HADIJA ISSA NKOLOMA VS BI HAWA HUSSEIN

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI LAND APPEAL NO. 3140 OF 2024 (Originating from Land Application No. 39 of 2017, District Land and Housing Tribunal for Babati) HADIJA ISSA NKOLOMA....................................................... APPELLANT VERSUS BI HAWA HUSSEIN (as legal representative of the late MUSSA HAMISI @ MUSSA KIMOLO)................................1st RESPONDENT JUMA KIMOLO NKWANDAJA............................................ 2nd RESPONDENT HADIJA KIMOLO NKWANDAJA......................................... 3rd RESPONDENT JUDGMENT 27thJune & 07th August, 2024 D. C. KAMUZORA, J. The Appellant sued the Respondents before the District Land and Housing Tribunal for Babati (hereinafter referred to as the trial tribunal), for recovery of a piece of land comprising of three plots situated at Nangara Ziwani area, in Nangara ward within Babati district in Manyara region (hereinafter referred to as the suit land). According to the Appellant, she acquired jointly the suit land with her husband the late Page 1 of 14 Kimolo Nkwandaja who passed away sometimes in 1991. The Appellant claimed that in 2013 the suit land was allocated to her and her children through a program called MKURABITA in which seven plots were surveyed. That, on 26/2/2016 the Respondents herein aided by the village chairman and executive officer invaded the suit land purporting to have inherited the same from their late father. The Respondents filed a joint written statement of defence in which they disputed the Appellant's claim. They claimed that the suit land was the property of their late father one Hamisi Kimolo Nkwandaja which he acquired jointly with their mother one Hawa Mfaume Abdalah. In addition, the Respondents claimed that on 16/3/2016 and 17/3/2016 an agreement was reached between them and the Appellant in which three plots; BBT/NGR/NZ2/370, BBT/NGR/NZ2/371 and BBT/NGR/NZ2/372 were allocated to the Respondents. After hearing the matter, the trial tribunal dismissed the Appellant's application for lack of merits and proceeded to declare the Respondents as lawful owners of the suit land. The Appellant was aggrieved hence, she has preferred the present appeal with five grounds of appeal as follows; 1. That, the trial chairman erred in law and fact to enter judgment for the Respondents relying on annexures Al, A2, and A3 without analyzing their weight Page 2 of 14 2. That, the trial chairman acted with biasness to disbelieve exhibit PI for reason that the Respondents did not attend the family meeting dated 16/4/2016. 3. That, the trial chairman erred both in law and fact to hold that the late Juma Hamisi Nkwandaja was the personal legal representative o f his late father Hamisi Kimoio Nkwandaja. 4. That, the trial chairman erred both in law and fact for not properly analyzing the evidence on defence side which, if analyzed properly, he would have found that all the Respondents and their witnesses RW4 were liars. 5. That, the trial chairman failed to find out that the Respondents have other parcel o f land of about 2 acres as per their annexure A1 and the 3 plots they invaded have been sold to someone Shem who happens to be a police officer as said by the Appellant. The appeal was disposed of by way of written submissions in which the Appellant was represented by Mr. John Lundu, learned advocate while the Respondents appeared in person. In his submission in support of the appeal, the learned advocate abandoned the 3rd ground of appeal and argued the rest of the grounds. In his submission in support of the 1st ground of appeal, Mr. Lundu faulted the trial tribunal for basing its decision on annexure Al, A2 and A3 without considering that annexure A2 admitted as R1 was an agreement reached Page 3 of 14 before the local government on 17/3/2024 and it was referred in annexure Al, a letter by Ward officer dated 16/3/2016 meaning that it was referred even before it was executed. Mr. Lundu argued that the Appellant denied to have signed annexures A l and A2 hence, they are forged documents. He insisted that the tribunal chairman failed to properly analyse the contents of A l and A2/R1 which if well analysed, he would have come to a different conclusion. On the 2nd ground of appeal, the learned advocate submitted that the learned tribunal chairman was biased in disbelieving exhibit PI for the reason that the Respondents did not attend the family meeting as per exhibit PI dated 06/4/2016 and in believing exhibit R1 dated 17/3/2016 which was not attended by any of the Appellant's children who were mentioned in exhibit PI. He explained that, the Respondents were informed about the meeting but for unknown