GOI JUDGMENT

J A IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA LAND APPEAL NO. 89 OF 2023 (Originating from Land Application No. 135 of2018 ofSingida District Land and Housing Tribunal) ALLY HASSAN NGOI (on behalf of the Nkumbi Clan).................. APPELLANT VERSUS ATHUMAN MBAGHA................................... RESPONDENT JUDGMENT Date: 26.02.2025 Hassan, J.: The appellant herein, one Ally Hassan Ngoi, pained by the decision of the District Land and Housing Tribunal (DLHT) for Singida in the Land Application No. 135 of 2018, of which the respondent, one Athumani Mbagha, emerged victorious. The parties are fighting for the ownership of a sporadic plot of land estimated at about 130 acres, which is owned under customary right of occupancy. l The impugned land is located at Kitunku ward within Ikungi district. The appellant, in his application, claims the ownership of the disputed land, which was acquired by his clan after clearing the virgin land back in 1960, and he wondered to see the respondent trespassing on the same land in 2018. Whereas, on the other hand, the respondent also claims that he owns the disputed land, and thus, he has utilised the land for a long time, and even some of his relatives were buried therein, and since then, no one has interrupted his ownership. Needless to say, when the matter was filed for litigation in the trial tribunal, the respondent herein, who was also the respondent therefrom, emerged a prizewinner. Now before this court, the appellant herein is seeking redress. In his mission to meet the target, the appellant initially lodged five (5) grounds of appeal disputing the evidence relied on by the tribunal and later added two (2) more supplementary grounds of appeal for steadfastness. However, for the reason to be apparent soon, I will not dictate the first five grounds of appeal, and instead, I will introduce the last two grounds filed as supplementary grounds thus: 2 1. That the proceedings, judgmentand decree o f (tie trial tribunal are a nullity for want o f the opinion o f assessors. 2. That the proceedings o f the trial tribunalare nullity for want o fappended signature o f the chairman. During the hearing, the appellant was represented by Mr. Edward Nchimbi, learned counsel, whereas the respondent appeared himself unrepresented by counsel. At this juncture, what the court ought to determine is whether or not this appeal has merit. To begin with, the appellant counsel only decided to present the first ground of appeal, which was listed in the extra grounds of appeal. In light of this, he argued that the trial tribunal's proceedings, award, and orders were void since the assessors had inappropriately participated in their conduct. He emphasised that in accordance with section 23(2) of the Land Dispute Court Act, Cap. 2019, assessors must participate in the land tribunal's proceedings and gives their opinions. Also, under regulation 19 (2) of the Land Dispute Courts (the district land and housing tribunal) Regulation of 2019, the assessor's opinion has to 3 f be in English or Kiswahili, but it has to be in writing and read over to the parties. Further, he stressed, if the said regulation is violated, the remedy is to nullify the entire proceedings. He added that the court of appeal in Edina Adam Kibona vs. Absolom Swebe (Sheli), Civil Appeal No. 286 of 2017 (unreported), surfaced the position. In the end, to recap from the case at hand, Mr. Nchimbi contended that on 30/07/2021 the chairman adjourned the matter and ordered that the assessor's opinion be read on 07/09/2021. However, coming on that date, the record shows that the assessors' opinions were read over to the parties, and the matter was adjourned for judgment. To say the least, in spite of the fact that the chairman's verdict was that the opinions of assessors had been read over, looking at the records, it appears to the contrary; that is, the assessors'opinions were not visibly seen on the face of the records. That is to say, the opinions were neither recorded nor admitted and endorsed by the chairman (if they were written in the separate document) to form part of the records. In the circumstances, to say the least, it is clear that the aforesaid provisions of laws were overlooked by the chairman who presided over the 4 tribunal in consideration of his verdict. Notably so, the omission renders the whole proceedings, decision, and orders meted null and void; hence, the same should be nullified, quashed, and set aside. He therefore concluded that, since this ground can dispose of the matter, to proceed with other grounds is unnecessary; hence, he dropped them altogether. On the other side, the respondent, being a lay man had less word to contribute, but instead, he conceded the appellant's