athumani ndibato vs yela makinda administratrix of the estate of the late rahel majulu 2023 tzhc 16561 31 march 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF SHINYANGA) AT SHINYANGA LAND APPEAL NO. 63 OF 2022 (Arising from Land Appeal No. 70 of 2020 of the Maswa District Land & Housing Tribunal) ATHUMANI NDIBATO APPELLANT VERSUS YELA MAKINDA (Administrator of the estate of the late Rehel Majulu) RESPONDENT RULING {/h & sr' March2023 MASSAM, J: This appeal arises from the decision of the District Land and Housing Tribunal for Maswa at Maswa in Land Application No. 70 of 2020 where the respondent being administratrix of the estate of the late Rahel Majulu sued the appellant in Tribunal on a claim that the appellant unlawful trespassed into the land which is belonged to the late Rehel Majulu and her late 1 husband. The tribunal determined the matter in favour of the respondent. appellant was aggrieved with the decision, on 15/09/2022 he filed six grounds of appeal which read: 1. "That, the honourable Chairman erred in law and in fact by entertaining the matter which was prosecuted by a person who had no lucas standi to prosecute the same. 2. That, the honourable chairman erred in law by failure to join the seller who is a necessary party in the dispute land instead she sued only the buyer. 3. That, the honourable chairman erred in law in entertaining the land dispute which was time barred and equally res judicata. 4. That, the honourable Chairman erred in law and in facts by holding in favour of the respondent who did not claim ownership of the suit land while the matter before the trial tribunal was incompetent. 5. That, the honourable Chairman erred in law and in fact by disregarding Exhibit D2 and D3 which were cleared for admission and no further legal justification the Chairman stated the position of the said Exhibits. 6. That, the Honourable Chairman erred in law and in fact by holding in favour of the respondent who failed to prove her case on the balance of probabilities" 2 On 13/02/2023 the matter was called for hearing, Maige Athuman Ndiabato with Power of Attorney for the appellant Athuman Ndiabato, Mr. Yela Makinda the respondent was represented by Mr. Audax Constantine Advocate. Both appellant and the counsel for the respondent argued the merit of appeal orally. It was adjourned for judgment on 6/3/2023. On preparing the judgment, I came to find out that, one Yela Makinda did enter in the proceedings without following the required procedure as the proceedings are silent as how Yela Makinda entered in the court proceedings while the pleadings show the applicant was Rahel Majulu. With thus I called the parties and I asked them to address me on the propriety of the proceedings at the DHL. On addressing that issue, Athuman Ndiabato (with Power of Attorney) prayed the court to dismiss the appeal for want of merit and the matter be ordered to start a fresh with another Chairman and new set of Assessors. Mr. Audax on his part he admitted by stating that it is true that the Application No. 70 of 2020 was filed by Rahel Majulu Lweyo though the record is not clear when the said Rahel Majulu Lweyo was died before determination of the said application. He said that one Yela Makinda 3 stepped in proceedings as administratrix of the late Rahel Majulu, the trial records does not reveal in any how the tribunal was informed on death of the said Rahel Majulu Lweyo and how the said Yale Makinda joined in proceedings as a legal representative of the late Rahel Majulu Lweyo as the law required. He noted that the record is silent on whether the tribunal gave an order to the effect that, if Yale did apply to be joined to the suit in order to represent the deceased as a legal representative. He was of the view that Yela Makinda stepped in purporting to represent the late Rahel Lweyo contrary to the law and procedure. With thus he addressed that the whole proceedings, judgment and decree in Application No. 70 of 2020 are nullity, should be quashed and set aside and the appeal before this court is incompetent and should be struck out as it came from nullity judgment, decree and proceedings. He ended by saying that, the administratrix of the estate of the late Rahel Majulu Lweyo to be advised to institute application according to the law subject to the limitation of time. Each Part to bear its own costs. 4 Considerably, the pleadings in Land Application No. 70 of 2020 show that Rahel Majulu Lweyo was an applicant suing the Respondent one Athumani Ndibato @ Nhale at the same times, the records show that the respondent one Yela Makinda (Msimamizi wa Mirathi ya Rahel Majulu Lweyo) appears since began of the proceedings, as it has been addressed by both parties when addressed the issue that nothing said how one Yale Makinda stepped in the proceedings to become representative of the deceased. As a general rule under the provision of Order XXII Rule 4 (3) of the Civil Procedure Code, Cap 33 R.E2022 which provides that; 3. -(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sale plaintiff or sale surviving plaintiff dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit In regard to this matter after the death of one Rahel Majulu Lweyo the respondent as surviving party was required to make an application in trial tribunal so as the tribunal could join her as legal representative of the deceased and form among parties in the proceeding and the proceedings 5 was supposed to reflect how the said respondent stepped in the proceedings. failure of which may lead to the suit to abate. This is the position we took in Joseph Chamba & Another vs. Ramson Mlay, Civil Appeal no. 107 of 1998 (unreported). it was said that; "We were of the considered opinion that all that the Court is required to do upon being informed of the death of a party is to adjourn and give sufficient time within which an interested person could make an application which could entitle a legal representative of the deceased to step into the shoes of the deceased" Thus, the proceedings, judgement and decree before the DLHT were a nullity for being conducted in inappropriate manner for the respondent to step in proceedings as legal representative without following the procedure, for that reasons I exercise of my revision powers under section 41 (1) of the Land Disputes Court Act Cap 216 R:E 2022, I nullify those proceedings and quash the judgment and decree of the Maswa District Land and Housing Tribunal in Land Application No. 70 of 2020. Respondent advised to follow the proper procedure to step in the proceedings. This filed be remitted to the trial tribunal to start from the proceedings dated on 6 12/10/2020 when the applicant (Rahel Majulu Lweyo) filed her case. No order for costs. It is so ordered. DATED at SHINYANGA this 31stday of March, 2023. ~~ R.B Massam JUDGE 31/03/2023 COURT: Right of appeal explained. 7