PETER NDERIA MUSHI v THE MINISTER FOR LAND HOUSING AND URBAN DEVELOPMENT 1984 TLR 64 (CA)

PETER NDERIA MUSHI v THE MINISTER FOR LAND HOUSING AND URBAN DEVELOPMENT 1984 TLR 64 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Mustafa JJA, Makame JJA and Kisanga JJA

October 1, 1984

CIVIL APPEAL 10 OF 1984

Flynote

Land Law - Customary leasehold - Lease surrendered before application of

Enfranchisement Act - Whether land enfranchised - Customary Leaseholds

(Enfranchisement) Act No. 47 of 1968. I

1984 TLR p65

A Civil Practice and Procedure - Jurisdiction - Customary leasehold - Customary

Land Tribunal and Minister for Lands - Whether they have jurisdiction over land

formerly held under a customary leasehold but ceased to be so held before application

of Enfranchisement Act.

B Civil Practice and Procedure - Appeal - Customary land Tribunal - Appeal to

Minister - Additional evidence - Whether party has right to cross-examine witnesses

against him.

C Civil Practice and Procedure - Appeal - Customary Land Tribunal - Appeal to

Minister - Parties - Whether persons not parties to original proceedings can be joined.

Civil Practice and Procedure - Appeal - Customary Land Tribunal - Appeal to

Minister - Decision does not identify persons entitled to award - Whether proper.

D Civil Practice and Procedure - Appeal - Customary Land Tribunal - Appeal to

Minister - Award given to person not party to proceedings - Whether proper.

-Headnote

The appellant's deceased father had granted a customary lease over land situated at

Kibosho to the E respondent's deceased father. Before the Customary Leaseholds

(Enfranchisement) Act was applied to Kilimanjaro Region in October 1969, the lease

was surrendered by the respondent's father and the appellant's father bequeathed it to

the appellant. When the appellant moved into F possession the respondent objected

and lodged an unsuccessful complaint in the Primary court. The court found the

appellant to be the lawful owner. The respondent then, assisted by the police, evicted

a number of people who were occupying part of the land. One of them, Thomas Lesio,

unsuccessfully sued him in the Kilimanjaro Customary Law Tribunal which ruled that

the matter was G res judicata! An appeal to the Minister for Lands was preferred.

The Minister found that the land had been under a customary lease for a long time,

and that because the appellant had willingly accepted the people onto the land there

were customary leases held by all of them until the day they were evicted. He further

found that the land thus held under customary leases had been H enfranchised by

the Customary Leaseholds (Enfranchisement) Act 1969 and therefore the appellant

could not evict those in occupation. The appellant's application for order of certiorari

to quash the Minister's decision was unsuccessful.

I Held: (i) The disputed land is not one to which the Customary Leaseholds

(Enfranchisement) Act applies and therefore neither the

1984 TLR p66

KISANGA JA

Kilimanjaro Customary Land Tribunal nor Minister had jurisdiction to adjudicate

upon the dispute A relating to such land;

(ii) when additional evidence is taken in an appeal to a Minister, the party

against whom the appeal is preferred should be afforded an opportunity to crossexamine

those who testify against his interest and if necessary, be allowed to call his

own additional witnesses; B

(iii) it is clearly wrong to join on appeal a person who was not a party to the

trial;

(vi) it is a serious error to award title and possession of land to unidentified

persons; such award is practically meaningless; a proper decision must clearly identify

the parties whose rights and C obligations have been determined in the particular

suit.

Case Information

Appeal allowed.

No cases referred to. D

T.S. Kinabo and F. Lyasenga for the appellant

M.H.P. Ntingele for the respondent.

[zJDz]Judgment

Kisanga, J.A.: read the following considered judgment of the Court: This appeal arises

from the E ruling of the High Court at Arusha (Mroso, J.) refusing to grant an

application for certiorari to set aside the decision of the Minister for Lands, Housing

and Urban Development in a dispute over a F piece of land situated at Kibosho in

Moshi District. The background to this matter may be summarised very briefly as

follows.