reason, did not attend and exhibit PI shows exactly who attended the meeting and those who did not attend. On the 4th ground of appeal, the learned advocate faulted the trial tribunal chairman for not analysing the defence evidence. He argued that, had the chairman analysed the evidence, he would have come to the conclusion that the Respondents and their witness RW4 were liars. The learned advocate referred page 2 of the typed judgment and submitted Page 4 of 14 that, while the Respondents alleged that the suit land was owned by their late father and they have no other land, their evidence reveals that they have other land measuring two acres which belonged to the Respondent's mother who was the first wife but who deserted the family. That, apart from the piece of land located at Nangara Ziwani measuring about 2 acres there is another piece of land located at Nangara Kati measuring about 2 acres owned by the Respondents. That, the Respondents' evidence that they do not have another land other than the suit land is not true. As to the 5th ground of appeal the learned advocate reiterated the submission on the fourth ground and added that, the Respondents invaded the suit land and sold the same to the police officer while they have their own 2 acres located at Nangara Kati. He therefore urged this court to allow the appeal by quashing and setting aside the judgment and decree of the trial tribunal and the Appellant be declared the lawful owner of the suit land. In reply to the 1st ground of appeal, the Respondents submitted that annexure A2/exhibit R1 is dated 17/3/2016 and annexure A l is dated 16/3/2016 thus, the Appellant's advocate misconceived the dates. On the argument that annexures A l and A2 were forged for they were not signed by the Appellant, the Respondents submitted that forgery was not reported to the police station by the Appellant despite being given Page 5 of 14 opportunity to do so. That, since there was no criminal case filed against the Respondents, no evidence to substantiate such serious allegations. To buttress their arguments, the Respondents referred the case of Ratilal Gordhanbai Patel v Lalji Makanji (1957) EA 314 and Omari Yusufu v Rahma Ahmed Abdulkadir [1987] TLR 169. They added that, the allegations for forgery were neither pleaded nor proved during trial thus, they remain frivolous, unfounded and afterthought allegations which cannot be raised and entertained at this appellate stage. On further submission, the Respondents added that the land in dispute was owned by their late father together with their late mother. They admitted to have grown up under the care of the Appellant who is their step-mother but they denied the fact that their mother deserted the family. In reply to the 2nd ground of appeal, the Respondents submitted that the tribunal chairman was not biased since he relied on the evidence of both sides before making a decision. They argued that the Appellant has failed to establish the alleged biasness on the part of the trial chairman. They referred the cases of Republic v Albert Awour & 3 others [1985] TLR 20, Mucoba Bank PLC v Henry Bwede Labour Revision No. 32 of 2017 in which, reference was made to the cases of Minister of Immigration and Multicultural Affairs v Jia Legend Page 6 of 14 (2001) 205 CLR 507 and South West Sydney Area Health Service vs Edmonds (2007) NSWCA 17 where this court insisted that, an allegation of actual bias should not be made lightly and that a party asserting actual bias against a judicial officer carries a heavy onus. It was insisted that, the allegation must be distinctively proven. The Respondents further submitted that since the Appellant claim that the suit plots were allocated to Fatuma Kimolo, Amina Kimolo and Halima Kimolo, she lacked locus standi to institute the case against the Respondents. Arguing the 4th ground of appeal, the Respondents maintained that the trial tribunal correctly evaluated the evidence on record and the Appellant failed to prove her ownership over the suit plots to the standard required in civil cases which is on balance of probability as stipulated under sections 110, 111 and 112 of the Evidence Act [Cap 6 R.E 2022]. They explained that the record shows that they acquired the suit plots after being given the same by the Appellant as evidenced by exhibit Rl. That, such exhibit was admitted without objection from the Appellant which signifies that the Appellant assented in giving the suit plots to the Respondents. That, they presented witnesses who supported the fact that the suit plots belong to the Respondents. Page 7 of 14 On the 5th ground of appeal, the Respondents denied being trespassers to the suit plots and insisted on being legal