felix deogratias andanother vs detrick deogratias 2021 tzhc 3388 31 may 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF BUKOBA) AT BUKOBA Misc. LAND CASE APPEAL No. 44 OF 2019 (Arising from the District Land and Housing Tribunal for Karagwe at Karagwe in Land Application No. 97 of 2018 & original from Itera Ward Tribunal in Civil Case No. 25 of 2018) 1. FELIX DEOGRATIAS i 2. DENIS DEOGRATIAS I .............. .............. -APPELLANTS Versus DETRICK DEOGRATIAS----------------------------- RESPONDENT JUDGMENT 18/05/2021 & 31/05/2021 Mtulya, J.: The parties in the present land dispute are relatives from the offspring of Mzee Deogratias Mathayo (the deceased) who expired interstate. The parties are disputing on land boundaries left behind by the deceased. Record of the appeal shows that the land is demarcated by trees named sisal, ombumbwe, omwiganjula, and om/ama, attached with big stones and trenches. However, record displays that deceased's land size or extent of interference was not in the complaint and during proceedings in Itera Ward Tribunal (Ward Tribunal) in Civil Case No. 25 of 2018 (the case). Mr. Felix Deogratias & Mr. Denis Deogratias (the 1 Appellants) together and jointly had sued the Mr. Detrick Deogratias (the Respondent) for the intrusion of the demarcations of the land and their complaint was registered at page 2 of the proceedings in the Ward Tribunal in the following text: Kuvuka mipaka ya ardhi na kuingia kwenye eneo la watu wengine kwa kung'oa mipaka baadhi na kuanza kuiiiima eneo ia waiaiamikaji kitendo ambacho ni kinyume cha sheria. The evidences tendered by both parties show that the dispute arose during lifetime of the deceased and was not settled to date. I will explain briefly from what is displayed in the record. The proceedings at the Ward Tribunal show the following facts. At page 3 the Appellants claim that: Eneo HHiovarniwa iinatenganisha wake wa baba yetu...kipindi cha enzi za uhai wa baba yetu...aiikuwa ameweka katani za kutenganisha maeneo kati ya mama yetu na watoto wake na mama wa kambo na watoto wake...toka muda huo mgogoro uiidumu ukianzishwa na familia ya mke mkubwa kungiiia eneo ietu. Baada ya vurugu kuwa kubwa Mzee Deogratias aiiwatafuta wazee. 2 Kwa kushirikiana na famffia, Hikiuka maelekezo na maamuzi ya Mzee. Hasa baada ya Mzee kufariki walianza kuingilia hata maeneo ambayo hayakuwa yamo kwenye mgogoro ambayo yamevamiwa na mlalamikiwa kwa kuingilia kwa kisingizio kuwa ni maii yake. However, during the Ward Tribunal's inquiry, the Appellant were recoded at page 3 of the proceedings to have stated that the sisal trees were planted in 1972 before they were born and heard the story from their mother and at page 4 they stated to have no Will or any document to substantiate their statements. The Appellants further testified at page 4 that the lands were granted to them by their father before his expiry. However, the Appellants did not say as to when exactly were granted the land and evidences to substantiate the same. The Respondent on the other hand testified that the land in dispute was acquired by their father, the deceased before the parties were born and at page 5 of the Ward Tribunal Proceedings the Respondents stated that: Mzee alitaka kutuonyesha mgawanyo wetu na kuweka mipaka akisema kuwa tutapita bondeni. Ki/a mtu 3 atapeleka kuegama mHma kwa kila upande [mke mdogo na mke mkubwa] na Baba aliweka mid ya mitoma. Wakati huo, upande wa mama wa kambo ulilalamika na kung'oa mipaka hiyo na kubaki mtoma mmoja. NHimwambia Baba na Baba akasema kuwa niweke mtalo mkubwa na ni/iweka kwa kutenganisha eneo hilo na mdai aliendelea kufukia mtalo. After full hearing of parties, the Ward Tribunal decided in favour of the Appellants and stated at page 2 of the decision that: Baraza linahukumu kuwa mipaka Hiyotajwa na upande wa washtaki ndio mipaka haiaii na ifuatwe kuanzia kwenye Katani Hiyopo kwenye barabara kunyoosha mpaka mti wa omea mwisho wa mti wa ombumbwe mpaka kwenye mawe makubwa kuteiemka chini kunyoosha. The reasoning of the Ward Tribunal is found at page 1 of the decision framed in the following text: Mipaka Hiyowekwa na marehemu baba wa waiaiamikaji kwa iengo ia kuwatengamisha familia mbiH mke mkubwa na mke mdogo Hikuwa ni katani kuteiemka 4 mpaka mti wa omwinjula kutelemka mpaka mti wa Omiama mpaka kwenye ma we makubwa ambayo mpaka huo ulikuwa unanyoosha moja kwa moja ushahidi wote ulikuwa unaunga mkono na kuthibitisha kuwa walibainisha mipaka hiyo kwa lengo la kutaka kuepusha migogoro ya familia ya mke mdogo na mkubwa. The Respondent was unhappy with the holding and reasoning of the Ward Tribunal hence preferred Land Application No. 97 of 2018 (the Application) registered in the District Land and Housing Tribunal for Karagwe at Karagwe (the Tribunal). The Tribunal after going through the record of the Ward Tribunal thought that there is an issue on the administration of the deceased's estate hence quashed the decision of the Ward Tribunal for want of a administrator of the deceased's estates and finally ordered the matter to the probate and administration cause. However, the Tribunal when deciding the matter, did not invite either the parties to enjoy the right to be heard or Honorable assessors to