Happifania Rugendo v Hilali Damiano Another Misc

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA MISCELLANEOUS LAND APPEAL NO. 52 OF 2023 HAPPIFANIA RUGENDO .............................. COMPLAINANT / APPELLANT / APPLICANT /

PLAINTIFF

VERSUS 1. HILALI DAMIANO 2. JOTHAM NSIMBAKILA .............................. RESPONDENT / DEFENDANT

JUDGMENT J. NKWABI, J, J. NKWABI, J, 12/08/ & 06/11/2024 This appeal has its origin from Land case No. 47 of 2020 at Bitare ward tribunal where the appellant claimed for a piece of land against the respondents. The appellant lost the suit. She unsuccessfully appealed to the District Land and Housing Tribunal for Kigoma in Land Appeal No. 85 of 2023. In this appeal, she has preferred four grounds of appeal. She is seeking for the reliefs thus: 1. The appeal be allowed with costs.

2. The decision by both lower tribunals be quashed.

3. Any other relief(s) this Honourable Court may deem fit and just to grant. The appeal was disposed of by way of written submissions. The appellant drew and filed her written submissions in person without representation by advocate. The 1st respondent had his written submission in reply, drawn gratis by Mr. Godrian Tillya, learned counsel and filed by the 1st respondent himself. The 2nd respondent did not file a reply submission. The appellant too did not file a rejoinder submission. I will deal with the grounds of appeal as submitted by the parties. Addressing the 1st and 4th grounds of appeal jointly, which according to the appellant’s submission in chief, are to the effect that the appellate tribunal erred for holding that the appellant sued before the trial tribunal while had no locus standi as was not administratrix of the estate, the appellant argued that she acquired the suit land through customary inheritance hence there was no need of having letters of administration since she had used the said land independently for 27 years now. She cited Lujuna Shubi Ballonzi, Senior v. Registered Trustees of Chama Cha Page. 1 Mapinduzi [1996] T.L.R. 203 (HC), Samatta J.K. (as he then was) and Khanan Said Aljabry v. Nevumba Salum Mhando, Miscellaneous Land Appeal No. 81 of 2021 HC. She added that passing through the tribunal record, it is evident that the respondent themselves

proved in favour of the appellant, as they saw the appellant alone for more than 27 years in exclusion of other family members, hence the reasoning by the appellate tribunal is misconceived. She pressed that she has a separate plot from that of the respondents. She went on to submit that the respondents said that the suit land was used by the late Rugendo Nkina but when he passed away the family held a meeting and distributed the plots customary where the suit land was allocated to the appellant. Thus, she has proved her own interest citing Dirshad Othman Hassan & 2 others v. Kariakoo Auction Mart Co. Ltd regarding locus standi. The appellant too submitted that the appellate tribunal misdirected itself on its conclusion by failure to quash the whole proceedings of the trial tribunal rather than dismissing the appeal, which it did. She cited Jacob Jesse Angowi v. Joachim Zuberi Msofe, Miscellaneous Land Case No. 9 of 2022, HC. She prayed the appellate tribunal decision be quashed and the ground be allowed. In reply submission on the 1st and 4th grounds of appeal, Mr. Tillya stated that the tribunal was correct to dismiss the appeal because it is true the appellant was not the administratrix of the estate of her late father. He explained that she claims to be appointed administratrix by clan meeting but did not tender any document to prove that claim. He insisted that the

