SIKANYIKAZ CASE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA SUB-REGISTRY) AT SUMBAWANGA LAND APPEAL NO. 07 OF 2023 (From the decision of the Land Application No. 11 of 2020, District Land and Housing Tribunal dated 11th January 2023 (Hon. J.L Lwezaura, Chairman) BETWEEN EDGER FRANSISCO SIKANYIKA (Adm. of the estates of the late Fransisco Mchafu Sikanyika) …APPELLANT VERSUS ADOLF MWANANDENJE ……………………… FIRST RESPONDENT JULIASI MWANANDENJE……………………….SECOND RESPONDENT SILVANUS MWANANDENJE………………………THIRD RESPONDENT FOSTINE MWANANDENJE…………………..…FOURTH RESPONDENT JOSTUS MWANANDENJE…………………………. FIFTH RESPONDENT GODI MATEPU …………………………………..……SIXTH RESPONDENT JUSAPHATI KISANGA…………………………..SEVENTH RESPONDENT SIYAWEZI KAPAMA…………………….…………EIGHTH RESPONDENT MUSA SADICK………………………………………NINETH RESPONDENT Last order: 18TH OCTOBER 2024 Judgement: 23rd DECEMBER 2024 JUDGMENT NANGELA, J.: This judgement is in respect of an appeal filed by the appellant in this court on the 23rd of February 2023. He is challenging the decision of the District Land and Housing Tribunal, (to be referred to hereafter as the DLHT) for Rukwa at Sumbawanga, in Land Application No.11 of 2020. Page 1 of 15 In his memorandum of appeal, the appellant has preferred four grounds of appeal, to wit, that: 1. The trial tribunal erred in law and fact when it entertained the matter in favour of the respondents while the 4th Respondent was dead during the trial without giving relatives of the deceased person an opportunity to appoint an administrator of the deceased’s estate who would have testified on behalf of the deceased. 2. That, the trial tribunal erred when it decided the dispute in favour of the respondents for lack of cogent evidence in proving the ownership of the land in dispute. 3. That, the trial tribunal erred in deciding the dispute without analysing the evidence adduced by the appellant. 4. That, the trial tribunal erred in law and in fact for deciding the matter in a biased manner, a fact which is unjustified in law. When this appeal was called for hearing on 22nd July 2024, this court observed that, the second and the fourth respondents had long passed away. However, there was no evidence that there was any of their representatives appointed as administrators of Page 2 of 15 their estates. For that reason, an order was made directing that such administrators be appointed. On the 10th of September 2024 this court was informed that administrators were duly appointed, and these were Mr. Silvanus Mwanandenje ((the 3rd respondent) who stands in for the 2nd respondent) and Justin Pius Mwanandenje (administrator of the estate of the 4th respondent). With such appointments, the hearing of this appeal was set on motion with oral submission being made before the court by the contending parties. In his submission, the appellant contended, as regards the first ground, that, the 4th respondent died while the case before the trial tribunal was still on-going. According to him, following the death of the 4th respondent, he urged the tribunal to stop the proceedings until an administrator is appointed, but the tribunal did not. It was the appellant’s submission that, at the time, the deceased, who was the 4th respondent, had cross-examined the appellant, and was yet to testify in court and, worst still, the appellant had not had the opportunity to cross-examine him. In his further submission, the appellant contended that the decision of the tribunal was also issued while not even the administrators Page 3 of 15 of the estate of Fostin Mwanandenje (the 4th respondent) had been appointed. As regards the second ground, the appellant told this court that, the testimonies made and evidence submitted before the Tribunal did not prove, in any manner possible, that, the respondents were the lawful owners of the disputed land located in Kaoze Village, Kaoze Ward, Sumbawanga District. He contended that, the only evidence offered was between those who bought the land and those who sold the land amongst themselves, but there was no evidence of who was the lawful owner of the land which was the subject of those transactions. Further still, the appellant made a vociferous submission that, there was no evidence that showed that the person(s) from whom the respondents bought the land were/was its lawful and truthful owner. He contended that, even in their agreements, the boundaries were not mentioned and, he concluded that, such evidence was weak because the seller of the land ought to have proved how he got the land, a fact which would have indicated that in truth he was the lawful owner. As regards the third ground, the appellant argued that the DLHT did not, as well, do justice to him. He contended, as the Page 4 of 15 rationale for that submission of his, that, the DLHT did not consider his evidence which had proved that the land belonged to his late father, Francis Mchafu, who was a neighbour to Elias John, Policarp Nzyngu (though I can remember the correct name) (all deceased as of now). He argued, therefore, that, such a failure to consider that evidence was a denial of justice to him. As regards the fourth ground, it was the appellant’s submission that the DHLT was biased as it did not consider his testimony and all the documents he tendered before the tribunal. Based on such submission in respect of the four grounds of his appeal, the appellant urged this court to allow his appeal, set aside the decision of the DLHT and declare him the lawful owner of the disputed land, since he is the administrator of the estate of the late Franscis Mchafu who owned such disputed land. He also pressed for costs to be paid if the court is so pleased. Submitting in reply to the