Emmanuel Isavika vs Lucia Pius Nsalamba

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA LAND APPEAL NO. 25 OF 2023 (Originating from Miele District Land and Housing Tribunal in Application Ng. 09 of 2022) EMMANUEL ISAVIKA .................. ...................APPELLANT

VERSUS LUCIA PIUS NSALAMBA .................... ............RESPONDENT

JUDGMENT MWENEMPAZI, J. The appellant herein is aggrieved with the decision of the District Land and Housing Tribunal for Miele at Katavi (herein forthwith to be referred as trial tribunal) in Application No. 09 of 2022, in which the matter in dispute was land which was situated at Igombe A area at Inyonga in Miele District which is approximately 50 metres length and 45 metres width. At the trial tribunal, the respondent applied for vacant possession of the above-described piece of land in which she alleged to have bought it together with her late husband (Joram Dana Kaswiza) from one person known as Thomas Mgawe in the year 1977. That, the appellant herein invaded the piece of land and unlawfully sold it without her being i consulted in which she had filed the complaint at the Inyonga Ward tribunal in which reconciliation failed and hence filed the Application at the trial tribunal. At the end of a full trial/ the trial tribunal concluded that the disputed land does belong to the respondent as she was the joint occupier with her late husband of the disputed land as it is stipulated under Section 159(4)(b) of the Land Act No.4 of 1999. The trial tribunal held firm on its decision by insisting that the disputed land was not even listed as among the properties which were owned by the deceased knowingly that it was not subjected for division amidst the beneficiaries of the

deceased person. Aggrieved as he was, the appellant packed all that he had and ran to this court with his Petition of Appeal which consists of four (4) grounds in which I find best to reproduce them for ease of reference as follows herein: - 1, That, the appellant had no locus stand before the trial tribunal because he had sold the property as the Administrator of the deceased estate but when he was sued, he already handover, his work as the administrator of the deceased estate.

2. That, the trial tribunal erred in law and fact to decide that the property belong to only LUCIA PIUS without considering the 2 evidence of the respondent which shows the property belongs to the estate of the deceased.

3. That, the trial tribunal erred in law and fact to decide that the property is the jointproperty without any evidence which shows reality of that facts.

4. That, the trial tribunal erred in law and facts to decide that the property did not belong to the deceased estate while all evidence shows that the property belong to the estate of the deceased. From the grounds above, the appellant prays for this court to find merit in this appeal and proceed to allow it in its entirety and that, this court dismisses the judgement and decree of the trial tribunal by quashing the same and the respondent to be condemned to bare the costs of this appeal and any other relief this court deems fit to grant. On the hearing date, the appellant was represented by Mr.Richard Mdee learned Advocate, whereas the respondent appeared for herself as she had no any legal representation. As both sides were ready to proceed with the hearing, the respondent sought leave of this court that the hearing be conducted by way of written submissions. Mr. Mdee did not object to this 3 mode, and therefore this court scheduled the filing of the respective submissions in which, both parties fully adhered to the scheduled dates. Nevertheless, upon filing the respective submissions, the respondent a preliminary objection which was as follows; That the Appeal is bad in law for being titled Petition ofAppeal instead of using proper tide to wit: Memorandum ofAppeal, In her submission in support of the preliminary objection, the respondent submitted that she would like to

argue quite briefly that this Appeal needs to be stricken out as it is bad in law in which it originated from the District Land and Housing Tribunal for Miele at Katavi and matters originating from the same are to be presented by way of Memorandum of Appeal. That this appeal does not comply with the mandatory provision of O.XXXIX Rule 1 of Civil Procedure Code Cap. 33 R. E. 2019 and she rephrased as hereunder, that; 1-(1) Every appeal shall be preferred in the form of memorandum signed by the appellant or his advocate and presented to the High Court (hereinafter in this Order referred to as "the Court") or to such officer as it appoints in this behalf and the memorandum shall be accompanied by a copy of the 4 decree appealed from and (unless the Court dispenses therewith) of the judgment on which it is founded. Lastly, she submitted that the appellant has committed a fatal irregularity which renders this appeal incompetent before this court since the law has stated clearly that the Appeals from the DLHT to the High Court must be presented by way of Memorandum of Appeal for being an appeal from original decree. That, the statutory provisions contain the word 'shall'then the requirement therein is a mandatory and that, parties have no power whatsoever to dispense with the requirement. Therefore, she insisted that this appeal is incompetent and deserves to be stricken out with

