20130506 TZHC Mbeya

\ IN THE HIGH COURT OF TANZANIA LAND DIVISION OF THE HIGH COURT ATMBEYA LAND CASE APPEAL NO.9 OF 2007 ANDREW MWASOMOLA ,.................APPELLANT VERSUS EPHRAIM AGRIPA............S..I....S.I..RESPONDENT (From the Decision of the District Land and Housing Tribunal at Mbeya Land Case No.43 of 2005) JUDGMENT 23/3/2009 & 6/3/2013 S.M. RUMANYIKA, J. In this appeal, Andrew Mwasomola (the Appellant) Challenges the Judgment and decree meted on him by the District Land and Housing Tribunal Mbeya (DLHT) on 7/3/2007, In favour of Ephraim Agripa (the Respondent). It is over a parcel of Land estimated to be an acre. Located at Mpuguti village, Kyela District valued at Shs.150,000/= (As it stood on 26/7/2005) when the Appellant instituted the suit. The Appellant appears in person, while the Respondent is represented by Mr. Mkumbe learned Advocate. 1 S ) In essence, one had four(4) grounds of appeal. Which again boil down to only two of them that:- The Learned Chairman of the DLHT erred in law in that the failed to hold that being a clan land, he disputed land could not be sold without consent of the clan members. The learned Chairman of the DLHT erred in law and fact by failing to accept the fact that it was not until on expirely of 9 years, when the members of clan became aware of the purported sale. C) The Learned Chairman of the DLHT erred in law and fact by acceptingla forged and therefore an unauthentic copy of sale agreement. The appeal was argued by way of written submissions. The issues thus are two:- whether it was a clan land and whether the disputed land validly and legally sold to the late Agripa Amasage. Father of the Rëondent. -- The show that it, used to_bg4n.gto the deceased. AppeUant's father only to learn later, tFiar without knowledge and —COffsent by them, Mwasornoia his little-brother, had sold the land to the Respondent's father in the previous 9 (nine) years. Now the Appellant wanted it back from the Respondent. Survivor of the said Agripa Amasage. 2 1. .4 F' court could mainly be twofold. Telling if really he sold it as a clan me Even if the purported vendor was dead or away on Safari overseas, which fact is not born out in the evidence, yet still his evidence needed to be otherwise, entertained and recorded. I just cannot see that if any thing, the disputed land was sold to the Respondent. Ground No. 3 of the appeal is successful. There was also a proposal by the Appellant that the Respondent lacked the locus standi. That one should have instituted a representative suit. Much as he had no letters of administration. I do not think that proposal is tenable at law. Because, I know no law which makes court leave for a representative suit, substitute of the letters of administration that are issuable in Probate and Administration proceedings. Iese are two distinct legal steps. flnay I ''ish to to the recd aaabeo: what transpiéd in the DLHI furd's consecutively le 15/2/2006 14/3/2006, 28/3/2006 and 27/4/2006. Infact both parties are recorded to have appeared before the trial learned Chair for hearing of the matter. But for no reasons apparent on the record (perhaps known to the tribunal itself) matter was not heard. Indeed this trend is out of place in so far as timely justice is concerned. It is trite law 4 that every matter scheduled for hearing can be adjourned only where strong and judicious reasons are assigned. In which case only a reasonable tribunal, having recorded the same, would grant adjournment in the circumstances. But the lower tribunal recorded no reasons for such several and repeated adjournments. In the end I will allow the appeal with cost as hereby do. The decision of the DLHT and orders there of are quashed and set aside respectively. R/A explained. Sgd: S.M. Rumanyika JUDGE 06/3/20 13 Date: 6/5/2013 Coram: Hon. A. M. Lyamuya - DR For Appellant 1 Respondent Present C/C: M. Kimweri Court: Judgment delivered. Right of appeal explained. r%T1ITT 11IT I r L 06/05/2013.--.. I certify that this is true cop'y f-oritnUg. DISTRICT REJGIS1RAR \ O6105P2013 61