appellant’s submission it was the first respondent’s submission that the appellant was not truthful. He contended that the land in dispute belonged to his late father, Mzee Pius Kanyalu. He admitted that, indeed, Fostino Mwanandenje died and that, later, an administrator of his estate was appointed who is the fifth respondent. The 1st respondent Page 5 of 15 admitted, however, that, the appointment of the administrator of the estate of the 4th respondent came during the pendency of this appeal. Even so, it was his submission that, the first ground of appeal is not true. As regards the second ground of appeal, it was the first respondent’s submission that there was evidence of ownership that was gave to the tribunal during trial. He submitted that the DLHT was told that the land is neighbouring Lowedi Sumini, Msawila, and Masua as the neighbours. In his submission the 5th Respondent (Mr. Jostus, also standing as the administrator of the 4th respondent) told this court that, he was, indeed, appointed in September 2024 when this appeal was pending. However, he told this court that the deceased (Fostino Mwanandenje) died after he had duly testified before the DHLT, and after the case had come to a closure, awaiting only for determination. He concluded, therefore that, what the appellant sated before this court is erroneous given that, even the 2nd respondent died far after the DLHT had issued its decision. As regards the second ground, Mr Justus (the 5th Respondent) submitted that, the same is also not true because evidence was tendered through the testimonies of those who Page 6 of 15 bought the shamba from Mzee Pius. He contended that, the evidence that Mzee Pius was the owner was from his children, as he sold it while all were aware. As regards the third ground, he also contended that it is erroneous. According to him, the DLHT considered the appellant’s evidence and the respondents’ evidence as well. He also denied that the DLHT was in any manner possible biased as it did justice and considered both sides' case. The 6th, 7th and 8th respondents supported the submissions made by their colleagues. To add, the 7th respondent submitted that, all four grounds are not true and are baseless. He urged this court to consider their response to the four grounds considering that Fostino's death was after he had testified in before the DLHT and so was Julius Mwanadenje (the 2nd respondent). He urged this court to make a finding that this appeal has no merits at all. As regards his submission, the 8th respondent added that, indeed, this appeal lacks merits. He contended that the appellant’s evidence was considered by the DLHT, and that, he even had an advocate who represented him. He argued that the DLHT did not err but did justice to the case before it as this court can look at the record. Page 7 of 15 In a brief rejoinder, the appellant rejoined that, what the respondents stated is a pure lie. He maintained that the case before the DLHT was still on-going when the 4th respondent passed on, and that was why he brought this ground to the attention of the court. He contended that, as the record will surely reveal, the deceased Fostino only cross-examined him, and then he died; no administrator of his estate was appointed, and no letter of administration was tendered or may be found in the files, meaning, for that matter, that, he died prior to offering his testimony before the DLHT. As regards the last ground, he contended that, since the time when this matter started in 2019 to date, his testimony was better placed as he proved how the boundaries of the land in dispute were, and so, for not considering his testimony and proof DLHT acted unjustly. I have carefully considered the rival submission as poignantly submitted by each party. Much as each was moved by a very high sense of emotion, this court is never moved by emotions, nor does it act based on emotion. On the contrary, it is the facts on the ground, the evidence before it and the law that Page 8 of 15 should be considered by the court, even where parties feel so much attached to their property or matters in dispute. The issue for this court is whether this appeal has merits. To establish that, this court will look at the grounds and the record before it, as well as the submissions made by the parties, before turning to what is the position of the law. One of the crucial issues to consider is the first ground which alleges that the DLHT continued with the hearing of the matter even after the 4th respondent had passed away without giving an order that a representative in the nature of the administrator of his estates be appointed to takeover the deceased’s position. If this is true, this issue alone can dispose of this matter. In defending his position, the appellant has contended that the above noted issue is in the affirmative as the 4th respondent died during the pendency of not just this appeal but the proceedings before the DLHT. The respondents deny that and contend that he passed away after the matter had been heard. They maintained that what was only being awaited was its conclusion in the form of a decision/determination. As I look at the judgement and the proceedings of the DLHT handwritten record of the proceedings shows that on the 5th of Page 9 of 15 August 2023, the advocate appearing for the appellant (claimant) one Ms. Neema Charles did raise a concern that the 4th respondent was dead. This was well before the defence case commenced but after the claimant’s case had been heard. The matter was adjourned to 23rd September 2021. It is also on record that, on the 23rd of September 2021, the 7th Respondent told the DLHT that an administrator of the