Fatuma Abdallah vs Twaiba Omari (Criminal Appeal No. 27 of 2002) [2004] TZCA 118 (27 October 2004)

THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: RAMADHANI, J. A.; NSEKELA, J. A.; And KAJI, J. A.) CIVIL APPEAL NO. 27 OF 2002 BETWEEN FATUMA ABDALLAH ... APPELANT AND TWAIBA OMARI ... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Moshi) (Munuo, 1) dated the 27th day of April, 2000 In Civil Appeal No. 57 of 1999 JUDGMENT OF THE COURT RAMADHANI, J.A.: The appellant, Fatuma Abdallah, successfully sued the respondent, Twaiba Oman, in the Primary Court of Hai Kati and that decision was upheld by the District court of Hal District when the appeal by the respondent was dismissed. The respondent went to the High Court where MUNUO, J. (as she then was) allowed the appeal and quashed all the proceedings of the two lower courts on the grounds that: Since Land Dispute No. 2/98 was and is stHl pending at the Land Tribunal at Hal, this case is incompetent and not properly before the courts. Accordingly the proceedings, judgments, decrees and orders in the Hai Kati Civil Case No. 21 of 1998 and Hai District Court Civil Appeal No. 10 of 1999, the appeal thereto,

2 are nullified for want of jurisdiction. The defendant should pursue Land Dispute No. •2 of 1998 for determination on merit. We think that the learned judge by "defendant" meant the present respondent, that is, Twaiba Oman, who was the plaintiff before the Land Tribunal at Hai and so, she required Twaiba to pursue her claim there. The learned judge's decision was that the two lower courts had no jurisdiction. We take it that it was the Primary Court of Hal Kati, where the matter originated, as the one without jurisdiction. And this is the point of law we have to decide: whether or not the Primary Court of Hal Kati had jurisdiction and so whether or not its proceedings, and those of the District Court after it, were null. When the appeal came for hearing the appellant was in person but the respondent was absent. As we were satisfied that she was properly served, and as the process server annotated behind the S notice that she first refused to receive it until Issa Shuma, the Secretary of the Kitongoji, 'intervened, we decided to proceed ex

3 parte. The appellant said that she had nothing to add to what is already in the record of appeal. We better preface the judgment with a concise account of what transpired and hence this appeal. We are going to use the first names of the parties for simplicity and clarity. Fatuma is the step- mother of Twaiba. One, Abdallah Iddi Masawe, deceased, was the husband of FatUma and was also the father of Twaiba by another wife. He divided his plot of land and the two women have a common border which is the source of the dispute. On 03rd May, 1998, Twaiba filed Land Dispute No. 2 of 1998, with the Land Tribunal at Hal (hereinafter referred to as the Tribunal), and ten days later, on 13th May, 1998, Fatuma filed Civil Case No. 21 of 1998 with the Primary Court of I Hai Kati (hereinafter referred to as the court). The subject matter in either cause is essentially the same, trespass. When the parties went to the court on 19th May, 1998, Twaiba revealed that the matter was with the Tribunal but Fatuma

said that she had not been summoned. These two facts were recorded by the Primary Court Magistrate (PCM). However, our perusal of the , court file has revealed that there were some correspondence between the PCM and the Secretary of the Tribunal enquiring as to which litigation was first in time so that the other could be closed. Finally, the Secretary wrote to the PCM, Ref. CLT/HAI/2/98/8, of 28th May, 1998, in response to the PCM's letter, Ref. Civil Case No. 21/98, which we think we better reproduce: Shãuri hili naona linahitaji kushughulikiwa mapema, kutokana na hawa wadwa wanavyolifuatia. Pamoja na kuwa Twahiba w/o Omari ndiye aliyetangulia kufungua shauri hapa Barazani, na kwa vile Baraza.la Ardhi (W) kwa sasa halijapata fungu.la kuendeshea Baraza, na kwa kuokoa muda wa Wadaawa, "Nashauri Mahakama yako ingeendelea kusikiliza shauri liliopo hapo kwako na kulitolea uarnuzi. Na yeyote ambaye hataridhika na Hukumu itakayotolewa itabidi akate Rufaa kwenye vyombo vi navyohusika". The PCM brought this letter to the attention of the court on the same day, 28th May, 1998, and both assessors agreed with the advice of the Secretary of the Tribunal and demanded that Twaiba be informed of the contents of the letter though she was sent a copy. After that