appellant lacked the locus stand to sue. I have considered the submissions of both parties as well as the record. I find that the appellate tribunal did not decide on the issue of locus standi so the criticism against the first appellate tribunal is unfounded. Actually, what the appellate tribunal did is justified under the principle that parties are bound by their pleadings and are preclude from changing the cause of action as held in Makori Wassaga v. Joshua Mwaikambo & Another [1987] T.L.R. 88 where it was underscored that: “A party is bound by his pleadings and can only succeed according to what he has averred in his plaint and proved in evidence; hence he is not allowed to set up a new case.” See also Barclays Bank (T) Ltd v. Jacob Muro, Civil Appeal No. 357 of 2019 CAT. I stress that a party gets redress according to the cause of action they pursued, see Stanbic Finance Tanzania Ltd v. Giuseppe Trupia & Chiara Malavasi [2002] T.L.R. 221 and Auto Garage & Others v. Motokov [1971 EA Page. 2 514. In this case, as could be seen in the statement of claim, the appellant sued the respondents for trespassing into a piece of land of the family of Rugendo Nkana. In this Court, in her submission, she claims that she acquired the suit land through customary inheritance because the family held a meeting and distributed the plot customary where the suit land was allocated to the

appellant. In my considered opinion, I think that the appellant has never seen a few decisions of the courts of law in our jurisdiction. Had she seen the same she would have not argued as she has done. One of such decisions is the case of Manugwa Lutalamila & 2 Others v. Martha Lutalamila [1982] T.L.R. 98 in which Mfalila, J., as he then was held that: “where the matter in issue is inheritance under customary law, then irrespective of the nature of the property involved, the Primary court has jurisdiction unless the High Court has directed under s. 88 of the Probate and Administration Ordinance that the provisions of the Probate and Administration Ordnance that the provisions of that Ordinance shall apply to the estate in question.” In George Kumwenda v. Fides Nyirenda [1981] T.L.R. 211 Kisanga, J., as he then was held inter alia that: “a primary court has jurisdiction in administration cases of three conditions are satisfied:- 1. the matter is of civil nature; 2. the applicable law to it is either customary law or Islamic law. (Section 14(1) of 5th schedule to the Magistrates’ Courts Act, 1963)” The bottom line here is that even if the estate is to be distributed in customary norms, yet appointment of administrator of the estate is the domain of the court be it a primary court. The above is not all, the appellant seems to be not aware that probate matters could be lodged at

any time as stated in Pili Rajabuv. Halima Abdallah [2012] T.L.R. 340 HC, Teemba, Judge “In law, the application for letters of appointment and administration of the estate of a deceased person can be lodged at any time. The fact that there is property falling under the estate of the deceased, Rajabu Abrahamani, the appointment of administrator is necessary. … The appointment of the administrator is restored …” So, it is increasingly clear that whenever there is an estate of a deceased, the interested person(s) has/have to lodge an application for appointment of administrator of the estate. The effects of failure to do so, in my view are dire, one of them is what is befalling the appellant in this case. Where there is any dispute, one cannot be assisted even if one claims customary inheritance because the law is clear. Page. 3 If I may assist her, in my view, what is required of her is to follow the required procedure because judgment in land matters is not a judgment in rem, despite the decision in this case she might get redress, see Masumbuko Kowolesya Mtabazi v. Dotto Salum Mbega, Civil Appeal No. 44 of 2013 and Jacqueline Jonathan Mkonyi & Another v. Gausal Properties Ltd, Civil Appeal No. 311 of 2020, CAT, where it was stated thus: “In land cases, judgment in favour of a party is not always judgment against the whole world so it does not bind those who were not

parties.” The appellant seems to want a short cut, but she should know that a stitch in time saves nine. Ignorance of law, has never assisted any ignorant party. The above notwithstanding, I am quite aware of the requirement in the case of Abdullatif Mohamed Hamis v. Mehboob Yusuf Osman & Fatna Mohamed, Civil Revision No. 6 of 2017 CAT (unreported) where it was stated: “Indeed, non-joinder of the legal representative in the suit under our consideration is a serious procedural in- exactitude, which may seemingly breed injustice. …” But it should be remembered that one cannot eat his cake and have it. The appellant is the one who is travelling on a wrong lane of the road. She cannot get the assistance of this Court because the Court does not assist the person who is wrong as stated in Kig Bar Grocery & Restaurant Ltd v. Garabaki & Another [1972] E.A. 503 where it was held that: “… no court will aid a man to drive from his own wrong.” The above stated, I hold that the 1st and 4th grounds of appeal are lacking in merit, they stand dismissed. On another ground of appeal, the appellant submitted that the trial and the appellate tribunal both erred for relying on very weak and contradictory evidence as the witnesses by the respondent testified on non-existing fact. She contended that the witness told the trial tribunal that the suit land belongs to his late father Kagoroba

