Damian Makenge

UNITED REPUBLIC OF TANZANIA JUDICIARY HIGH COURT OF TANZANIA BUKOBA SUB REGISTRY AT BUKOBA MISC. LAND APPEAL NO. 36 OF 2023 (Arising from Karagwe District Land & Housing Tribunal IN Miscellaneous Application No, 19 of 2019 Arising from Land Appeal No. 10 of2019 at Karagwe District Land and Housing Tribunal) DAMIAN MAKENGE....... ............ ......... APPELLANT VERSUS ATHANAZI MAKENGE ................. ................ ............RESPONDENT RULING OF THE COURT Date of last Order: 01/03/2024 Date of Ruling: 01/03/2024 BEFORE: G.P, MALATA, J The parties herein appeared unrepresented. However, having carefully gone through the trial tribunal's record and first appellant tribunal, this court noted the proceedings of the Ward Tribunal and District Land and Housing Tribunal to be nullity. In brief the proceedings readings read; The deceased Makenge Luhima passed away 1948. The said deceased married to two wives who also passed away. During his life, the Said Makenge Luhima and wives got blessed with total of six children. In their life time they acquired different properties including land i measuring about 10 acres. The deceased' properties were distributed to the heirs save for the land. That the ten [10] acres remained under custodianship of Damian Makenge, the son of the late Makenge Luhima. That since the demise of all parents, the surviving children who are also heirs did neither customarily nor through probate case distributed the deceased's estate in particular the land in dispute. In 2018, one of the heirs one Athanas Makenge, the son of deceased, the respondent herein demanded for distributes of the landed properties forming party of the estate of the late Makenge Luhima which was under custodianship of Damian Makenge, the appellant herein. Damian Makenge resisted and claimed that the land belongs to him as he was given by the deceased, the late father of the parties herein. The resistance trigged for family misunderstanding and land dispute among the heirs fighting against the appellant who ganged with his family to deny other inheritance rights on the land. Many attempts to settle it yielded futile. The respondent herein initiated land dispute at Ward Tribunal for Bugara Ward which went through the DLHT, thence the present appeal before this court. When this matter came for hearing, on 01/03/2024 the parties appeared unrepresented. This court inquired from the parties on the source of dispute and 2 what transpired. Both parties confirmed that, the land in dispute belonged to the deceased one Makenge Luhima and his beloved deceased wives. That deceased land had never been distributed to the heirs. However, the appellant claimed that the land was allocated to him by the late Makenge Luhima but admitted that, the rest of children were allocated nothing. He did not produce any document proving such fact before the tribunal that the late Makenge Luhima allocated all land to him in exclusion to the other five children. That, the surviving five children of the deceased are fighting for the said land against Damian Makenge who claimed to have been allocated all the before the demise of the late Makenge Luhima. The afore stated facts, confirmed beyond sane of doubt that, the land belonged to the deceased one Makenge Luhima had never been distributed to the heirs. There was no probate administration of the estate of the late Makenge Luhima which resulted into distribution of the land in question to the heirs. Additionally, this court through trial tribunal record noted that, at the Ward Tribunal of Bugara there was just tabling of unsworn statements of the family members who went to testify for or against the dispute. The unsworn statements were taken as sworn evidence relied by the trial tribunal in making decision. 3 It is evident that, what transpired before Bugara Ward Tribunal was not evidence but mere statement. The same was taken in contravention of section 13 (1) of the Ward Tribunal Act, Cap.206 R.E.2002 which provides that; "On the date specified in the summons the parties shall, subject to sub­ section (3) appear in person before the Tribunal, give their evidence and answer ail questions put to them by any member of the Tribunal/' Further, section 13 (3) of the same Act provides; "Where the complainant or the person complained against is a child below eighteen years of age, or is a person who for any sufficient cause cannot adequately put his case or defend himself, that person may appear before the Tribunal together with his parent, guardian, relative or friend who may, subject to the procedure adopted by the Tribunal, assist him in the examination or cross examination of witnesses or the making of submissions before the Tribunal." The word used in section 13 referred herein above is 'give their evidence"and "examination or cross examination of witnesses". In my view, courts and tribunals decide cased based on evidence and law. The evidence comes from witnesses