On 26th January, 1956, one Nderia s/o Nambuo granted a customary lease over the

disputed land to one Sindato s/o Obo. The agreement for such lease which was in

writing was produced in evidence G and forms part of the record. Sindato died but it

is not clear from the evidence when exactly. However, upon Sindato's death Nderia

stated that the land was returned to him by Sindato's personal representative, one

Bernard. Then there was ample evidence that in 1969 Nderia devised the land to his

son Peter, the present appellant, and that the appellant moved into possession. H

Sindato's sons, Augustine and Bernard, opposed the appellant's entry and lodged a

complaint in court. As a result the appellant was charged with forcible entry vide

Kiwoso Primary Court Criminal Case No. 190/1969. However, the court, accepting

the evidence as summarised above, acquitted the I appellant on the charge because

he had entered

1984 TLR p67

KISANGA JA

A on the land which belonged to himself. The court then went to observe that

Sindato's son might enter into an agreement with the appellant for a customary lease

upon the usual payment of the customary dues called "masiro" provided the appellant

was agreeable, but otherwise the appellant B was entitled to have his land and to

compensate Sindato's son for the coffee which Sindato had grown on that land. None

of Sindato's sons ever approached the appellant for any such customary lease, and the

appellant has continued to be in occupation of the land.

In another dimension, following the acquittal on the criminal charge, the appellant

brought a suit for C malicious prosecution against Augustine and Bernard who were

the complainants in the criminal case. He got judgment and was awarded damages

against Bernard alone. Bernard did not pay the damages ordered, and so the appellant

applied for execution of judgment to attach the coffee trees D on the disputed land

which trees belonged to Bernard, by virtue of his having inherited them from his

father, and for which the appellant had not yet paid compensation. It would seem

that after the necessary procedures for a public auction were complied with no one

turned up to bid for the E purchase of the coffee trees, and so the appellant, on

application, was permitted to buy them in around April 1970. Then it would appear

that on 18th May, 1970, the appellant, with the assistance of the police evicted a

number of people, including one Thomas Lesio, who were occupying part of the

disputed land, and in 1976 the said Thomas Lesio sued him before the Kilimanjaro

Customary F Land Tribunal for wrongful eviction from such land. The said Tribunal,

after recording the evidence declined to adjudicate on the matter on the ground that

the matter was "res judicata" in that the appellant was lawfully in occupation of the

disputed land pursuant to a court order. Thomas Lesio G and four others who were

not identified appealed to the Minister for Lands, Housing and Urban Development.

The Minister found that the land in question had been under customary lease for a

long time, and that as a result the appellant willingly accepted Thomas Lesio and four

others as his H tenants under the customary lease holding until when he evicted

them on 18th May, 1970. He further found that the land, thus held under customary

lease, was enfranchised by the Customary Leaseholds (Enfranchisement) Act No. 47

of 1968 which came into operation in Kilimanjaro Region on 10th October, 1969, so

that the appellant could no longer regard Thomas Lesio and four others as I his

tenants and evict them as he purported to do on 18th May, 1970. He accordingly

reversed the decision of the Kilimanjaro Customary

1984 TLR p68

KISANGA JA

Land Tribunal and awarded title and possession of the disputed land to Thomas Lesio

and four A others. Dissatisfied with that decision the appellant unsuccessfully

applied to the High Court for an order of certiorari, and hence this appeal.

In the High Court the appellant/applicant was represented by Mr. Kinabo but in this

Court he was represented by Mr. Lyasenga while the respondent Republic was

represented by Mr. Mtingele. Mr. B Lyasenga filed a total of fifteen grounds of

complaint, but we think that the whole appeal turns mainly on the issue of

jurisdiction, although counsel did not raise it squarely. It would seem plain that a

Customary Land Tribunal will have jurisdiction under the Customary Leaseholds C

(Enfranchisement) Act if it is shown that the land forming the subject matter of the

claim was held under customary land tenure at the time when the Act came into

operation. If that test is satisfied then the proceedings before the Tribunal respecting

such a matter and any appeal from there to the D Minister would be proper. If,

however, the test is not satisfied then the trial proceedings before such Tribunal and

any appeal from there to the Minister would be null and void for want of jurisdiction.

It is along these lines that we propose to approach this matter.

The Minister when giving his decision stated that this was a clear case of nyarubanja.

However, it E becomes necessary for the court to be certain on this point because it

goes to the issue of jurisdiction. For, when the Tribunal or the Minister assumes

jurisdiction they should make sure that they do so on true and valid grounds. The

evidence shows that the only customary lease created on F the land in question

during the relevant period is that which Nderia, the appellant's father, granted to

Sindato s/o Obo which lease was evidenced in writing on 26th January, 1956. Nderia

in his evidence told the Tribunal that upon Sindato's death the land was returned to

him by Sindato's son, G one Bernard, and there was overwhelming evidence that

after such return of the land, Nderia donated it to his son, the appellant, some time in

1969; the appellant duly occupied the land and he has remained in occupation since.