Kansato, which was not an issue before the tribunals. In reply submission, 1st the respondent through Godrian Tillya, learned counsel conceded that the respondents and the appellant acquired the piece of land through inheritance from their parents who were friends and neighbours since 1982 with two different plots and boundaries were clear. But in the year 2020 the appellant started trespassing to the respondents’ land claiming that the whole land belongs to her. But the respondents have been Page. 4 occupying the land for over 27 years up to date. Regarding the claim that the evidence of the respondents was weak he replied that the trial and the appellate tribunal considered properly the evidence. I have closely considered the rival submissions and the evidence on record I think that the appellant is the one who is complaining on matters which were not in issue, but she is flipping it to the respondents. The issue before the trial tribunal was whether the respondents were trespassing over the appellant’s family a piece of land. To prove the same among other pieces of evidence, she ought to have, in proper circumstances, proved that the family has permitted her to sue on their behalf or proved to be administrator of the estate of the deceased, then proceed to prove ownership. She did not prove that, then her evidence was weak and the decision of the first appellate

tribunal cannot be held to be wrong. In the premises she did not satisfy the standard of proof demanded of her in Paulina Samson Ndawavya v. Theresia Thomasi Madaha, Civil Appeal No. 53 of 2017 CAT (unreported) where it was held: “It is trite law and indeed elementary that he who alleges has a burden of proof as per section 110 of the Evidence Act, Cap. 6 [R.E. 2002]. It is equally elementary that since the dispute was in civil case, the standard of proof was on a balance of probabilities which simply means that the Court will sustain such evidence which is more credible than the other …” The ground of appeal is lame, thus it fails. The appellant too submitted on the 3rd ground of appeal while maintaining that the appellate tribunal infringed the doctrine of adverse possession, that if the appellant would have used the suit land which does not belong to her for about 27 years with undisputed occupation while limitation for recovery is 12 years. She referred me to the case of Morandi Rutakyamirwa v. Petro Joseph [1990] T.L.R 49. She also cited me to section 3(1) of the Law of Limitation Act, Cap. 89 and Customary (Limitation of Proceedings) Rules 1963. She reiterated her earlier submission that the respondent acknowledged to see her in the suit land more than 27 years and the dispute arose in 2020. Replying to the 3rd ground of appeal, Mr. Tillya said that the respondents are

rightful owners as they have been in possession of the suit land for a long period of more than 27 years to date. They have been developing the land without any dispute. Page. 5 I have taken due consideration of the submissions of both parties. I have also considered the law of the land. In our jurisdiction the law about adverse possession is very clear. In Hon. Attorney General v. Mwahezi Mohamed (as administrator of Estate of the late Dolly Maria Eustace) & 3 others, Civil Application No.314/12 of 2020, CAT (unreported) it was observed that: “Apart from being from a foreign jurisdiction, the said decision based on Article 65 of the Indian Limitation Act, 1963 to opine that once the right, title or interest is acquired through adverse possession, it can be used as a sword by the plaintiff as well as a shield by the defendant. It is very unfortunate that in our country, we do not have a similar law.” In Registered Trustees of the Holy Spirit Sisters Tanzania v. January Kamili Shayo & 136 Others, Civil Appeal No. 193 of 2016, (unreported) CAT it was held that: “Possession could never be adverse if it could be referred to a lawful title … It has always been the law that permissive or consensual occupation is not adverse possession. Adverse possession is occupation inconsistent with the title of the true owner, that is, inconsistent with and in denial of the right of the true