submission altogether. Now, the task ahead is to ascertain whether assessors were actively involved in the conduct of the trial tribunal as required in terms of section 23 (1) and (2) of the Land Disputes Courts Act, [Cap. 216 R. E. 2002], and regulation 19 (1) (2) of the Land Disputes Courts (District Land and Housing Tribunal) Regulations, 2003, which requires assessors to give their opinion, which should be recorded to be part of the proceedings. In the circumstances, looking at the record, the answer to the above question is negative, as rightly submitted by Mr. Nchimbi, learned counsel for the appellant, that, though in the deliberation of the tribunal on 30/07/2021 the chairman adjourned the matter upon the order that assessors' opinions will be read over to the parties on 07/09/2021. Now, coming on that date, the record shows that the assessors' opinions were 4 read over to the parties, and the matter was adjourned for judgment on the future date, of which it was delivered. However, in the record of proceedings, the opinions are not visible, which simply means that they were not recorded to form part of the proceedings. Moving ahead, the basic question for court determination is, what effect does such an omission bring? In my view, the answer is given from the import of sections 23 (1) and (2) of the Land Disputes Courts Act, [Cap. 216 R. E. 2002], and regulation 19 (1) (2) of the Land Disputes Courts (District Land and Housing Tribunal) Regulations, 2003, and also the decisions in Edina Adam Kibona v. Absolom Swebe (Sheli), Civil Appeal No. 286 of 2017 (unreported), and in Peter Makuri v. Michael Magwega, Civil Appeal No. 107 of 2019 (CAT) Mwanza (unreported), where the court pressed the same verdict that assessors' participation in the decision­ making, as thus: "It is a mandatory legal requirement that in adjudicating land matters before the Tribunal, the Chairman sits with aid o f assessors. The assessors sitting in, are vested with 6 mandate to participate by asking questions, giving opinion albeitin writing before the Chairman proceeds to compose decision o f the Tribunal. And all these must be reflected on record of proceedings. Besides, where the Chairman disagrees with the opinion o f the assessors, he must record reasons. In the absence on record of the opinion of assessors, it is impossible to ascertain if they did give anv opinion for consideration in composing the judgment o f the Tribunal." And the case of Emmanuel Christopher Lukumai v. Juma Omari Mrisho, Civil Appeal No. 21 of 2013, where the similar viewpoint was upheld by the court. That said, looking at the case at hand, I am in the similar view with the parties herein that the proceedings were flawed. Notably so, even if it the opinions appears to have been reflected in the judgment, without first being part of the record, it becomes weightless. 7 In the end, it goes without saying that the chairman has violated the principle buttressed in the case of Peter Makuri v. Michael Magwega; and that of Emmanuel Christopher Lukumai v. Junta Omari Mrisho and Edina Adam Kibona v. Absolom Swebe (Sheli) (all supra), where among other things, it was stressed that, assessors sitting in the tribunal are vested with the mandate to participate by asking questions and giving opinions, albeit in writing, before the chairman proceeds to compose the decision of the tribunal. And all these must be reflected on the record of proceedings. Therefore, in my considered view, failure to record each assessor's opinions in the records of proceedings before judgment was composed is a blunder that nullifies the whole proceedings. Thus, in so far as it stands, and guided by the above provisions and dispatched authorities, I hereby nullify the entire proceedings, quash the judgment, and set aside the orders handed down by the tribunal. Additionally, I order that application No. 135 of 2018 be remitted to the DLHT of Singida for retrial by another chairman with a new set of assessors. That said, I make no order as to costs since the flaw was caused by the tribunal. 8 Ordered accordingly. DATED at DODOMA this 26th day of February, 2025. JUDGE 26/02/2025 This Judgment delivered this 26th day of February, 2025 in the presence of the parties, and the matter is ordered to start afresh under the 9 THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT DODOMA LAND APPEAL NO. 000004620 OF 2024 GOILUSANA........ .................... COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS ELIA CHARLES SHALUA............................. RESPONDENT / DEFENDANT JUDGMENT HASSAN, J, In the District Land and Housing Tribunal (DLHT) for Dodoma the respondents herein sued the appellants claiming to be lawful owners of the disputed land comprising of seventeen (17) acres located at Masunkune Hamlet, Ng’anguli Village, Maluga Ward, Iramba District within Singida Region. The application was heard and decided in favour of the respondents. The Appellants being aggrieved with the said decision lodged this appeal bearing three (3) grounds of appeal for resoluteness, thus; 1. That, the trial Tribunal erred in law and fact by pronouncing the judgment in favour o f the respondents whose evidence was weak and ignored the watertight evidence o f the appellants. 2. That, the trial Tribunal erred in law and fact by lying on exhibit PI which was tented with illegalities and forgeries. 3. That, the trial Tribunal erred in law and fact by failure to consider that the suit was instituted out o f time and the applicants had no locus standi. The appeal was disposed by way of written submissions. The appellants’ written submission in support of appeal was filed by Mr. Fred Kalonga, advocate while Mr. Emmanuel F. Sululu, advocate filed the respondents* reply submission. Credit to the parties’ learned counsels who complied to the order of preference in filing their written submissions. The appellants kickstarted their submissions by arguing on the first ground of appeal that Goi Lusana, (DWl), Paulo Saida Tungu (DW2), Nkolo Lusana (DW3) and Mweji Sali Sengerema (DW4) were witnesses who testified that, the land in dispute was owned by their grandfather upon his demise. The appellants’ learned counsel submitted on the second ground of appeal that, the trial tribunal erred in law and fact by relying on exhibit PI which was tainted with illegalities and forgeries. 3 4 On the third ground of appeal, the appellants’ counsel submitted that, the trial tribunal erred in law and fact by failure to consider that, the suit was instituted out of time and the respondents had no locus standi. He submitted that the respondents testified that the appellants have been on the land in dispute since 1980 and appellants grandfather used the land and was buried on that land and their parents were also were buried on that land so instituting the case after lapse of more than forty years it is against the law. That, even Daniel Nyamizi, PW1 testified to be claiming the disputed land on behalf of his mother but he did not tender any exhibit to show he was given power of attorney to institute the case on behalf of his mother. The appellants* learned counsel finally prayed the court to allow the appeal. In Reply, the counsel for the respondent submitted against the first ground of appeal that, the trial tribunal was proper to pronounce judgment in favour of the respondents whose evidence was heavier when compared to the appellants* evidence. He cited Barelia Karangirangi Vs. Asteria Nyalwamba, Civil Appeal No. 237 of 2017 (unreported) and Hemed Said Vs. Mohamed Mbilu (1984) TLR. 113 to support his submissions. Submitting against the second ground of appeal, the learned counsel argued that, the trial tribunal’s Chairman was proper to rely on exhibit MP1” in which the appellant conceded to surrender the suit land upon completion of burial ceremony of the respondents* parent. That, the allegation that the said exhibit was tainted with illegalities and forgeries is highly disputed as there is no evidence tendered by the Appellants at the trial tribunal to prove the allegation. He argued that it is trite law that, allegations of fraud must be proved as held in Ratilal Gordhanbhai Patel Vs. Lalji Makanji (1957) E. A. 314. That, since the Appellants have not proved the alleged illegalities and forgery this ground of appeal is devoid of merit and the same deserves to be dismissed as a mere puff. In reply to the 3rd ground of appeal, the respondents only attempted the issue regarding time limit by arguing that, there is no time limitation when there is evidence that a person is an invitee to a land. That, in the instant case, the appellants’ parents were invitees to the suit land upon being welcomed by the Respondents* parents. That being the fact no matter how long they have stayed on the suit land and development made by them thereon as invitees cannot make them owners of the land in dispute. He cited Magoiga Nyankorongo M riri Vs. Chacha Moroso Saire, Civil Appeal No. 464 of 2020 where it was held that an occupier or licensee at any time cannot become an absolute owner of land based on the fact that he stayed a long time or developed it and the true owner did not claim it back until 23 years lapse. I have gone through the rival submissions by the parties. On that, as I have observed, the issue for determination is whether or not this appeal has merit. I will start my deliberation with the third ground of appeal specifically on the issue regarding locus standi to determine whether or not the respondents had locus standi