isdory theodore administrator of the estate of late bibiana sarafina vs mathew mtigumwe 2023 tzhc 22620 31 october 2023

A m THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB-REGISTRY) AT MOROGORO LAND APPEAL NO. 85 OF 2022 (Arising the decision ofMorogord District Land and Housing Tribunai at Morogoro in Land Application Case No. 114 of2018 delivered on 3Cf^ May, 2022) ISDORY THEODORE (Administrator ofthe Estate ofthe Late BIBIANA SARAFINA) APPELLANT VERSUS MAtHEW MTIGUMWE RESPONDENT JUDGMENT 31®' October, 2023 MJ.CHABA.J. At the District Land and Housing Tribunal for Morogoro, at Morogoro (the DLHT the appellant herein through Mr. Theophilius Theonest, learned advocate unsuccessfully sued the respondent via Land Application No. 114 of 2018 delivered on 30'^'^ May, 2022 for trespass into his land. In particular, the appellant sued the respondent claiming for the following orders: (a) That, the respondent, Mathew Mtigumwe be declared as the trespasser to the disputed land; (b) That, the respondent be estopped / precluded from selling or entering the disputed parcel of land; (c) Cost of the suit be provided for; and Page 1 of 16 (d) Any other reliefs that the District Land and Housing Tribunal for Morogoro, at Morogoro deemed fit and just to grand. At the height of full trial, the DLHT found that. One; The Appellant's / Applicant's Application and or claim over the disputed land had no merit and therefore, the same was right away refused.. Two; The respondent was declared to be the lawful owner of the disputed parcel of land located / situated at the Suburb of Gubi in the Village of Kiswira; Three; Permanent injunction was issued against the Claimant/Applicant (now the Appellant) to wit; was stopped or prevented from entering the land in dispute; and Four; The cost was positively awarded to the respondent herein. Aggrieved by the decision of the DLHT, the appellant / applicant at trial (Isdory Theodore) appealed to this Court on the following four (4) grounds of appeal. But before laying down these grounds of appeal, I find it pertinent to trace briefly the genesis of this appeal with a view to print out the clear picture of the whole appeal; / As gleaned from the Court records, on 3^^ July, 2018 the appellant / applicant filed a land dispute (Application No. 114 of 2018) against the respondent for trespassing over a parcel of land measuring two-third (2/3) acres located at Muangazi Kilabuni, Kiswira Matombo in Morogoro Rural District. It Was unveiled that, the alleged disputed parcel of land was firstly owned by the appellant's farther, the late Mr. Theodore Isdory since 1956. After.the demise of Theodore Jsdqry in 1972, it was alleged that, the disputed suit land Page 2 of 16 became irito bwnersHip of his sole wife, the late Bibiana Serafina Chuma who also died in 1997. According to the appellant's story, the disputed /suit land remained under the ownership / possession of the family Of the late Theodore Isdory and Bibiana Serafina Chuma, until when the appellant petitioned for letters of administration of the estate of the late Bibiana Serafina Chuma which eventually was granted to him on 21^^ May, 2018 by Matombo Primary Court via Shauri Ja Mirathi Na. 03 of 2018. It was further asserted that, the estimated value of the disputed suit land worth TZS. 10,000,000/=, However, the appellant's averment was contested by the respondent herein (Mathew Mtiguiriwe). It is on record that, the respondent told the trial DLHTthat he purchased the disputed land from so called,"Umoja wa Kinamama Kiswira''On November, 2017. To back up his contention, MatheW Mtigumwe tendered at trial one dOCumeht termed as Sale Agreement and the same was admitted and. marked as,"Exhibit Dl". The record further reveals that, in clefenpe>,lfie,.,responde disputed the value of the, disputed suit jand as it was .sta;ted to haye more than,10 million. He recounted that;, he purchased the alleged disputed suit land measured half(Va) acre from "U.rrioja yva; kinamama Kigvyira'',-. . : 'The evidence of the respondent, Mathew Mtigtin-!we among other Witnesses/ was backed up by the Said, "Umoja wa Kinamama Kiswifa'' as key witness V(/hose testimOriy shovvs that they'were given free the;disputed suit lahd by the deceased^ .Theodore Isdory since 1970's for conducting business of Page 3 of 15 seilinp.lQcaj brews. As at the culiriination, of the full trjal, the trial.DLHT decided in favour of the respondent and declared him as lawful owner of the disputed suit land. : As hinted above, the appellant / applicant (Isdory Theodore) was aggrieved by the decision of the DLHT, hence appealed to this Court clothed witll four grounds of appeal, vr: : ' 1. That,the triartfiburiai erred in law arid facts for failure to evaluate '' ' ' . the evidence'of the appellant and his witnesses thereby reaching erroneous decision. ■ .. , ,, , - ...2., That,,th in law and in fact by.folding, that the ,. iate Theodore Isdory surrendered the disputed land to non-existing organization known Umoja wa Akina Mama without any documentary evidence to prove the same. 3. That, the thai tribunal erred in law to invoke the doctrine of adverse possession without proof. 