david yombayomba vs asha mwasa 2024 tzhclandd 58 29 february 2024

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC LAND APPEAL NO. 42 OF 2023 (Originating from Land Appeal No. 25 of 2022, Kibaha District Land and Housing Tribunal) DAVID YOMBAYOMBA...................................................................... APPELLANT VERSUS ASHA MWASA................................................................................... RESPONDENT JUDGMENT 2nd to 29th February, 2024 E.B. LU VAN DA, J David Yombayomba (Appellant) presented a petition of appeal challenging the decision of the first appellate Tribunal on the following grounds: One, the decision of the first appellate court (sic, tribunal) are bad in law since the tribunal had no jurisdiction to try this matter vide section 13 of the Land Disputes Courts Act (Cap 216 R. E. 2019) as amended by section 45 of the Written Laws (Miscellaneous Amendments) Act No. 3 of 2021, Two, the decision of the first appellate court (sic, tribunal) and that of the trial tribunal are bad in law since the Respondent who was the Applicant/complainant in the trial tribunal had no locus standi in Case No. 42 of 2021 before Tangani Ward Tribunal (trial tribunal). i In his submission in chief, the Appellant submitted that Land Dispute No. 42/2021 was filed before Tangani Ward Tribunal on 30/12/2021 where the Respondent herein was the complainant and the Appellant was the Respondent. He submitted that the dispute was tried in full by both parties giving evidence and on 03/03/2022 the trial tribunal pronounced its decision in favour of the Respondent. He submitted that at the time the trial tribunal entertained this matter had no jurisdiction for reason that on 11/10/2021 section 13 Cap 216 (supra) was amended by section 45 of the Written Laws (Miscellaneous Amendments) Act No. 3 of 2021, where it took away adjudication power of the trial tribunal. He submitted that since the trial tribunal adjudicated this matter into merits contrary to amended section 13, the proceedings and decision of the trial tribunal are nullity, same to that of the first appellate court (sic, tribunal). For ground number two, the Appellant submitted that the records of the trial tribunal reflect that Asha Mwasa (Respondent) claimed this land was bought by her mother and now has passed away, arguing she got into possession by inheritance from her mother. He submitted that there was no proof of letter of administration tendered in court to prove that the said land shifted ownership to the Respondent, arguing failure to prove that, she had no right to bring this case. He cited Chama cha Wafanyakazi Mahoteli & Another vs. Kaimu 2 Mrajis wa Vyama vya Wafanyakazi na Waajiri Zanzibar, Civil Appeal No. 300/2019 (2020) ZCA 1923. In her reply, the Respondent made no comment to the above legal arguments regarding the question of a jurisdiction of the trial tribunal to adjudicate this matter. Instead the Respondent submitted on matter of evidence not raised in the ground of appeal nor canvassed in the submission in chief by the Appellant. He submitted that the Appellant was asked to present, documents before the trial tribunal of new ownership, in vain, arguing this render the Appellant's locus standi too wanting. The records of the trial tribunal reveal that the Respondent herein lodged his complaint before the trial tribunal on 30/12/2021, on the same date the Secretary of the tribunal issued summons to the Appellant ordained him to appear before the trial tribunal for hearing on 06/01/2021 at 10:00 hours, without fail, else the matter will be heard and determined (ruled). Thereafter the trial tribunal embarked on a formal hearing by calling parties and their respective witnesses to adduce their evidence, tendering or receiving exhibits, witnesses were subjected to cross examination, ultimately issued a judgment in a form of uamuziwhich was delivered on 03/03/2022. In the judgment, the trial tribunal decreed on various reliefs, however made a reservation that its decision was mediation based kind of a verdict. Surprisingly accorded a party who is 3 discontented with the decision, to appeal within 45 days or else execution to proceed. To my view, the entire process entailed by the trial tribunal from issuance of summons for hearing to the stage of delivery of a decision or judgment was entirely done out of context, for reasons that the trial tribunal had no requisite adjudication jurisdiction to handle the matter in the manner depicted above. Formerly the adjudication role was conferred to the Ward Tribunal vide subsection (2) of section 13 of Cap 216 (supra), which was amended and deleted via amendment introduced by section 45(a) of the Written Laws (Miscellaneous Amendments) Act No. 3 of 2021. The said provision only retained the role of mediation which is a primary function of the ward tribunal. Under subsection (4) of section 45 Act No. 3/2021, the ward Tribunal only enjoys a power of issuing a certificate that it has failed to settle the matter amicably. The ward Tribunal has no mandate to deliver or pronounce judgment. Therefore the judgment which was delivered by the ward Tribunal was a nullity and of no legal effect. Coming to the second ground of appeal, according to a complaint lodged on 30/12/2021 by the Respondent at the mediation Tribunal, in the particulars of the claim, the Respondent pleaded as follows: 4 "Maelezo na kosa; Namiaiamikia David Yombayomba kwa kutufungia njia. Mama yangu aitwaye Siwema Abdallah marehemu kwa sasa alinunua eneo kwa Maiko Yombayomba mwaka 2000 kwa thamani ya Sh. 200,000/=..." It is apparent that the Respondent sued on behalf of her deceased mother. However nowhere the Respondent indicated to have been appointed to administer the estate of the late Siwema Abdallah. The Respondent neither exhibited a probate nor a letter of administration for suing over the estate of the late Siwema Abdallah. It is the law that only the grantee alone can act as legal representative or sue on behalf of the deceased. Section 71 of the Probate and Administration of Estates Act, Cap 352 R.E. 2002, provide, "After any grant of probate or letters of administration, no person other than the person to whom the same shall have been granted shall have power to sue or prosecute any suit, or otherwise act as representative of the deceased, until such probate or letters of administration shall have been revoked or annulled. Also section 100 of Cap 352 (supra), provide, ’>1/7 executor or administrator has the same power to sue in respect of all causes of action that survive the deceased, and may exercise 5 the same powers for recovery of debts due to him at the time of his death, as the deceased had when living" Therefore only the executor or administrator has the power to step into the shoes of the deceased. Herein the Respondent is neither an executor nor an administrator of the deceased. As such the Respondent wrongly steped into the shoes of the late Siwema Abdallah. In other words, it can be said that the Respondent has no locus standi to sue for want of probate or letters of administration. For that matter, both grounds of appeal are meritorious. In the resultant, the proceedings of the trial ward tribunal and first appellate tribunal are quashed and the judgment and all orders emanating therefrom are set aside. The Respondent is at liberty to initiate proceedings to a tribunal of competent jurisdiction after compliance to the law and this can be done after procuring letter upon grant of probate or letters of administration. The appeal is allowed. I make no order for costs. 6