Morris Hamza Azizi vs Angelina Simon Mhavile & Another (Civil Appeal No. 73 of 2013) [2014] TZCA 2387 (12 March 2014)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MBAROUK, J.A., MASSATI, J.A., And JUMA, J.A.) CIVIL APPEAL NO. 73 OF 2013 MORRIS HAMZA AZIZI .................................................... APPELLANT VERSUS

1. ANGELINA SIMON MHAVILE . 1_. .... i ... ~ ................ RESPONDENTS
2. RUPESH CHANDRAKANT KANABA~ .· . (Appeal from the decision of the High Court of Tanzania District Registry ....... -- .. _ -------·- __ ... ________ -~t.Qa.r:.es.S.ala.aml _ --·----··· __ _ ... _ ·--- -----•-·-·•------·-·----· (Hon. Shangwa, J.) Dated 2 nd day of September, 2013 In Land Case No. 108 of 2012 RULING OF THE COURT 5 th & 1s th March 2014 )UMA, J.A.: Plot No. 20/1 and Plot No. 20/2 at AMANI GOMVU AREA in Temeke Municipality of Dar es Salaam is at the centre ·of this appeal. Morris Aziz, vvho is the appellant, filed a suit, Land Case No. 108 of 2012 in the District Registry of the High Court at Dar es Salaam. He cited Angelina Simon Mhavile (1 st respondent herein) and Rupesh Chandrakant Kana bar (2 nd 1

respondent), as his defendants. The appellant claimed that on 24/03/2011 the 1 st respondent had agreed to sell to him half of 7.67 acres from Plot No. 20/1 for a consideration of shs. 350,000,000/=. He complained that, although he paid half this amount, the 1 st respondent subdivided the parcels and processed the transfer of the divided plots to the 2 nd respondent. The appellant's suit was objected on the ground of want of cause of action. The trial High Court (Shangwa, J.) upheld the objection and dismissed the suit hence this appeal. Before this appeal was set for hearing, the respondents' counsel filed two separate sets of preliminary objection. On 8 th October, 2013 Mr. Deiniol Msemwa, learned Advocate filed the 1 st respondent's objection contending that this appeal is bad in law for having been filed without first seeking leave of the High Court. On 5 th November, 2013 Mr. Peter Bethuel, learned Advocate, filed the 2 nd respondent's objection also contending that this being a land matter, the appellant should not have filed this appeal \Nithout first seeking and obtaining leave of the High Court under section 47 (l) of the Land Disputes Courts Act, CAP. 216, R.E. 2002 (hereinaher referred to as the Land Courts Act). 2

At the hearing of the appeal on 6 th March, 2014 Mr. Semu Anney, learned advocate, appeared for the appellant and Mr. Msemwa, learned advocate, appeared for the 1 st respondent. Mr. Bethuel Peter, learned advocate, who appeared for the 2 nd respondent abandoned his second ground of objection. He focused his submissions on the remaining ground contesting lack of leave of the High Court. L_ ____ · ___ Mr. Msemwa begc:1n by submitting that a.D_y__Qerson, who i~~ggrieved ! i 1 by the decision of the High Court in the exercise of its original jurisdiction over land disputes, can only appeal to the Court -after obtaining leave of the High Court. This is a mandatory requirement under section 47 (1) of Land Courts Act, he contended. Mr. Msemwa did not dispute the fact that the Land Courts Act was indeed amended in 2010 by the Written Laws (Miscel!an.eous Amendments) Act No. 2. of 2010 (hereinafter referred to as Act No. 2 of 2010). He however pointed out several matters which were not affected by the amendment. The learned counsel pointed out that the Act No. 2 of 2010 did not prohibit the High Court, sitting as a land court, from exercising. its statutory jurisdiction over land disputes under section 3 (2) (d) of Land Courts Act. Secondly, he submitted that the amendment did 3