who gives their testimonies after getting sworn or affirmed to tell the truth and not lies. This being a Tribunal of which its decision is appealable up to the court of appeal, it cannot be said, it decides cases based on unsworn/unaffirmed statements or mere statement of which the maker is not even 4 made accountable for it. Such statement cannot in law be said to be evidence but mere statement like the one given by anybody in town including bibulous men at local brew or anywhere. Evidence used for court/tribunal makes the author accountable to it, as it is given under oath as opposed to unsworn statement. Additionally, should it be revealed that, such witness testified lies, then the law will take care of him through criminally. This court is also aware of section 15 (1), (2) and (3) of the Ward Tribunal Act which reads; (1) The Tribunal shall not be bound by any rules of evidence or procedure applicable to any court. (2) A Tribunal shall, subject to the provisions of this Act, regulate its own procedure. Interpreting section 13 and 15 of the Ward Tribunal Act, much as section 15 of the Act provides that the tribunal shall not be bound by rules of evidence still when it comes to testifying, in my view the aspect does not fall on the exception of not being bound. The rationale behind it is that, courts and tribunals can be discharging such sensitive constitutional role of dispensing justice relying on a mere statement like that of the street. There must be a difference in terms of considerations, otherwise justice will highly be jeopardized and people will not see the difference the court business with other matter taking in the street. 5 Courts and tribunals while discharging the mandates under Article 107A (1) of the Constitutional of the United Republic of Tanzania, 1977 performs the sacred and sensitive functions for health of the people and national stability of United Republic of Tanzania. This is really gathered from wording of the above cited article as reproduced hereunder; "Mamlaka yenye kauii ya mwisho ya utoaji haki katika Jamhuriya Muungano itakuwa ni Mahakama." The above Constitutional function cannot be achieved by just relying on mere statement but cogent evidence satisfying the court/tribunal that a particular party has right. In the case of Catholic Universities of Health and Allied science (CUHAS) vs Epiphamia Mkunde Athanase, Civil Case No. 257 of 2020, the court of appeal had these to state; "The Court of appeal has principled that, the omission to testify on oath/affirmation vitiates the proceedings because it prejudiced to the parties' case." In another case of Gabriel Boniface Nkakatisi vs The Board of Trustee of the National Social Security Fund [NSSF], Civil Appeal No. 237 of 2021, CAT unreported what the Court stated that; "The consequence of not administering Oaths or affirmation accepted before giving evidence vitiates the proceeding and prejudices the parties case. 6 We hereby invoke the powers bestowed on us in terms of section 4 (2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2019 and nullify the proceedings, quash the CMA and High Court decisions, set aside the CMA's award, and the High Court order which revised the award and no order as to costs." Having observed the said booboos, this court invited the parties to address on the same however, since they are none lawyers, they were unable to contribute anything fruitful. This Court having noted the above legal position, as stated In the case of Catholic Universities of Health and Allied Science (CUHAS) vs Epiphania Mkunde Athanase, and Gabriel Boniface Nkakatisi vs The Board of Trustee of the National Social Security Fund [NSSF], it is with no malingering of doubt that; the Bugara Ward decision was arrived through unsworn testimonies by the witnesses, the effect of which vitiated the proceedings and prejudiced the parties' case as stated by the court of appeal in the afore cited decisions, In view thereof, this Court hereby invoke revisional mandates under 43 1 (b) of the Land Disputes Courts Act Cap, 216 R.E. 2019 and nullify the proceeding and judgment of Bugara Ward Tribunal and Karagwe District Land and Housing Tribunal for being a nullity. Additionally, this court orders that, the heirs or family of the late Makenge Luhima assemble a family meeting and nominate a person who will apply to the Primary 7 Court for appointment as administrator of the estate of the late Makenge Luhima and administer and distribute the estate to legal heirs. Should there be any disagreement in appointing the person by the family, then they should approach the Primary Court for appointment of neutral party to administer the said estate. In the event, the proceedings and judgment of the trial tribunal and DLHT are hereby nullified. The present appeal is also dismissed. Each party to hear its own costs. IT IS SO ORDERED. DATED at BUKOBA this 1st March, 2024. 01/03/2024 RULING delivered at BUKOBA this 1st March, 2024. 8