estate of the 4th Respondent had been appointed but was bereaved. Later, on 4th November 2021, the Tribunal was told that the appointed administrator of the estate of the 4th respondent was a student and was away for camping exercises. The matter regarding such appointment featured in the DLHT again on the 16th of December 2021 where a summons to the alleged administrator was issued for him/her to appear, as well as on 13th January 2022 when the 5th respondent prayed that the matter be adjourned to allow him to be appointed administrator. The DLHT adjourned the matter till 10th of March 2022; 28th of April 2022 and later till 1st of June 2022 when the hearing of the defence case commenced. In all such dates, there is nowhere on the record was it indicated that proof of appointment of an administrator of the Page 10 of 15 estates of the 4th respondent was ever received by the DLHT. As the appellant rightly contended, there record is bare as nothing is in the file to evince that such administrator of the estate of the 4th respondent was appointed. The appellant’s contention that it was improper, and he was denied the chance to cross-examine such an administrator of the estate of the 4th respondent is laden with merit. As a matter of law, an administrator of the estate of a deceased person can sue or be sued or even takeover actions commenced by or in connection with the deceased person for whose estates he stands for. Sections 71 and 100 of the the Probate and Administration of Estates Act, Cap. 352 R.E. 2002 do provide for all that. See also the cases of Swalehe Juma Sangawe & Another vs Halima Swalehe Sangawe (Civil Appeal 82 of 2021) [2022] TZCA 595 (4 October 2022) and Omary Yusuph vs. Albert Munuo, Civil Appeal No. 12 of 2018 (unreported). According to section 71 of the said Act, for instance, the law is clear that, no person other than the person to whom the grant of probate or letters shall have been granted shall have power to sue or prosecute any suit, or otherwise act as representative of Page 11 of 15 the deceased, until such probate or letters of administration shall have been revoked or annulled. As that provision provides, there must be such proof of appointment and grant of probate or letters of administration. That point was a point emphasized by the Court of Appeal of Tanzania in the case of Danland Temu vs. Thomas Temu (Civil Appeal No. 243 of 2022) [2024] TZCA 751 (16 August 2024) where the court was of the view that: “appointment of the administrator of the deceased's estate is a legal process evidenced by a letter of administration issued by the court.” In the matter before the DLHT, from which this appeal originates, nothing of that sort was tendered in evidence, meaning that, nobody was, indeed, appointed as administrator of the estate of the 4th respondent who should have acted as his representative and/or appear before the DLHT to proceed with the defence of the matter in which the deceased was a party. That having been said, the question that follows is whether the DLHT’s act of proceedings with the matter before the appointment of an administrator of the estates of the 4th Page 12 of 15 respondent was done as the appellant’s advocate had requested fatal. In essence, it can be fatal since death of a party to a case can have a significant effect on that pending matter, if, for instance, his or her testimony was key to the claims or defences of the case and that testimony was not preserved, say in a written form (deposition) taken prior to his/her passing. In such a scenario it makes the claim or defence impossible to pursue unless an administrator of the estate of the deceased party is duly appointed to step into the shoes of the deceased and defend the matter or pursue the cause of action. But failure to have such administrator as a party in case of defence case, robs the plaintiff or claimant the opportunity to cross-examine which is a right before the eyes of the law. That will be the case unless it is proved to the court that the defendant/respondent in question who passed away had no legal representative, for which case the DLHT could have proceeded. That, however, was not the case as no such proof is made available anywhere in the DLHT’s record which would have entitled it to proceed to hear the matter in the absence of a person representing the estate of the deceased. Page 13 of 15 Based on such considerations, therefore, the first ground of appeal is merited, and I hereby uphold it. In principle heirs need to be appointed as administrators of their estates and information be filed in court so that they be referred to as such. As I stated earlier, this first ground of appeal is sufficient to dispose of the matter without further ado. That means, I see no reason why I should continue discussing the rest of the grounds of appeal. Since the appellant was rob of his right to cross-examine the appointed representative of the 4th respondent, the solution is not to declare him a winner but to nullify the entire proceedings and make an order that the matter be tried de novo. This court, therefore, allows this appeal to that extent and makes orders as follows: 1. That, the proceedings and judgement/order/decree of the DLHT for Rukwa dated 11th January 2023 are hereby nullified and set aside. 2. That the matter be re-heard afresh, and the appellant be afforded rightful opportunity to cross-examine the appointed Page 14 of 15 representatives of the 2nd and 4th respondents. 3. In the circumstances each party shall bear its own costs. It is so ordered. DATED AT DAR-ES-SALAAM ON THIS 23rd DAY OF DECEMBER 2024 …………………………………… DEO JOHN NANGELA JUDGE Right of Appeal Explained. Page 15 of 15