anatory nkambi vs eliya mlyomi and three others 2022 tzhc 14667 18 november 2022

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF DODOMA AT DODOMA LAND APPEAL NO. 19 OF 2022 ANATORY NKAMBI.......................................................APPELLANT VERSUS ELIYA MLYOMI ESTER CHISUMUNI ....................................... RESPONDENTS SEZARI CHAPA MELEA MLYOMI ---- J (Appeal from the Judgment of Dodoma District Land and Housing Tribunal) (R. S. Mandari - Chairman) Dated 10th August, 2020 In Land Appeal No. 225 of 2019 JUDGMENT 28th September & 18th November,2022 MDEMU, J:. This is a second appeal. Briefly in Mpinga Ward Tribunal in Land Case No. 10 of 2019, the Appellant filed a Land dispute against the Respondents who, according to him, trespassed into his grandfather's land. The Respondents denied the claim stating that, the suit land belongs to them and they own the same since 1970,1971 and 1976 respectively. The trial tribunal decided in favour of the Respondents, the decision which was upheld on appeal by the District Land and Housing Tribunal. The Appellant was aggrieved by that decision hence, this appeal on the following grounds: 1. That, the District Land and Housing Tribunal erred in law and in fact for failure to hold that the Ward Tribunal failed to ascertain its jurisdiction before entertaining the matter. 2. That, the District Land and Housing Tribunal erred in law and in fact for failure to hold that it was wrong for the Ward Tribunal to entertain the matter while quorum was improper. 3. That, the District Land and Housing Tribunal erred in law and in fact for deciding in favour of the Respondents by basing on weak and contradictory Respondents' evidence and ignoring the Appellant's strong evidence. On 28th of September, 2022 when this appeal was scheduled for hearing, the Appellant was represented by Mr. Kesanta learned Advocate whereas the Respondents appeared in person. 2 Mr. Kesanta submitted among other things on the first ground of appeal that, section 15 of the Land Courts Disputes Act, Cap. 216 requires the Tribunal to determine disputes whose property value is not more than 3,000,000/=. He also cited the case of Meneja, Kiwanda cha Saruji Wazo vs. Hermelinda Joseph Bikongoro, Land Appeal No. 10/2020 (unreported) and Yanga Mhongelo vs. Buzurizuri Gassoni and 3 Others, Land Appeal No. 70 of 2015 (unreported) to bolster his argument. He said that, the trial Tribunal didn't ascertain first if it had jurisdiction to determine the matter. It was his submissions further that, the tribunal had to do it even when parties never pleaded. On the second ground of appeal, his complaint was about coram. He argued that, section 11 of Cap. 216 requires the coram not to be less than 3 but not more than 8, gender members inclusive. He argued that, throughout the proceedings, there is nowhere gender of members was indicated. In his view, this is fatal as observed in the case of Tryphone Yohana vs. Issa Ndyetabula, Land Appeal No. 40 of 2021(unreported). In the third ground of appeal, he submitted that, evidence of the Appellant was strong stating that, he is the administrator of the 3 estate of the deceased, a fact which was not disputed. The Appellant and other witnesses stated further that, the Appellant's grandfather was using the area as pasture's land. He argued further that, even the Respondents' witness one Emily Matimbi stated the suit land to belong to the Appellant's grandfather (Mzee Nkambi). On the other part, his argument was that, there is no witness besides the Respondents who witnessed the Respondents clearing that bush to be arable. Furthermore, he argued that the two tribunal did not state reasons for not trusting the evidence of the Appellant. He therefore, prayed the appeal be allowed with costs. In reply, the Respondents submitted that, the trial tribunal was properly constituted, women inclusive. In the 1st Respondent's view, the names Sara and Rosemary prove that women were present. He said that, the Ward Tribunal is located in their village and they are supposed to file land disputes in it. They argued further that, they cleared the bush while the deceased Nkambi was still alive and continued using in presence of Mzee Nkambi till when he died in 1986. They said, it was in 2019 when the Appellant claimed to be 4 his. They thus prayed the decisions of the two tribunals be affirmed by this Court. In rejoinder, Mr. Kesanta stated that, on the first day of hearing, only