give their opinions. Being dissatisfied with the decision, the Appellants knocked the doors of this court and registered Misc. Land Case Appeal No. 44 of 2019 (the Appeal). In thus court, the 5 Appellants registered five (5) grounds of appeal, which briefly, show that the Appellants are complaining on: consideration of the written submissions of the parties; reference of the matter to probate and administration court; and claim of adverse possession on original boundaries. In protest of the grounds of appeal, the Respondent contented that: the tribunal considered the written submissions; it was proper to refer the matter to probate and administration court; and there is no adverse possession as the original boundaries of 1972 were ordered to be followed by the Ward Tribunal as depicted at page 2 of its decision that: mipaka halali na ifuatwe kuanzia kwenye Katani Hiyopo kwenye barabara kunyoosha mpaka mti wa omea mwisho wa mti wa ombumbwe mpaka kwenye mawe makubwa kute/emka chini kunyoosha During the hearing of this appeal, this court could not grasp what the parties are exactly disputing and interpretation of the Ward Tribunal's decision on the subject. The Tribunal held that: Baraza Hnahukumu kuwa mipaka Hiyotajwa na upande wa washtaki ndio mipaka halali na ifuatwe kuanzia kwenye Katani Hiyopo kwenye barabara kunyoosha mpaka mti wa omea mwisho wa mti wa ombumbwe mpaka kwenye mawe makubwa kutelemka chini kunyoosha. 6 In the Tribunal, the Respondent replied in his petition of appeal that the holding gives him right as those are the boundaries fixed since 1972. However, the same Ward Tribunal at page 1 of its reasoning mentioned different boundaries, namely: Mipaka Hiyowekwa na marehemu baba wa walalamikaji kwa lengo la kuwatengamisha familia mbH! mke mkubwa na mke mdogo Hikuwa ni katani kutelemka mpaka mti wa omwinjula kutelemka mpaka mti wa Omlama mpaka kwenye ma we makubwa ambayo mpaka huo ulikuwa unanyoosha moja kwa moja This confusion on record of this appeal with regard to the exactly boundaries or precise size of intruded land moved this court suo moto to invite parties to enjoy the right to heard on two issues, viz-, precise size of the land or intruded land; and second, administration of the deceased estates as all parties were mentioning either their father or mother being rightful owner of the land. As the Appellants were lay persons and had no legal services of any learned counsel, they briefly and jointly stated that the land size or intruded land size was not measured and the dispute was on 7 boundaries which their identification marks of Migorola trees were uprooted by the Respondent leaving behind Ombumbwe and Katani trees, which are in the end to end of the land. With the second issues, the Appellants jointly and together stated that the land was divided to two wives of the deceased, Laurentina Deogratias and Bernadina Deogratias, in 1972 before the demise of deceased. Therefore, the issue of administration of estates of the deceased may not be invited by the Tribunal as the land was divided again to them when they completed their standard seven of primary education in 2003. The Respondent on his part, had invited the legal services of learned counsel Mr. Joseph Bitakwate to argue the appeal for him. In his brief submission, Mr. Bitakwate stated that the Ward Tribunal wrongly decided land dispute in absence of exact land size contrary to the law. To his opinion, as the parties are disputing on invasion on part of the land, the size must be stated to help the Ward Tribunal in deciding the matter. On second matter, Mr. Bitakwate submitted that the deceased died interstate without leaving any Will or distribution of his properties hence the issue of administration of estates cannot be avoided. Mr. Bitakwate submitted further that the Appellants themselves admit that the land was divided to two (2) 8 wives of the deceased hence they cannot claim ownership of the land in absence of evidence to substantiate their ownership. When the Appellants were asked on how they acquired the land, they stated that they acquired from their mother who was granted by their father, the deceased. On my part, I will start with the last issue on locus standi to bring this land dispute in the Ward Tribunal and up to this court. The record of this appeal shows that both parties are in agreement that the land or demarcations in dispute do not belong to them. The land either belongs to the deceased or their mothers, who are not part in this dispute. The Appellants at page 3 of the Ward Tribunal Proceedings state that: Eneo lililovamiwa Hnatenganisha wake wa baba yetu...kipindi cha enzi za uhai wa baba yetu...alikuwa ameweka katani za kutenganisha maeneo kati ya mama yetu na watoto wake na mama wa kambo na watoto wake Whereas the Respondent at page 5 & 6 of the proceedings of the Ward Tribunal testified that: 9 ...eneo hiIo wote tumezaliwa na kulikuta na baba alikuwa na wake wawili na walikuwa wanakaa...baba alikuwa na haki ya kuwagawia wanawake wote wawili, Baba ndie mwenye kuwa na uamuzi wa mwisho kwenye masuala ya ardhi. It is obvious from the record that the parties had no capacity or right to bring this action or appear in court. The established rule of law has