not dispense with the mandatory requirement to obtain leave before lodging of appeals to the Court. Thirdly, that Act No 2 of 2010 did nothing more than to delete the words "High Court {Land Division)" from the Land Courts Act and substituted for it with the term "High Court". The words "with the leave from the High Court appeal to the Court of Appeal in . accordance with the Appellate Jurisdiction Act;, 197g' appearing in section . . 47 (1) · of Land Courts Act remained intact. The main thrust of Mr. Msemwa's argument is that Act No. 2 of 2010 did not repeal section 47 (1) · and as a result the mandatory requirement for leave under this provision remained undisturbed. The learned Advocate capped his submission by insisting that the statement of law this Court made in Dero Investment Limited vs. Heykel Berete, CIVIL APPEAL ,i'Jo.· 92 OF 2004 ( unreported) still stands. This statement is to the effect that appeals from decisions of the High Court sitting as land court, are by 'prior leave of the High Court. On the mandatory requirement for leave, the submission by Mr. Bethuel Peter was brief, expressing his total agreement with the legal position articulated by Mr. Msemwa. 4

.J I I Mr. Semu Anney took a starkly different stand from the one taken by other learned counsel. He argued that his own reading of section 47 (1) of Land Courts Act leaves him in no doubt. that the word "may 11 in this provision implies that the requirement for leave is not mandatory as suggested by his learned colleagues; It is discretionary on the party wishing to appeal to the Court. Mr. Anney submitted that the obligation to seek leave does not apply to appeals like present one which originate from the main or district registries of the High Court. To that end, the learned advocate is of the view that the precedent which the Court laid down in Dero Investment Limited (supra) on mandatory requirement for leave is -, restricted to appeals from the High Court (Land Division) and does not in any event extend to land disputes originating:from the main registry of the High Court. Mr. Anney believes that the net effect of the amendment of Land Courts Act by Act No. 2 of 2010 was· to make section 47 (1) inoperative, leaving room for automatic right' of appeal from High Court sitting as land court under of section 5 (1) (a) of the Appellate Jurisdiction Act. By contending that section 47 (1) is ·"inoperative," Mr. Anney is in effect suggesting that the Court will still· be seized with appellate 5

jurisdiction over land disputes that are filed without prior leave of the High Court. From the submissions of the three learned advocates it is not disputed that this appeal arose from a land dispute which originated from the High Court of Tanzania (Dar es Salaam District Registry). What, however, is in dispute is whether such an appeal needed prior leave of the High Court under section _47~)_of the_Land Cbu_rts f\ct. In its very e~_gmce, __ this question of leave is jurisdictional, whether this Court can in the circumstances of this appeal be seized with appellate jurisdiction over land dispute outside the framework of section 47 (1). The duty placed on· courts to ensure that they are clothed with statutory or constitutional jurisdiction was aptly underscored in Aman Malewo vs.· Diocese of Mbeya (R.C.), CIVIL APPEAL NO. 22 OF 2013 (unreported), where the Court said: ''It is trite law that the issue of Jurisdiction for any court is basic as 'It goes to the vety root of the authority of the court to adjudicate upon cases of different nature' and this must always be ascertained at the commencement of any proceeding (Fanuel Mantiri Ng'unda v. Herman M. Ng'unda & Others, Civil Appeal No. 8 of 1995 (unreported). Furthermore, this Court in Richard Julius Rukambura v. Issack N. Mwakaji/a & Another, Civil Appeal No. 3 of 2004, (unreported) held that the issue of 6

jurisdiction being so fundamental can be raised at any stage and even suo motu. " In ascertainment of our jurisdiction, we think Mr. Msemwa was correct to submit that section 3 of the Land Courts Act identifies courts which are vested with statut9ry jurisdiction to deal with land disputes. Section 3 (2) (d) recognizes the High Court as an example of a recognized larid court: 3.-(1) Subject;. to section 167 of the Land Act;. 1999, and section 62 of the Village Land Act;. 1999, evety dispute or complaint concerning land shall be instituted in the Court having,, jurisdiction,, to determine land disputes in a given area. (2) The Court of jurisdiction under subsection (1) includes: {a) The Village Land Council-,, {b) The Ward Tribunal; {c) The District Land and Housing Tribunal; ' {d) The High Court; {e) The Court of Appeal of Tanzania. [Emphasis added]. Vl/e next move on to determine whether the present appeal lies to this Court automatically under section 5 (1) (a) of the Appellate Jurisdiction Act, or it must have passed through a leave procedure, under section 47 (1) of the Land Courts Act. As this Court once said, whenever there is an 7