5 the matter continued to be heard by the court. Now, did the Primary Court have jurisdiction to do so? At the High Court Mr. Itemba, learned advocate for Twaiba, then the appellant, made a submission which appear to have influenced the learned judge. This is what the learned judge said quoting the submission: The Secretary of the Hal Land Tribunal, in his letter of the 28/5/98 "allowed" the Primary Court to determine this case on the ground that the tribunal had no funds for conducting cases. This was a gross misdirection on the part of the Secretary of the Customary Land Tribunal at Hai. As it is the Land Tribunal cannot and has no power to confer jurisdiction on the courts. Once Land dispute No. 2 of 1998 has been instituted by the defendant, the same dispute could not be filed in the Primary Court as that would create duplicity of suits. The defendant could if she wanted withdraw the case before the Land Tribunal or ask the Tribunal to strike it off. Only then would the Primary Court have jurisdiction to entertain the present case. We have no doubts in our minds that what the learned judge was concerned with was "duplicity", that is, according to her, the same issue should not be before the Primary Court and the Land Tribunal at the same time. One of the' two had to close its file. We are entirely

6 in agreement with her there but we are a shade unsure whether that is a question of jurisdiction. She obviously conceded, and rightly so, in our view, that there is concurrent jurisdiction on the matter between the court and the Tribunal and that only one is to be moved and not both of them at the same time. On the jurisdiction of Primary Courts LUGAKINGIRA, J. (as he then was) said in Zacharia MilalO v. Onesmo Mboma [1983] TLR 240 at 244: In so far as,I know, there are three situations in which a Primary Court would not have or would be deprived of jurisdiction. These are where the law applicable is neither customary law nor islamic law; where jurisdiction is expressly taken away by statute; and where the dispute is of such legal and technical complexity as to be considered beyond the competence of such court. In all other respects a Primary Court has and may exercise jurisdiction. Surely, the matter here is customary law land tenure and it is also not of such legal and technical complexity as to be beyond the competence of the Primary Court. So, is there a statute which has expressly taken away jurisdiction from the Primary Court?

7 At the time of this dispute, in 1998, the Tribunals were created under section 8 of the Customary Leaseholds (Enfranchisement) Act, 1968, Act No. 47 of 1968, (hereinatter referred to as the Act). The situation is not the same now after amendments by Act No. 2 of 2002, but that does not concern us in this appeal. Section 12, as it was then, required decisions and the record of proceedings of a Tribunal to be filed in a Primary Court having jurisdiction over the area in which the land in dispute is situate. The decisions or orders so filed were enforced as if they were of the Primary Court concerned. Section 13 required appeals from a Tribunal to go to a District Court which was given, mutatis mutandis, the same powers it has in relation to appeals from Primary Courts under section 17 of the Magistrates' Courts Act, 1963. It is obvious to us that the Act did not vest jurisdiction exclusively on Land Tribunals and deny it to Primary Courts. If anything, in our opinion, the Land Tribunal and the Primary Court were put at par. Thus they had concurrent jurisdiction and hence, as we said earlier, MUNUO, J. was correct to have held so.

4 , 8 We have also said that MUNUO, J. was right to have held that the dispute should have been. withdrawn from one of the two forums. Our understanding of the letter of 28th May, 1998, from the Secretary of the Tribunal, is that the Tribunal vacated its jurisdiction to deal with the matter for the two very good reasons assigned in the letter. In that case the dispute filed in the Tribunal ought to have been struck out. If that was not done, the learned judge should have ordered the Tribunal to do so. Equity treats as done that which ought to have been done. It is our decided opinion fhat this final Court of the land should administer equity in befitting cases. This is certainly one of them. Since the learned judge did not order the Tribunal to strike out the dispute before it, we now step into her shoes and exercise, under section 4 (2) of the Appellate Jurisdiction Act, 1979, as amended by Act No. 17 of 1993, the "authority and jurisdiction vested in the court from which the appeal is br9ught".