to institute the land application in the trial tribunal. It should be noted at the outset that locus standi is a crucial issue and central in every proceeding, and therefore the person suing has to show that he has locus standi to sue. See the cases, Hamisi Mafume Mataula vs Denis Luwanga and Another, Civil Case No. 111 of 2007 (Unreported); Geryas Masonic Kulwa v The Returning Officer and Others [1996] TLR 320 and Lujuna Shubi Ballonzi Senior v V. Registered Trustees of Chama cha Mapinduzi [1996] TLR203. Therefore a proceeding of civil nature such as the one before me, may only be instituted and maintained by the party himself, by his agent (under the power of attorney) or by the legal representative such as administrator of estate if the owner is dead. In the case of Julius Maganga v Robert Malando, (PC) Civil Appeal No. 112 o f2004 (Unreported), Mackanja, Jheld: 'Wow a proceeding o f civil nature, such the one before me, may be instituted and maintained by a party himself, by an agent or the representative-such as administrator o f estate... The applicant's failure to apply fo r grant o f letters o f administration, has rendered him incompetent to maintain these proceedings, because he lacks the capacity to sue..." See also Lujuna Shubi Balonzi v. Registered Trustees of Chama cha Mapinduzi [1996] TLR. 203, 208 where it was held: "A principle governed by common law whereby in order to maintain proceedings successfully, a plaintiff' or an applicant must show not only that the court has power to determine the issue but also that he is entitled to bring the matter before the court. ” From the above authority, it is apparent that locus standi is one of the thresholds for instituting a suit That is, the same can affect jurisdiction of the court. If a party does not have locus standi to institute a case, then the court will lack jurisdiction to entertain the same. In the instant case, the respondents instituted the land case in the District Land and housing Tribunal for Iramba at Kiomboi arguing that they are claiming the disputed land which belonged to their late father who allegedly rented the same to the appellants’ grandfather. To determine how an estate property can be managed, the law is clear that, when the property in dispute belongs to the deceased person, the only person with locus standi to sue on behalf of the estate, is the one who has sought and obtained letters of administration of the deceased estate. See the case of Omary Yusuph (Legal Representative of the late Yusuph Haji) v. Albert Munuo, Civil Appeal No. 12 of 2018 CAT, (unreported). In the similar dictum, paragraph 6 of the Fifth Schedule to Magistrates Courts Act, Cap. 11 R. E 2109, also provides that: “An administrator may bring and defend proceedings on behalf o f the estate. ” In view of the settled position of the laws, it is apparent that, the administrator of an estate property is the one who is mandated to commence a suit on behalf of the deceased. In the case at hand, the respondents sued in their own capacity on behalf of their late fathers contrary to the legal requirement which requires only the administrator of the estate of the deceased to sue on behalf of the i deceased person. The respondents had no proof of being duly appointed as the administrators of the estate of their late fathers, the alleged owners of the suit land according to their story, thus they all lacked locus standi to prosecute the matter in the trial tribunal. That being said, in the first place since the respondents had no capacity to institute the Land Application No. 18 of 2021 before the District Land and Housing tribunal for Iramba their undertaking become futile. Therefore, considering that, this ground of appeal suffices to dispose off the appeal, thus I will reserve my time and energy in deliberating the two remaining grounds of appeal because by doing the same, it may also prejudice the merit of the application to be instituted, if any. That said, the appeal is allowed, and thus, I invoke the powers vested to this court under section 43 (1) (b) of the Land Disputes Courts Act, Cap. 216 to nullify the entire proceedings, quash the judgment and set aside the orders handed down by the trial tribunal in Land Application No. 18 of 2021. Since the application was instituted in the DLHT of Singida illegally for lack of locus standi, the same is struck out with direction that any interested party is at liberty to follow the right procedure and institute a fresh application in a court of competent jurisdiction. No order as to costs. Ordered accordingly. DATED at DODOMA this 26th day of February, 2025. S. H. Hassan JUDGE Judgment delivered this 26th day of February, 2025 in the presence of the parties. Page. 4 S. H. HASSAN JUDGE 26/02/2025 Page. 5