costs. In response to the preliminary objection raised, the appellant through his learned counsel submitted that the objection raised by the respondent does not qualify as an objection as it only wastes the precious time of the and led to justice delay as it does not affect the merit of the case, that the law requires that the objection raised must go to the merit of the case, whereas this objection is on the title in which it is written Petition of Appeal instead of Memorandum of Appeal, but the title and the merit are the same. He therefore humbly submits that this court overrules the objection as it lacks merit and makes justice to be delayed. 5 Having gone through the submission in support of the preliminary objection raised and the response thereto, the sole issue for determination is whether the said objection has merits. It is not in dispute that, the instant appeal lodged before this court is titled as "petition of appeal". It is however the appellant's submissions that appeal should have been titled as "memorandum of appeal" as required by Order XXXIX Rule 1(1) of the CPC. In determining the preliminary objection raised, I regarded the law applicable to appeals arising from the District Land and Housing Tribunals (the tribunals) to the High Court, in which there are several laws applicable before the trial tribunal, however the primary laws are the Land Disputes Courts

Act [CAP 216 R.E 2019], (the Act) and the Land Disputes Courts (the District Land and Housing tribunal) Regulations GN. No. 174 of 2003 (the Regulations). The CPC is only applicable to the proceedings before the tribunals, but where there is inadequacy in the Act or Regulations, the recourse is Section 51 (2) of the Act. It is therefore clear that, any person aggrieved with the decision of the tribunal whether in the exercise of its respective original, appellate or revisional jurisdictions, is required to lodge an appeal to this Court in terms of Sections 38(1) or 41 of the Act. The provisions of Section 38(1) of the 6 Act govern the appeals from the tribunals when exercising Its appellate or revisional jurisdiction. Whereas, Section 41(1) deals with appeals from tribunals when exercising its original jurisdiction. Unlike the provision of Section 38 (2) of the Act which expressly requires the appeal to be filed by way of "petition". Section 41 of the Act is silent as to whether an appeal to this Court should be preferred by petition or memorandum. In those perimeters, the fundamental issue which needs to be addressed is whether the use of the word "petition" instead of "memorandum" renders the instant appeal incompetent. In our jurisdiction both the petition of appeals or the memorandum of appeal, are used to challenge the impugned decision to the superior court. The

distinction is only drawn When there is the statute couching a mandatory provision. A similar situation was decided in the case of Mary Mwambene vs Benson Mwashambwa, Land Appeal No. 42 of 2016 (HC at Mbeya, unreported) which also referred to the case of Basil Masare vs Petro Michael [1996] TLR 226 where the court was ruled that the use of the word petition, though not consistent with the normal term used in appeal from the District court or Land Tribunal is not fatal to the appeal. 7 The court has been put to task in a couple of times to distinguish between petition and memorandum of appeal. As in the case of Basil Masare vs Petro Michael (supra), where it observed this; What substantive distinction can one make from the use of the words 'petition1 or 'memorandum' when referring to grounds of appeal to a higher court? I must confess, I can see no such distinction although I would say that it would be preferable if an intending appellant uses the word adopted by the legislature for the relevant type of appeal. In my view, if an appellant uses the word 'petition' instead of the word 'memorandum' in connection with his grounds of appeal in a case originating from the DLHT, that alone cannot render the appeal incompetent. In addition to that, the respondent will not be prejudiced by the use of the word ''petition’1 instead of "memorandum" as the law did not stipulate what to be

opted to initiate the appeal. I am therefore of the settled mind that, there is no injustice caused to the respondent. Consequently, the preliminary objection raised by the respondent is hereby overruled with no order as to costs. 8 As both parties were ordered to file their respective written submissions as scheduled, the appellant through his learned counsel submitted on the first ground that, the appellant did not have locus stand before the DLHT because he sold the properties as the administrator of the deceased estate but when he was sued, on his personal capacity. He proceeded that, the law of the land is clear when it comes to the properties of the deceased estate as when the administrator of the deceased estate has been appointed by court, the party in contention with the decision is required to file an objection to the court which heard the matter but what is going on is to object the decision of the court by using DLHT. He submitted further that, when one looks to the decision of the tribunal it denied that the properties in dispute do not form party of the deceased estate but even the respondent herself and all witnesses brought by the respondent at the DLHT they all agreed that the properties were found by the efforts of the deceased and the respondent and for that reason it made the disputed land to qualify to be among the properties of the deceased estate and