owners of the same. In rejoinder, the Appellant's advocate essentially reiterated his submission in chief. Having gone through the record, grounds of appeal and parties' rival submissions, there is one issues for determination, ' whether the trial tribunal properly evaluated the evidence on record'. This is because all grounds of appeal are faulting the trial tribunal for failure to properly evaluate the evidence resulting to a wrong decision. Before determining the issue raised, it is important to note that the pleadings before the trial tribunal shows that the 1st Respondent was sued in the capacity as administratrix of the estate of the late Mussa Hamisi @ Mussa Kimolo. But the judgment and proceedings of the trial tribunal as well as the petition of appeal filed before this court refer the first Respondent in her individual capacity. There is a clear omission of the statement showing that the 1st Respondent was acting in administration capacity. I however find such omission not fatal since it is not in dispute that the 1st Respondent has been all along acting in the capacity as administratrix of deceased's estate of the late Mussa Hamis @ Mussa Kimolo and I do not see if the omission prejudiced any of the parties. However, for purpose of clear records, the 1st Respondent will continue to Page 8 of 14 be referred as Bi Hawa Hussein (as administratrix of the estate of the late Mussa Hamisi @ Mussa Kimolo). Back to the merit of the appeal, the learned advocate for the Appellant faulted the trial tribunal for not properly analyzing the evidence on record for, it disregarded the Appellant's evidence and the minutes of the family meeting (exhibit PI). He also pointed out the contradiction in annexure A l dated 16/3/2010 and annexure A2 dated 17/3/2016. He also faulted the trial tribunal for not finding the Respondents as liars since they did not tell the truth about other properties left by their late father and for not finding that the Respondents could not have ownership of the properties of the deceased without the administrator being appointed. On the other hand, the Respondents supported the decision of the trial tribunal and insisted that the evidence was properly analyzed and the trial tribunal arrived to a just decision. In its judgment, the trial tribunal was of the view that the Appellant's claims lacked basis because the agreement entered on 17/3/2016 (exhibit Rl) before the village authority between the Appellant and the Respondents proves that, the three plots were allocated to the Respondents by the Appellant. It disregarded exhibit PI for being executed after the agreement (exhibit Rl) was signed between the parties. Page 9 of 14 I have considered records and submissions from both parties. In her application and evidence, the Appellant claimed two important issues; one, that the suit land was allocated to her children in 2013 through a program called MKURABITA and two, that the Respondents could not take possession of the suit land before the appointment of the administrator. Starting with the MKURABITA program, the Appellant did not tender evidence to establish the existence of the said program and if that suit land was allocated to her children. It is in evidence that the survey of the suit land was conducted in the presence of the Appellant who engineered the process and there is no doubt that she listed her name and the names of her children as people entitled to be allocated the suit land. Thus, stating that they were allocated land through MKURABITA program is without proof for she was unable to show if the program had land to allocate to people or it was responsible for survey process. Assuming that the Appellant's argument over MKURABITA program is accepted, which is not the case in this matter, it raises a point that the Appellant did not have locus standi to sue for the properties which she alleges to be allocated to her children Fatuma Kimollo, Amina Kimollo, and Halima Kimollo whom she did not state if they had no capacity to sue on their own. It was expected for the people allegedly allocated the plots to institute a suit and not the Appellant. Page 10 of 14 On the issue regarding probate matter, I am well aware of the law which requires a probate matter to be instituted for administering the deceased's estate before the properties are distributed to heirs. It is clear that all parties in this matter agreed that the suit land was originally the property of the late Hamis Kimolo Nkwandaja who died in 1992 leaving behind the wife and children including the parties to this case. The evidence from both parties before the trial tribunal is very clear on that issue. While the Respondents claimed that the suit land was