Shabani Ramadhani vs Zacharia Isaya and Others (LAND APPEAL NO 31767 OF 2025) [2026] TZHC 2994 (5 June 2026)
Judgment
IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA LAND APPEAL NO 31767 OF 2025 ( From the District Land and Housing Tribunal for Singida at Singida in Land Application No 57 of 2025) SHABANI RAMADHANI ....................................................................... APPELANT VERSUS
- ZACHARIA ISAYA ....................................................................................... I st RESPONDE
- IBRAHIMU WAWA ...................................................................................... 2 nd RESPONDE
- ADVENT DONALD MSELA .......................................................................... 3 rd RESPONDE JUDGMENT Date: 29/5/2026 & 5/6/2026 MASABO, J.:- This appeal arises from the decision of the District Land and Housing Tribunal for Singida at Singida in Land Case No. 57 of 2023, delivered on the 19 th day of November 2025, whereby the tribunal dismissed the appellant's claim and declared the 3 rd respondent the lawful owner of Plot No. 621 Block "EE" Unyakumi, situated at Mandewa Ward within Singida Municipality. The undisputed factual background to the appeal is as follows. The appellant was the original lawful owner of the suit land. In 2017, he and the first respondent agreed to exchange their plots. In that transaction, the appellant offered the suit plot in exchange for an unsurveyed parcel of land located at VETA area within Singida Municipality, owned by the first respondent. Later, the suit plot passed hands after the first respondent exchanged it with Ibrahim Wawa, the second Page 1 of 9
respondent herein, who offered him Plot No. 618 in a transaction witnessed and duly acknowledged by the appellant. It further changed hands after the second respondent sold it to Advent Donald Msela, the third respondent herein. After these transactions had been concluded, the appellant learned that the unsurveyed land at the VETA area, which he had received from the 1 st respondent in exchange for the suit plot, had a dispute. He went back to the first respondent demanding recovery of the suit land. Since the plot had changed hands, the 1 st respondent offered to compensate him, but they did not agree. As a result, the appellant instituted the suit seeking a declaration that he lawfully owns the suit plot and nullification of all the transactions between the respondents over the suit land. After hearing all the parties, the trial tribunal declined the prayers, holding that the 2 nd and 3 rd respondents were bona fide purchasers of value and they were therefore protected by the law. It subsequently directed the 1 st respondent to compensate the appellant while it declared the 3 rd respondent as the lawful owner of the suit land. Aggrieved, the appellant lodged the present appeal challenging the tribunal's judgment and decree on the following grounds: One, the trial tribunal erred in ordering the 1 st respondent to compensate the appellant while contradicting itself by holding that the appellant was given an unknown area or plot by the 1 st respondent; second, the trial tribunal erred in ruling that the 3 rd respondent is the registered owner of the suit plot whilst he did not tender any document to prove his ownership; third, the trial tribunal erred in law and fact as it overlooked the 1 st respondent's admission and documentary evidence confirming the transaction by which the appellant and the 1 st respondent exchanged their plots; and lastly, the trial tribunal erred in law for failure to appreciate that the 3 rd respondents ownership of the suit land was tainted by wrong passing of title from Page 2 of 9
the 1 st respondent to the 2 nd respondent who sold the suit plot to the 3 rd respondent. The parties were represented. Ms. Zahara Chima, learned advocate, appeared for the appellant, while Ms. Agnes Zinga, learned advocate, appeared for the first respondent, but she later on withdrew from the proceedings. The 3 rd respondent was represented by Mr Buberwa Prudence, learned advocate. On 4 th may 2026 the hearing was scheduled to proceed in writing. In compliance with the scheduling order, the appellant and third respondent filed their submissions on time, while the first and second respondents did not file their respective submissions. Before I embark on determining the grounds of appeal, I think it is apposite at this outset to address the 1 st and 2 nd respondent's default to file their written submissions and its consequences. It is settled law in our jurisdiction that hearing by way of written submission and viva voce hearing are all similar, and the failure to file a written submission when ordered by the court is tantamount to a default appearance on the date of hearing, which entails failure to prosecute/defend the appeal. It attracts the consequences stated under Order XXXIX rule 17(2) of the Civil Procedure Code, Cap 33 R.E 2023, if the defaulting party is the respondent. This provision states that, where the appellant appears on the date of hearing and the respondent does not appear, the appeal shall be heard ex paite. The Court of Appeal, dealing with a similar issue in Godfrey Kimbe vs Peter Ngonyani (Civil Appeal No. 41 of 2014) [2017] TZCA 1 (25 July 2017), held thus: "We are constrained to decide the preliminary objection without the advantage of the arguments of the applicant. We are taking this course because failure to lodge written submissions after being so ordered by the Court, is tantamount to failure to prosecute or defend one s case- see: National Insurance Corporation of (T) Page 3 of 9