being subject to distributed between the beneficiaries. It is in the submission by the appellant that, the contract which he brought in court as evidence that the said property has already been sold shows that the said property in dispute was sold by the administrator of the 9 deceased estate but he has been sued on his personal capacity while he did not sell the properties in his personal capacity but rather as the administrator of the deceased estate. Therefore, insists on the ground number one that he lacked locus stand to stand before the tribunal and also the respondent failed to sue the buyer, she sued the wrong seller so the appellant prays that on this ground the appeal to be allowed and the court to quash the decision of the MLELE DLHT. Coming to the second ground of appeal as raised by the appellant, it is again in his submission that the DLHT decided that the disputed property was a joint property without any evidence and even the respondent herself told the tribunal that the property was acquired by the deceased and they decided to live there after moving from Ilunde to Inyonga village on those days, so how come the property acquired before the respondent got married to the deceased becomes a joint property. He then added, the law is clear that a joint property must be acquired in the manner that everyone agrees to each other that will be the joint property as it

was held by LORD DENNING M.R in the case of Cooke vs Head [1972] 1W.LR 518 at page 520 para F-G said; "Whenever two parties by theirjoint efforts acquire property to be used for their joint benefit the court may impose or impute io a constructive or resulting trust The legal owner is bound to hold the property on trust for them both.......it applies to husband and wife, to engaged couples and to man and mistress..." He proceeded that, by looking at their case, all the evidence shows that the respondent got married to the deceased while the deceased had already acquired the property in question, therefore the property does not qualify to be joint property. The appellant then prays for this ground of appeal to be allowed. Submitting in support of the third ground of appeal, the appellant submitted that by looking at the said ground it is true that the DLHT did not consider the facts that the deceased was married to more than one wife therefore all properties he acquired during his life time belong to the beneficiaries not as a joint property but as the property of the deceased and the one who was appointed by the court to collect and distribute to the beneficiaries is the appellant but not on his personal capacity but as the administrator of the deceased estate. Therefore, there were no clear evidence that the property was a joint property. Submitting on the fourth ground, the

appellant stated that, it is true that all witness brought by both sides at the DLHT proves that the property 11 belonged to the deceased estate and that was not disputed in the tribunal so it is by surprise to seethe tribunal give the right of the property to the respondent. And from the submission made, the appellant humbly prays that the appeal to be allowed and the High court to quash the decision of the DLHT and announce the disputed land to be the property of the deceased person the Late JORAM KASWIZA. In reply, the respondent submitted that in order to save this Court's time and address this Honourable Court on the issues which arise in this appeal, she humbly begs to submit on the third and fourth grounds together since they are inter related but she Will proceed by submitting against the first ground. She started off that, the-Appellant sold the suit land as an administrator and therefore he should also be sued on the same capacity regardless to whether he had already handed over or not. She added that, she was the wife of the deceased and she filed the suit in the trial tribunal as the wife the deceased claiming her interest against the administrator of the estate of the late JORAM DANA KASWIZA in the suit property which was disposed by way of sale by the administrator (Appellant) while acting as administrator of the estate of the deceased thus he can not deny

liabilities arising from his action while actin in the 12 said position. Therefore, the respondent is convinced that this ground is meritless. In respect of the second ground of appeal, the respondent submitted that it was proper for the trial tribunal to decide that the property belonged to the her and this was in accordance to the evidence adduced by both parties that the property was obtained by joint effort of the late JORAM DANA KASWIZA together with the Respondent, thus the Respondent being the only survival in respect of owners of the suit land was the only lawful owner as per section 159 of The land Act Cap 113 R.E 2019 as cited by the trial Tribunal at page 7 of the typed judgement which reads as follows; "kwa uthibitsho huu, kifungu cha 159 cha sheria ya Ardhi kinaelekeza kwamba kipande cha ardhi kinaweza kumiiikiwa na watu zaidi ya mmoja kinasema; S.159 (1) in this act, co-occupancy means the occupation of (and held for a right of occupancy at tease by two or more undivided shares and may be either joint occupancy or occupancy in common. S.159 (4) (b), on the dearth ofjoint occupier, his interestshall vest in the surviving occupiers jointly" 13 She then added that, therefore, the trial tribunal was right to decide that the property belongs to the her (being the only surviving co-occupier) in respect to the suit property and this was in accordance of the

