Philbert Mahenda and Another vs Y.P. Investment (Land Appeal No. 72 of 2019) [2026] TZHC 2709 (22 May 2026)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 72 OF 2019 PHILBERT MAHENDA............................. .............................. 1ST APPELLANT FAUSTIN MASEBU ............................................................... 2ND APPELLANT VERSUS Y.P. INVESTMENT ......................................... ................ ............ RESPONDENT JUDGMENT 21/5/2026 & 22/5/2026 ROBERT, J: This appeal originates from the decision of the District Land and Housing Tribunal for Mwanza in Land Application No. 77 of 2015. The matter has had a lengthy procedural history. Following determination of the appeal by this Court, the matter proceeded to the Court of Appeal of Tanzania in Civil Appeal No. 231 of 2024. The Court of Appeal subsequently nullified the proceedings and ju dgment of this Court and remitted the matter back with directions that the parties be properly heard on all contentious issues arising in the appeal. Pursuant to the remittal order, this Court undertook reconstruction of the missing documentary exhibits tendered before the District Land and 2 Housing Tribunal and resolved various issues relating to the said documentary exhibits. Following completion of that process, the appeal was fixed for hearing. When the matter came up on 21st May, 2026, learned counsel for the Appellants , Steven Kitale, sought leave to withdraw Grounds Nos. 1, 2, 3, 4 and 6 appearing in the original memorandum of appeal and further sought leave to introduce two additional grounds of appeal. The application was not opposed and leave was accordingly granted. Consequently, the appeal proceeded on Ground No. 5 of the original memorandum together with the following additional grounds: 1. That the Honourable Chairman erred in law and in fact by failing to evaluate, address or determine the Appellants’ counterclaim. 2. That the trial Honourable Chairman erred in law and in fact by treating Certificate of Title No. 22703 as conclusive proof of ownership. However, at the commencement of the hearing, learned counsel for the Respondent , Faustin Malongo, expressly conceded the first additional ground of appeal. Counsel submitted that the District Land and Housing Tribunal failed to determine the Appellants’ counterclaim and that such 3 omission constituted an error warranting intervention by this Court. Counsel further submitted that the proper remedy would be to set aside the judgment and decree of the Tribunal and direct preparation of a fresh judgment determining both the main claim and the counterclaim. Learned counsel for the Appellants agreed entirely with that position and urged the Court to allow the appeal accordingly. I have carefully examined the record of the District Land and Housing Tribunal together with the submissions of learned counsel. The law is settled that a counterclaim constitutes an independent and substantive claim which must be considered and determined by a trial court whenever it is properly pleaded and placed before the court for adjudication. A counterclaim is not a mere defe nce. It creates a separate cause of action in favour of the defendant and imposes a corresponding duty upon the court to pronounce itself on the issues arising therefrom. A judgment which determines only the principal claim while remaining completely silent on a properly pleaded counterclaim cannot be said to have conclusively determined the dispute between the parties. Having scrutinized the impugned judgment, I am satisfied that the Tribunal did not evaluate, analyse or determine the counterclaim lodged 4 by the Appellants. The judgment is entirely silent on that aspect of the dispute notwithstanding the fact that the Appellants sought substantive reliefs through their counterclaim. The omission was not a minor irregularity. It went to the heart of the adjudicative process because it left unresolved a substantive claim placed before the Tribunal for determination. It is a cardinal principle of adjudication that courts and tribunals must determine all material issues submitted for their decision. Failure to do so amounts to a failure to exercise jurisdiction vested in the court and invariably renders the resulting ju dgment defective. The Court therefore finds merit in the first additional ground of appeal. Once that conclusion is reached, the appropriate remedy must follow. Both parties have urged the Court to set aside the impugned judgment and decree and direct preparation of a fresh judgment dealing comprehensively with both the main claim and the counterclaim. I agree. The omission complained of is such that it affects the integrity of the entire judgment. Since the counterclaim was never considered, this Court would be deprived of the benefit of the Tribunal’s findings and reasoning 5 on that substantive aspect of the dispute. It would therefore be inappropriate for this Court to proceed to determine the remaining grounds of appeal, including the second additional ground concerning the effect of Certificate of Title No. 22703. Any discu ssion of that issue at this stage would be academic and potentially prejudicial to subsequent determination of the dispute after a proper adjudication of all issues. Accordingly, the interests of justice require that the impugned judgment and decree be set aside. For the foregoing reasons, the appeal succeeds. Accordingly, the Court makes the following orders: 1. The appeal is hereby allowed. 2. The judgment and decree of the District Land and Housing Tribunal for Mwanza in Land Application No. 77 of 2015 are hereby set aside in their entirety. 3. The record is remitted to the District Land and Housing Tribunal with a direction that a fresh judgment be prepared and delivered after proper consideration and determination of both the main application; and the Appellants’ counterclaim. 6 4. In view of the Respondent’s concession of the successful ground of appeal, each party shall bear its own costs of this appeal. It is so ordered. K.N. ROBERT JUDGE 22 . 5 . 2026