the decision made. In the instant appeal, we have noted thatc, at the time the claims subject to this appeal were instituted in 2016, the law already stipulated that a ward tribunal is a court under section 167 of the Land Act and section 10(1) of the Land Disputes Act. A ward tribunal determines the rights and liabilities of parties therefore, it cannot be excluded from the requirement to give reasons in its judgments. 15

We are of the firm conviction that the interests of justice demand that we nullify and quash the judgment of the Kawe Ward Tribunal in Application No. 222 of 2016. In consequence, the proceedings and judgments of the High Court, DLHT are nullified as they were based on an erroneous judgment of the Ward Tribunal. Parties are at liberty to institute fresh proceedings in a competent forum under the law and procedure. All in all, the appeal is allowed to the extent shown with costs. DATED at DAR ES SALAAM this 27th day of August, 2024. W. B. KOROSSO JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 28th day of August, 2024 in the presence of the Appellant in person and in absence of the respondent, is hereby certified as a true copy of the original. 16