evidence which was adduced by both parties in respect to ownership of the suit property that the property was obtained by the late JORAM DANA KASWIZA together with the her, thus this ground of appeal is unfounded in this level. Lastly, as she hinted earlier, the respondent then submitted in respect of the third and fourth ground of appeal the evidence adduced by both sides in this dispute proves that the said property was acquired by the late JORAM DANA KASWIZA and the Respondent to mean the joint ownership of the suit property. That, the evidence to prove the same was clearly shown in the typed judgement of the tribunal at page 6 which reads as follows; "hata ivo mwombaji anaeieza wazi kuwa eneo ia mgogoro afiiipata yeye pamoja na mume wake JORAM DANA KASWIZA mwaka 1979 mwombaji anaiiambia baraza kuwa mail yenye mgogoro haikuwa sehemu ya mirathi na hivyo msimamizi wa mirathi aiivamia eneo hiio kwani ni maii yake. .......................... .. Mwaka 1979 waiihama Hunde na kuja Inyonga ambapo waiinunua nyumba yenye mgogoro Jambo hiio iimeungwa mkono na mashahidi SM2, SM3f SM4 na SU2 na SU1..." 14 The respondent therefore insisted that, the decision of the trial tribunal, that the property is joint property was reached per evidence adduced as stated in the trial tribunal's judgement, again these grounds of appeal are also baseless in this appeal. Basing on her submission in

opposing the grounds of appeal, the Respondent prays for this Honourable Court to dismiss the appeal with costs. After carefully reading the records of appeal before me and the grounds of appeal and the respective submissions made by both sides, the only determinant issue here is whether this appeal is meritious before this court. Considering the entire records of appeal before me, it is clear that the dispute arose as the result of the death of the husband of the respondent in which it is not in dispute that indeed the respondent was the third wife of the deceased one Joram Dana Kaswiza and they were living on the land which has been sold by the appellant in the course of executing his duties as an administrator of the deceased's estate. It is in my reasoning that the all the grounds of appeal will be jointly be determined in my analysis of this matter at hand. 15 As I start off, in Probate and Administration matters, the power to collect, distribute and account to the court remains in the hands of the administrator of the estate as per Section 108 of the Probate and Administration of Estate Act, Cap 352. Therefore, an aggrieved party should claim against the administrator. It is my holding that the respondent was correct to sue the appellant at the trial tribunal even if he had handed over his duties, he was the one who sold the disputed land, he too testified the same at

tribunal that he did so under his capacity as the administrator of the estate of the deceased as seen on Page 13 of the typed proceeding of the trial tribunal. Nevertheless, after being appointed by the court as an administrator, the appointee would be handed several forms, to wit; the appointment Form known as Form No. IV, Form No. V which shows the list of assets of the deceased and Form No. VI which shows the distribution of the assets among the beneficiaries. It is however unfortunate that the appellant only tendered Form No. IV to prove that he was indeed appointed as the Administrator of the Estate of the late Joram Dana Kaswiza. It is in my reasoning that the appellant knew the disputed land was not listed as among the assets of the deceased and that is why he never tendered the Form No. V as he also knew that the beneficiaries were just 16 laypersons. However, as I intend to leave no stone unturned, the appellant did tender the clan meeting report which listed all the assets of the late Joram Dana Kaswiza, and unsurprisingly, the disputed land was listed as among the assets owned by the deceased. To that fact, I do concur with the respondent and the decision of the trial tribunal that properties which are subjected to distribution to the beneficiaries are only those which were collected by the chosen Administrator and listed as the properties which belonged to the deceased and not otherwise. Consequently, I find no merits in this appeal and therefore, it is hereby dismissed with costs. The decision of the District Land and Housing Tribunal for Miele at Katavi is being upheld. It is so ordered. Dated at Sumbawanga this 27th day of September, 2024. T. M. MWENEMPAZI

JUDGE 17