owner of the premises (see the referred English cases of Moses v. Lovegrove and Huges v. Griffin (supra).” Further, in Masumbuko Kowolesya Mtabazi v. Dotto Salum Chande Mbega, Civil Appeal No. 44 of 2013, CAT it was underscored that: “Be that as it may, this argument only serves to cement the fact that the appellant is not confident about his ownership of the disputed land. It also strengthens the respondent’s case which was supported by proprietary documents including the offer of the right of occupancy as well as the certificate of title to the disputed land.” In this case too, the appellant seems to be not confident with her ownership. If she inherited the piece of land in dispute through inheritance by customary inheritance, then adverse possession cannot be available to her. If her ownership over the disputed piece of land is through adverse possession then she is precluded from claiming inheritance by customary distribution of an estate. In the premises, I hold that adverse possession cannot be available to the appellant because she claims she acquired the suit land through customary inheritance hence there was no that need of having letters of administration. The ground of appeal crumbles to the ground. The appellant, finally reverted to submit on the 2nd ground of appeal that the assessors’ opinions were not solicited, the appellate tribunal chairperson only mentioned

them but did not act on the same which violated Regulation 19 (2) of the Land Disputes Courts (District Land and Housing Tribunal) Regulation GN No. 174 of 2003 and section 24 of the Land Courts Act Cap. 216 R.E. 2019 which require a chairperson to take into account the opinion of assessors before he/she pronounced the judgment. She added that the chairperson only wrote the said opinion but did not state as to where she concurred but continued to determine the matter. She pressed that the chairperson is bound to state as she accepts or reject and not otherwise. She finally prayed the appeal be allowed Page. 6 with costs. Mr. Tillya disputed the submissions in chief on this ground of appeal and said that the chairperson considered the opinion of assessors in making her decision. It is prayed that the appeal be dismissed for being baseless and uphold the decisions of lower court, costs be provided and any other reliefs deemed fit and just to grant by this Court. To deal with the above ground of appeal, I propose to first revisit decided cases on the subject matter. In Tubone Mwambeta v. Mbeya City Council, Civil Appeal No. 287 of 2017 CAT (unreported) it was underlined that: “In view of the settled position of law, where the trial has been conducted with the aid of the assessors, … they must actively and effectively participate in the proceedings to make meaningful their role of

giving their opinion before the judgment is composed … since regulation 19(2) of the Regulations requires every assessor present at the trial at the conclusion of the hearing to give his opinion in writing, such opinion must be availed in the presence of the parties to enable them to know the nature of the opinion and whether page 4 of 6 or not such opinion has been considered by the Chairman in the final verdict.” In Edina Adam Kibona v. Absolom Swebe (Shell), Civil Appeal No. 286 of 2017 CAT it was held that: “… the opinion of assessors must be given in writing and be reflected in the proceedings before a final verdict is issued.” In yet another decision which is Ameir Mbarak & Another v. Edgar Kahwili, Civil Appeal No. 154 of 2015 CAT stated that: “Therefore, in our considered view, it is unsafe to assume the opinion of assessors which is not on the record by merely reading the acknowledgment of the Chairman in the judgment. In the circumstances, we are of a considered view that assessors did not give any opinion for consideration in the preparation of the Tribunal’s judgment and this was a serious irregularity.” I having the position of the law as indicated above, I turn to determine the ground of appeal. In the present case which is under my consideration, on 22/03/2023 the chairperson directed the assessors to write their opinions. On 26/05/2023 the opinions were read

over to parties then followed by judgment delivery which is a unanimous judgment. In the circumstances of this case, the complaint is unmerited. It should be borne in mind that each case must be decided according to its circumstances. No prejudice has been occasioned to the appellant and the above cited decisions of the Court of appeal were complied with by the appellate chairperson. The ground of appeal is rejected. Page. 7 On account of the above discussion, I dismiss the appeal with costs because it is unmerited. The concurrent decisions of both lower tribunals are upheld. It is so ordered. Dated at KIGOMA ZONE this 6th of November 2024. J. . NKWABI, J

JUDGE OF THE HIGH COURT J. . NKWABI, J

JUDGE OF THE HIGH COURT Page. 8