been that a party who is seeking legal remedy must demonstrate to court that he has sufficient connection to the infringement of rights (see: Johansen Elias v. Paskarates Paschal, Misc. Land Case Appeal No. 53 of 2019; Ramadhani Mumwi Ng'imba v. Ramadhani Jumanne Sinda, Misc. Land Case Appeal No. 8 of 2012; Ally Ahmad Bauda v. Raza Hussein Ladha Damji & Two Others, Civil Application No. 525/17/ of 2016 and Lujuna Shubi Balonzi v. Registered Trustees of Chama Cha Mapinduzi [1996] TLR. 203). In the present appeal, both parties are stranger to the disputed land which belongs either to the deceased or his wives, upon registration of evidences to substantiate the claim of division of the land to the two wives in 1972. This appeal must fail for want of locus standi of the parties. 10 In the present case there are confusions on the disputed land size both in a whole and claimed invasion of boundaries, let alone the location. I have perused the record of this appeal and found out that it is silent on exact location and size in terms of the whole land and the claimed invaded demarcations. This has attributed the Ward Tribunal to hold on different land boundaries as depicted at page 1 & 2 of its decision, which confused both parties. The Respondent thinks that it is the old boundaries which were decided in his favour whereas the Appellants think the same. Assuming that all was well in the Ward Tribunal, but absence of description of land size and location renders the dispute incompetent for want of certainty and distinction of the land with other lands. This is important so as to abide from the requirement of the law in Regulation 3 (2) (b) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 GN. No. 174 of 2003 and precedents of this court in Daniel D. Kaluga v. Masaka Ibeho & Four Others, Land Appeal No. 26 of 2015; Rev. Francis Paul v. Bukoba Municipal Director & 17 Others, Land Case No. 7 of 2014; Aron Bimbona v. Alex Kamihanda, Wise. Land Case Appeal No. 63 of 2018; Ponsian Kadagu v. Muganyizi Samwel, Misc. Land Case 11 Appeal No. 41 of 2018; and Simeo Rushuku Kabale v. Athonia Simeo Kabale, Civil Appeal No. 6 of 2019. It was fortunate that the issue of locus standi of the parties to bring the action in this dispute was detected by the Tribunal, but the Tribunal without involving the parties and assessors, determined the issue to the finality and referred the dispute to the probate and administration court. The detection of the issue was proper, but failure to invite the parties to enjoy the right to be heard or explain on the subject is violation of constitutional right under article 13 (6) (a) of the Constitution of the United Republic of Tanzania [Cap. 2 R.E. 2002] and precedents in Mbeya Rukwa Auto Parts and Transport Limited v. Jestina George Mwakyoma, Civil Appeal No. 45 of 2002; TANELEC Limited v. The Commissioner General, Tanzania Revenue Authority, Civil Appeal No. 20 of 2018; Judge In Charge, High Court at Arusha & The Attorney General v. Nin Munuo Ng'uni [2004] TLR 44); The Principal secretary, Ministry of Defense and National Defence v. Valambia [1992] TLR 387; and Yazidi Kassim Mbakileki v. CRDB (1996) LTD & Jackem Auction Marts and Court Brokers, Civil Reference No. 14.04 of 2018). 12 In that regard, any breach of the law, especially in cases like the present appeal where the Tribunal curtailed the parties to exercise their right to be heard, the fault may not be left unattended. Similarly, the Tribunal is composed by Chairman and not less than two honourable assessors as per law in section 23 (1) of the Land Disputes Courts Act [Cap. 216 R.E 2019] (the Act). The Act in section 23 (2) read together with section 24 provides that the Tribunal is duly constituted when held by a Chairman and two assessors who are required to give out their opinions and before the Chairman reaches the judgment, must take into account of the opinions. It is fortunate the two sections have received judicial interpretations in both courts of record, namely: first, this court in the precedent of Elia Alphonce v. Idrisa Salimu, Misc. Land Case Appeal No. 36 of 2012; and second, in the Court of Appeal in Awiniel Mtui & Three Others v. Stanley Ephata Kimambo (Attorney for Ephata Mathayo Kimambo), Civil Appeal No.97 of 2015. Both precedents held that held that decision without assessors' opinions is a nullity. In a situation where the parties in the dispute have no locus standi, and the land or demarcations in dispute are not clearly 13 displayed on the record from the proceedings of the Ward Tribunal and noting the Tribunal decided the matter without abiding with the laws and precedents of this court and Court of Appeal, this court must set aside the proceedings and quash decisions of both tribunals below this court in Application No. 97 of 2018 of the District Land and Housing Tribunal for Karagwe at Karagwe and Civil Case No. 25 of 2018 of the Itera Ward Tribunal for want of legality, as I hereby do. No orders as to the costs as the parties area relatives and illegalities were partly attributed by the tribunals below this court. court in the presence of the Appellant Mr. Felix Deogratias and Mr. Denis Deogratias and in the presence of the Respondent, Mr. Detrick 14