There was no evidence whatsoever that either Nderia or his son, the appellant,

subsequently granted anyone else any lease on this land. Indeed after the criminal

case in which the appellant was H acquitted on the charge of forcible entry, the

court observed that if the appellant was agreeable, he might grant a customary lease

to Sindato's son upon payment of the customary dues called "masiro", but there is no

evidence that he has granted any such tenancy to Sindato's son or anyone I at all.

1984 TLR p69

KISANGA JA

A There is yet another matter which seems to warrant consideration and that is this.

It is not quite clear how Thomas Lesio is connected with the land in question. For, as

has already been stated, the only lease that was created on the disputed land during

the relevant period was the one that Nderia B granted to Sindato. But Thomas Lesio

is not the son of Sindato. On the evidence Sindato's sons are Bernard, Lesiani, Henri,

Agustin and Mathias. Thomas is only shown to be Sindato's nephew, but there is no

evidence to suggest that such relationship enabled Thomas to claim, through

inheritance, any tenancy granted to Sindato.

C And finally, there was evidence that when the land was leased to Sindato there

was an obligation on the part of the leasee to pay customary dues known as "masiro"

to the lessor. But there is no indication at all on the evidence that Thomas Lesio ever

paid any such customary dues to anyone. D Indeed all along Thomas Lesio has

consistently denied that there was any customary lease over the land in question. He

makes it very clear that his claim is based on the allegation that the land descended to

him through inheritance from his forefathers who held it in their own right and not

under customary lease.

E The Minister was therefore wrong in finding that the land in question was

enfranchised by the Customary Leaseholds (Enfranchisement) Act, because when the

Act came into operation in Kilimanjaro Region on 10th October, 1969, there was no

leasehold on the said land which the Act could enfranchise. As was shown earlier, the

customary lease over this land terminated when F Bernard returned that land to

Nderia and Nderia devised it to the appellant. This must have been before 10th

October, 1969, because the judgment in the criminal case in which the appellant was

G acquitted on the charge of forcible entry onto this very land after it was thus

devised to him is dated 9th June, 1969. Thus it becomes clear that the disputed land is

not one to which the Customary Leaseholds (Enfranchisement) Act applies, and for

that reason neither the Kilimanjaro Customary Land Tribunal nor the Minister had

jurisdiction to adjudicate upon the dispute relating to such land.

H That, in our view, was sufficient to dispose of this appeal, but we consider it

appropriate to refer at least to some of the grounds of appeal raised by counsel for the

appellant. The Minister in dealing with the appeal, directed the taking of additional

evidence which he duly took into account in I arriving at his decision. But the

record further shows that such additional evidence was taken in the absence of the

appellant, and Mr. Lyasenga submitted that this offended

1984 TLR p70

against the rules of natural justice. We think that this complaint is justified. The

appellant ought to A have been afforded the opportunity to cross examine those who

testified against his interest and, if necessary, to call his own additional witnesses.

Again it is noted that at the trial before the Tribunal there was only one complainant,

namely B Thomas Lesio. But on appeal before the Minister there were five

complainants, namely Thomas Lesio and four others who were not identified, and the

Minister in his judgment accordingly awarded the title to Thomas Lesio and four

others. This was obviously irregular for two main reasons. First, it was clearly wrong

to join on appeal a person who was not a party at the trial. Secondly, it was a C

serious error to award title and possession of the land to the four unidentified persons.

Such award was practically meaningless. A proper decision must clearly identify the

parties whose rights and obligations have been determined in the particular suit. D

Again the Minister in his decision ordered one Patris, the appellant's brother, to give

vacant possession to Thomas Lesio and four others. But Patris was never a party at the

trial. So that to the extent that the Minister's decision relates to Patris, that decision

was equally objectionable on the same grounds as those given in the preceding

paragraph. E

For all these reasons we are satisfied that the Minister's decision was a nullity, and

that the learned High Court Judge ought to have held so. The appeal therefore

succeeds. We accordingly grant the order for certiorari and set aside the Minister's

decision. F

Appeal allowed.

1984 TLR p70

G