appeal to this Court there is a law behind which gave the right to appeal.'~ PAUL A. KWEKA and Hillary P. Kweka vs. Ngorika Bus Services and Transport Company Limited, CIVIL APPEAL NO. 129 OF 2002 (unreported). In so far as statutory right of appeal is concerned, Mr. Anney contended that the appellant, being aggrieved by the decision of the High Court as a land court, enjoys an automatic right of appeal to this Court. Mr. L _______ Msemwa and Mr._ Bethuei __ Peter -h~ve-~n- the_other _ hand jnsisted __ that the I l appellant cannot exercise his right of appeal to this Court without obtaining I I I leave. To appreciate these rival submissions it is important to recognize the legal premise provided by the Appellate Jurisdiction Act, which, as its Long Title suggests, it was enacted to provide for appeals to the Court of Appeal of the United Republic of Tanzania. Section 5(1) of Appellate Jurisdiction Act provides a useful starting point for our determination of the question whether the appellant had an automatic right of appeal without recourse to leave. The section states- "5.-(1) In civil proceedings, except where any other written law for the time being in force provides otherwise/ an appeal shall lie to the Court of Appeal- {a).. . (b).. . 8

{c}. .. // [Emphasis added]. The Court has on several occasions interpreted the scope of the words "except where any other written law for the time being in force provides otherwise" in section 5 (1}. These words imply that the Appellate Jurisdiction Act is not the only written law that provides the . . __ -~ tEutory_i_2_-~! __ ~e_pealing to the Court. ___ In other words, section 5 _ (1)___ _ _ _ leaves open to other ,written laws to enact statutory rights for appealing to the Court. This was discussed in East African Development Bank vs. Khalfan Transport . Co. Limited, CIVIL APPEAL No. 68 of 2003 (unreported) where the Court said:- '... the Appellate Jurisdiction Act provides for the right of appeal to the Court of Appeal against decrees and orders made by the High Court in the exercise of its original appellate and/or revisional Jurisdiction. However, it is expressly provided therein that this right of appeal shall be available subject to the provisions of "any other written law for the time being in force" providing otherwise. If that particular written law provides that an appeal shall not lie against the order or decree · complained of, then s. 5 (1) of the Act cannot be used as a basis of an appeal to this Court .. ' [Emphasis Added]. 9

The Tax Revenue Appeals Act, Cap. 408 R.E. 2006 (hereinafter referred to as Cap 408) is one ready example of that 'other written law for the time being in force' which provides a statutory right of appeal to the Court. Any person aggrieved by the decision of the Tax Revenue Appeals Tribunal is entitled under section 25 (1) of Cap. 408 to lodge an appeal to this Court. The relevant Section 25 states: 25.-(1) Any person who is aggrieved by the decision of the Tribunal may prefer an appeal to the Court of Appeal. The Land Courts Act is also an example of a written law envisaged under section 5 (1) of the Appellate Jurisdiction Act. Section 48 Land Courts Act provides an avenue for appealing to the Court in the following way: 48. -(1) Subject to the provisions of the Land Act;. 1999 and Village Land Act;. 1999 the Court of Appeal shall have iurisdiction to hear and determine appeals from the High Court. (2) The Appellate Jurisdiction Act;. 1979 shall apply to proceedings in the Court of Appeal under this section. [Emphasis added]. 10

Reading section 48 together with the preceding section 47 (1), it seems to us clear that the intention of the legislature was to make the statutory right of appeal conditional and dependent on appellant obtaining leave of the High Court. Section 47 (1) of Land Courts Act states: 47.-(1) Any person who is aggrieved by the decision of the High Court in the exercise of its original revisional or appellate Jurisdiction may with the leave from the High Court appeal to the Court of Appeal in accordance with · - - ----- -- -- - -- ·-· -- -tne'4ppellete-:lltrisdiction-74ct;,--1979;-fEmphasis-addedj-. .--- We would like next to discuss the effect of the amendment of Land Courts Act by Act No. 2 of 2010 specifically its impact on section 47 (1). ,· Section 19 of the Written Laws (Miscellaneous Amendments) Act No. 2 of 2010 amended Land Courts Act and deleted the words "(Land Division)" whenever these words appear. Section 19 stated:

• .l 9. The principal Act is amended by deleting the- {a) definition of the term ''High Court {Land Division)// and substituting for it the following definition: ''High Court// means the High Court of Tanzania established by Article 108 of the Constitution of the United Republic/;· {b) term "High Court {Land Division)//wherever it appears in the Act and substituting for it with the term ''High Court/; {c)....... . 11

. Before the amendment of Land Courts Act section 47 (1) stood as follows: 47.-(1) Any person who is aggrieved by the decision of the High Court (land Division} in the exercise of its original revisional or appellate jurisdiction/ may with the leave from the High Court {land Division} appeal to the Court of Appeal in accordance with the Appellate Jurisdiction Act 1979. · ----·- ----~------------•--- [Emphasis added]. · After the amendment by Act No. 2 of 2010 section 47 (1) now states: 47.-(1) Any person who is aggrieved by the decision of the High Court in the exercise of its original revisional or appellate jurisdiction may with the leave . from the High Court appeal to the Court of Appeal in accordance with the Appellate Jurisdiction Act 1979. [Emphasis added]. It is clear from the amended text of section 47 (1), we now have one , High Court of Tanzania as established by Article 108 of the Constitution of the United Republic of Tanzania. Section 3 (2) (d) Land Courts Act recognizes this one High Court as one of the land courts in Tanzania. On a cursory glance at the amended text of section 47 (1), despite the 12

amendments, leave of the High Court is still a mandatory requirement before an appeal can lie to the Court. We do not as a result agree with Mr. Anney in his suggestion that the requirement for leave was designed to cover only decisions of the "Land Division" of the High Court. Neither do we accept the learned advocate's contention that the word "may" in section 47 (1) implies that leave is at the _______ ~-~is!:!~~ion of the parties seeking to appeal. 'The word ~~QJ_ 9 _y" in th_a_t ____________ _ provision is about the discretion of a potential appellant to decide to appeal or not to appeal. Once a decision is taken to appeal, the intending appellant must comply with the mandatory requirement of leave. As all the three learned Counsel have observed, the question whether leave is a prerequisite to appealing to the Court in land disputes was exhaustively discussed in Dero Investment: Limited vs. Heykel Berete (supra). This was an appeal that was decided-well before the amendment of Land Courts Act in 2010. In that case, an ·appellant had sought to appeal as of right from decision of the Land Division of the High Court. The Court stated: 13

Our reading of section 47 (1) of the Act gives us a firm conviction that Parliament;, curiously, intended evety word of that provision. In other words it intended the departure from the provisions· of section 5 (1) {aJ of the Appellate Jurisdiction Act;, 1979. Although we agree that in certain compelling circumstances the Court may have to ''tead into" a section or ''read out" of a section words in order to bring out the intention of Parliament;, there is no need here to ''read ouC' any words frorn section 47 (1) as suggested by both counsel for the parties. It is clear to us that the amendment of Land Courts Act by Act No. 2 . of 2010 did not affect the- underlying principle enunciated in Dero Investment Limited (supra) that leave is a mandatory requirement before lodging appeals from decisions of the High Court on land disputes. In the result, we uphold the preliminary objection on the ground that no leave was obtained so as to vest this Court with requisite jurisdiction to hear the appeal. This appeal is incompetent and is hereby struck out with costs. It is ordered accordingly. 14

.. DATED at DAR ES SALAAM this on 12 th day of March, 2014. M.S.MBAROUK JUSTICE OF APPEAL S.A.MASSATI JUSTICE OF APPEAL I. H. JUMA JUSTICE OF APPEAL I certify that this is a true copy of the original. ~ F. J. KABWE DEPUTY REGISTRAR COURT OF APPEAL 15