previously owned jointly by their late father and mother, the Appellant admitted while under cross examination that at the time she got married to the late Hamis Kimolo Nkwandaja, she found the Respondents and their father living on the suit land. From parties' evidence it is clear that, before the deceased married the Appellant he was married to the Respondents' mother and were living with the Respondents in the same suit land measuring two acres. When the Respondents' mother left, the Respondents continued living in the same suit land together with their father before he married their step mother (the Appellant) who had other children with the deceased. Upon the demise of Hamis Kimolo Nkwandaja, the Appellant was left at the suit land and the Respondents started their own life. Page 11 of 14 The evidence further shows that after the suit land was surveyed, the Respondents complained for not being considered in their father's land as they were not allocated with any plot. The evidence also shows that they decided to resolve the matter amicably and came up with an agreement (exhibit Rl) to which the Appellant agreed to surrender 3 plots which were part of two acres surveyed. The Appellant however challenged the legality of the said exhibit Rl and instituted a land dispute before the trial tribunal claiming back the three plots from the Respondents. From the above evidence, there is no dispute that no one was ever appointed by any court to administer the estate of the late Hamis Kimolo Nkwandaja. The Appellant admitted in her evidence that there was no administrator of the estate of her late husband. In the case the of Registered Trustee of SOS Children's Villages Tanzania Vs Igenge Charles and 9 others, Civil Application No. 426/08 of 2018 [2022] TZCA 428, the Court of Appeal was faced with akin situation under which a party sued in his personal capacity for the property allegedly belonging to his late father. The court held; 7/7 the light o f what was specifically pleaded by the 1st Respondent, the shamba and the subject matter in dispute belonged to his father the iate Michael Msuma who died in 1994........ A follow up question is whether the 1st Respondent had locus standi to commence a suit against the 2nd to lCfh Respondents. In other Page 12 of 14 words, did he have the capacity to commence litigation in his own name and capacity against the 2ndto l(JhRespondents over the land which belonged to his late father. Our answer is in the negative..... the 1st Respondent had not showed that his right or interest has been breached for him to sue the 2nd to lf fh Respondents in his own name." In the matter at hand, it is on record that the Appellant instituted a suit before the trial tribunal in her personal capacity claiming for the property belonging to her late husband. As well held in the above case, the Appellant herein was unable to demonstrate if her right or interest has been breached for her to sue in her personal name for a property belonging to the deceased. Since she was not appointed as administrator of the estate of her late husband, the Appellant had no locus standito sue over the property of the deceased. Locus standi is a jurisdictional issue as it was well elaborated by the Court of Appeal in Registered Trustee of SOS Children's Villages Tanzania (supra) when it subscribed to the decision of the Supreme Court of Malawi in the case of The Attorney General Versus Malawi Congress Party and Another, Civil Appeal No. 32 of 1996 in which it was observed as follows: - "Locus standi is a jurisdictional issue, it is a rule o f equality that a person cannot maintain a suit or action unless he has an interest in Page 13 of 14 the subject o f it, that is to say, unless he stands in sufficiently dose relation to it so as to give a right which requires prosecution or infringement o f which he brings the action. " It was further held that, if a person who brings action has no locus standi \ti\s puts to question the issue of the jurisdiction which must be considered at the earliest, be it by the parties or the court itself. Had the trial tribunal in this matter considered that the Appellant had no locus stand to institute the case against the Respondents in her personal name, it could have dismissed the suit. The trial tribunal therefore dealt with nullity proceedings and the judgment therefrom, cannot stand for it stems from nullity proceedings. Consequently, the appeal is allowed to the extent that the proceedings, judgment and decree of the trial tribunal in Land Application No. 39 of 2017 are hereby nullified. In the circumstance, I will not make an order as to costs. DATED at BABATI this 07th Day of August, 2024. JUDGE Page 14 of 14