three members were present. Others, that is, Rosemary and Selestina were absent. Therefore, the tribunal had only three members. He thus reiterated his previous submissions that, the matter be remitted to the trial tribunal. I have considered the parties' submissions, records of both the Ward and District Land and Housing Tribunals as well as applicable laws. I will determine ground three of appeal following the irregularity noted in the proceedings of the two lower tribunals on evidence regarding the issue of locus standi of the Appellant. The trial tribunal's record particularly, the proceeding dated 31st July, 2019 shows that, the Appellant instituted the case as administrator of the estate of his late grandfather one Nkambi. It is quoted hereunder for easy reference: - MAELEZO YA MDAIKWA KIFUPI. Watajwa hapo juu ninawadai eneo ietu la shamba lenye ukubwa wa heka 20 ...Mimi kama msimamizi wa mirathi wa ukoo wa Nkambi, nimeamua kudai eneo hiio la shamba kwa niaba ya familia nzima. (Emphasis is mine) 5 In the evidence adduced, there is no proof that the Appellant was appointed as an administrator by the Court in any probate Cause. Furthermore, the records of both trial tribunal and the first appellate Tribunal show that, he instituted the case on his personal capacity. There is therefore variance on the evidence between the complaint filed and the evidence. This has not ascertained locus standi on the side of the Appellant. In Registered Trustee of SOS Children's Villages Tanzania vs. Igenge Charles & 9 Others, Civil Application No.426/08 of 2018 (unreported) the Court observed that, locus standi is a jurisdiction issue requiring a person bringing an action in court to have rights or interest breached or interfered. Specific on a person bringing an action in respect of the deceased estate, the Court of Appeal had the following observation as seen at pages 10 through 11 of the ruling: In the light of what was specifically pleaded by the 1st respondent, the shamba and the subject matter in dispute belonged to his /ate father the late Michael Msuma who died in 1994. According to the certificate of death No. 00144710 issued by the Registrar of Births and Deaths, Nyamagana District, and the 1st respondent was appointed 6 as the administrator of the estate of his late father by the Primary Court of Nyamagana. A follow-up question is whether the 1st respondent had locus standi to commence a suit against the 2nd to lCfh respondents. In other words, did he have the capacity to commence litigation in his own name and capacity against the 2nd to lCfh respondents over the land which belonged to his /ate father. Our answer is in the negative. We are fortified in that regard due to what was pleaded by the 1st respondent that, the land in dispute belongs to the late Michael Msuma considering that, the record is silent if that land was eventually distributed to heirs including the 1st respondent given his appointment as the administrator. In this regard, before the tribunal, the 1st respondent had not showed that his right or interest has been breached for him to sue the 1st to lffh respondents in his own name, instead, the 1st respondent being an administrator ought to have sued as a personal and legal representative of his late father which was not the case....... 7 Given the above position, before the Appellant was to file the dispute as an administrator of the deceased estate, he would have demonstrated by way of evidence to be the administrator of the estate. This was not done. What went wrong further is the evidence which clearly indicated to have pursued the land in his personal capacity. This mixed grill is uncalled for. As observed in Registered Trustee of SOS Children's Villages Tanzania vs Igenge Charles & 9 Others (supra), the remedy available is to nullify proceedings and judgments in both tribunals, as I hereby do. If the Appellant herein so wishes, may commence a land dispute in a tribunal of competent jurisdiction upon proof that, he is an administrator of the estate of the late Nkambi. In event the estate was distributed to heirs, the Appellant inclusive, then may pursue the portion distributed to him in his personal capacity. Since this point alone suffices to disposes of the whole appeal, the other grounds of appeal are not going for deliberation. I make no order as to costs. It is so ordered. Gerson J-Tidemu JUDGE 18/11/2022 DATED at D his 18th day of November, 2022 Gerson J. Mdemu JUDGE 18/11/2022 9