Ltd & another v. Shengena Limited, Civil Application No. 20 of 2007 and Patson Matonya v. The Registrar Industrial Court of Tanzania & another, Civil Application No. 90 of 2011 (both unreported). In both cases, among many others, the Court held that failure by a party to lodge written submissions after the Court has ordered a hearing by written submissions is tantamount to being absent without notice on the date of the hearing. In the Shengena case, for instance, we observed: "The Applicant did not file submission on due date as ordered. Naturally, the court could not be made impotent by a party's inaction. It had to act. ... it is trite law that failure to file submission(s) is tantamount to failure to prosecute one's case." This being the law, the 1 st and 2 nd respondents are found to have defaulted appearance, and the appeal will therefore be determined ex parte against them. Reverting to the grounds of appeal and the submission by the parties, while reading Mr. Buberwa's reply submission, I have observed that, further to his submission in reply to the 4 grounds of appeal, he raised and submitted a new point regarding compliance with section 13(4) of the Land Disputes Courts Act, Cap 216 R.E 2023. Much as this is inconsistent to the provision of Order XXXIX rule 2 of the Civil Procedure Code that bars the parties from submitting or arguing in support of a point not set out in the memorandum/petition of appeal, for the following two reasons, it is apposite that the point raised should not be shelved. First, it is a pure point of law with a bearing on the jurisdiction of the tribunal and second, the appellant respondent exercised his right to be heard in respect of this Page 4 of 9
point as Ms. Chima replied to it in her reply submissions. Thus, both parties have duly exercised their right to be heard, which is a paramount requirement. In support of the new point, Mr. Buberwa submitted that the trial tribunal's proceedings were fatally defective for noncompliance with section 13(4) of the Land Disputes Courts Act, Cap 216 R.E 2023. Elucidating the non-compliance, he submitted that section 13 mandatorily requires the parties to refer their dispute to the ward tribunal for mediation before filing it in the District Land and Housing Tribunal. In the present case, this requirement was partially complied with because, as per the certificate of mediation admitted as Exhibit P2, the mediation before the ward tribunal exclusively involved the appellant and the 1 st respondent. The 2 nd and 3 rd respondents were not involved. Relying on the decision of this court in Martin Moshi Vs Benny Mbiro & Another (Land Appeal No. 11789 of 2024) [2024] TZHCLandD 710, TANZLII, he submitted that the failure to call all parties in mediation proceedings before the ward tribunal is as good as having failed to refer the matter for mediation, and it renders the subsequent proceedings incompetent. He prayed that the trial tribunals' proceedings, judgment and decree be quashed and set aside with costs. Ms. Chima, opposed. While admitting that the 2 nd and the 3 rd respondent did not participate in the mediation, and while acknowledging the position propounded in the cited authority, she submitted that this area is not settled. There are diverging schools in the High Court, one propounding the position in Martin Moshi Vs Benny Mbiro & Another (supra) and the other school holding that, in the circumstances such as the one at hand where the matter was sent for mediation and there is certificate to that effect, the non-participation of the parties who were joined to the proceedings after the matter had been filed in the DLHT is Page 5 of 9
inconsequential (see Samwel Majuto Mwinuka vs Isaya Mahenge & 3 Others (Land Appeal No. 7150 of 2024) [2025] TZHC 917 (19 March 2025), TANZLII. Based on this second school, she submitted and prayed that the point raised by the learned counsel be overruled and the appeal be determined on merit. I have considered the rival submission by the parties. Section 13(4) of the Land Dispute Courts Act which is the epicenter of their contention provides that: "(4) ........ , the District Land and Housing Tribunal shall not hear any proceeding affecting the title to or any interest in land unless the ward tribunal has certified that it has failed to settle the matter amicably: Provided that, where the ward tribunal fails to settle a land dispute within thirty days from the date the matter was instituted, the aggrieved party may proceed to institute the land dispute without the certificate from the ward tribunal." Undeniably, and as correctly submitted by both parties, this provision prescribes a mandatory requirement for reference of land disputes for mediation before at a ward tribunal before instituting them in the District Land and Housing Tribunal. The use of the word 'shall', which implies a mandatory statutory requirement, underscores the importance of amicable settlement of land disputes and a preferable means for resolving land disputes by obliging the parties to avail themselves for amicable settlement of their disputes. Thus, as held in Martin Moshi Vs Benny Mbiro & Another (supra), it should not be taken as a cosmetic or a mere formality. While reading the authorities cited to discern the effect of noncompliance with section 13(4), I also encountered the two schools submitted by Ms. Chima. The Page 6 of 9
first school as held in Martin Moshi Vs Benny Mbiro & Another (supra) and James Roki Moshi vs Athumani Masoud Mhinda and Another (Land Appeal No. 13975 of 2025) [2025] TZHCLandD 728 TANZLII holds, participation in mediation is mandatory for all the parties and where, a party who did not participate in mediation is belatedly impleaded after the institution of the and matter before the DLHT, the matter should be withdrawn and referred back to the ward tribunal for mediation. The second school, as held in Asha Omary and another vs Apolinary Nicodemu Manda (Suing as the Administratrix of the Estate of the late Nicodemus Tluway Manda), Land Revision No. 10 of 2022 [2023] TZHC 16186 (15 March 2023) TanzLII and Samwel Majuto Mwinuka vs Isaya Mahenge & 3 Others (Land Appeal No. 7150 of 2024) [2025] TZHC 917 (19 March 2025) maintains that, where a party who did not participate in the mediation is belatedly joined to the proceedings by an order of the DLHT, reference of the matter back to the ward tribunal for mediation is neither necessary nor mandatory. I entirely agree with the observation of this court in Samwel Majuto Mwinuka vs Isaya Mahenge & 3 Others (supra), that when dealing with section 13(4) above, the peculiar circumstances of each case should be the determining factor, due regard being, in my view, the manner by which the party was excluded and belatedly impleaded. This is important to avoid the risk of unnecessarily prolonging and delaying the dispensation of justice or defeating the purpose of section 13(4) by encouraging unscrupulous litigants to deliberately circumvent amicable settlement by excluding the necessary parties with a hope of joining them belatedly through a prayer for amendment after the matter has been filed in the DLHT. Page 7 of 9
In the present case, it is undisputed that the appellant referred the dispute for mediation before Mandewa ward tribunal. A certificate certifying that the tribunal failed to settle the matter amicably was admitted as Exhibit P2. It shows that the mediation exclusively involved the appellant and the first respondent. When the applicant filed the application in the trial tribunal, he only impleaded the first respondent as the sole respondent. Later on, his counsel sought and obtained leave for amendment to implead the 2 nd and the 3 rd respondent, based on what his counsel submitted as a belated discovery that the plot was registered in the 3 rd respondent's name, who purchased it from the 2 nd respondent. However, reading the record, it is crystal clear that the alleged discover/ was not new because, in his evidence, the appellant, testifying as PW1, stated that he was not only aware that the suit plot had been sold to the 2 nd respondent but he was a witness in the transaction between the 1 st and the 2 nd respondent. Thus, he knew very well that the suit land had changed hands and it was owned by the 2 nd respondent. Since the appellant's prayer was for the recovery of the suit land, which, in his knowledge, had been sold to the 2 nd respondent, he knew very well that his prayer and the amicable settlement could not have succeeded in the absence of the 2 nd respondent as a necessary party. The inexplicable exclusion of the 2 nd respondent raises an impression that the appellant deliberately treated the mediation as a mere formality, not a mandatory necessary step for amicably resolving the dispute, a goal that section 13(4) is intended to yield. He should therefore not be left to benefit from it. In the light of these peculiar circumstances, I am of the strong view that the provision of section 13(4) was offended and I accordingly nullify, quash and set aside the proceedings, judgment and decree of the trial tribunal. The appellant is Page 8 of 9
advised, if he is still interested, to reinstate the matter after duly complying with section 13(4) of the Land Dispute Courts Act. Considering the manner in which the point disposing of this appeal was raised, there will be no costs. Order accordingly. DATED and DELIVERED at DODOMA, this 5 th day of June 2026. Page 9 of 9