4. that, the triai tribunai erred in iaw and facts by using the judgment of probate course from Matombo Primary Court to reach its decision. Based on,the above grounds of appeal, the appellant prayed this Court to allow thei appeal,. quash the,d of the: trial Tribunal and .declare the appellant aTawful Owner of the disputed suit land. At the'hearing of the appeal, Mr.fheophilus Theonest, learned advocate appeared for the appellant, v^/hile Mr. Benjamini Jonas, also learned advocate Page 4 of 16^ enter|c).appearance/qr respondent; By;consensus, parties agreed to argue and dispose of the appeal by way of written submissions and both parties complied with the Court's scheduled Order. I ani mindful that, this being the first Appellate Court, It has a duty to rehear and re-evaluate the entire evidences adduced at trial and the whole c: proceedings and (may)come up with Its ov^yn findings even without considering the merits of submissiohs advanced by the parties if the interest of justice so demands. I had ample time to scrutinize the entire records and proceedings of the DLHT^for MorogorOy at Morogoro, Having gone through, the .same, I found sedpus errors or) these prpceedings w my view, it suffices;to dispose .of therinstan.t appeal v\fithout eyePy going into the details ;0f.the grounds of appeal and the parties'submissions in supportfor and against the instant appeal.Thus, in thispegard,.;!will howoverv.not reproduce what the learned £o.unsels;for the parties submitted:ln,:Suppprt.or opposltlon of the appeal,. > " V • As r: have stated; earlier/during:< my; thoroughly perusal of' the entire records^of;the trial DtHJ/f noticed or ^discovered'that the size,ofthe disputed suit land-was'hOt blearly discussed during the trial and detef'mined as weih In myCorisidered View,^smce the disputed suit land wasmdt clearly stated, then iri the'eyes Of the law, the trial DLHT bad no jurisdiction to entertain the land dispute .brqught befere jf.; The records of the trial DLHT shows/that, the aRpeIlant;(appljcaRt).averred jn^h.^^^ apRlication at paragraphrthree (i^ thpt, the disputed lend jS:p farm, mopsuring twor-third^: acres. Button his.part/thp " ' " """ ' ' ■ . ■ (5gge'5ofi6 ' ■ ■ - • a/,'-;'" respondent's evidence shows;that,.:he b half[Vi) of ah acre and not two- third (2/3) of the disputed land as it was alleged by the appellant (applicant). I find it pertinent to reproduce an excerpt from the applicant's application which clearly states that: - "Para 3. The location and address of the suit property is all . : : ; :: that parcel of land owned by the late BIBIANA vSERAFINA is; acre located at IVIuangazh Kyabunl,;. , . Kiswlra Matombo^ in . Horogoro rural"./[Emphasis..is. , , . It is on record'that,::when the matter was scheduled for hearing on 22""^ day October, ■ 2019, the trial DLHT;framed the foilowmg agreed issues for determination:"-''''' v? (a) Whether the land in dispute (farm comprising of 2/3) is a property of the late Bibiana Serafina". (b),;Whether(,the Tesppndent.has,unlawfully,trespass,ed started to . - , . . •!< . : TPn^ructhulldlngJn the suitland./fBqld is mine],..,. .. .,,0 ^{ ^ • On close scrutiny of the records adduced at trial, the same demonstrates that-'durih^'triaf thd'%pfeliahty'IsdoiV'Theddord Tdstified' as -AWl. While adducihg his teshmbhy before the Vidl regarding the disputed suit land, he narrated as follows: - - Page.5.of is:. .. r-... . ' ■? .'.a: "The suit land is located at Matombo Village, it is comprising of of an acre. The respondent has trespassed in that land and has started to fix beacons and steel bars in that iand."[Bold is mine]. Apart from the evidence of the appellant to contradict itself on the size and location of the disputed land, yet his witnesses who appeared in the trial DLHT to back up his testimony, gave evidence that contradicted the size of the disputed suit land. One among the v\/itnesses who appeared before the trial DLHT and testified was the appellant's sister one, Catherine Theodore who featuredr'3Sr;AW3^; Tl^e^-{record, reveals,further wasppross- examined.by d^e.Gounsel.'for the respondent,regarding the size of,the suit;land, heTesponded,,that^:, ■ :, ^ ; ■ '"The suit land'is'located at Kiswira. The suit , land is very ' 'big; I donl: know its measurements." ' . — : ■ .; , .Again,, t^^^ Igna.s KohelOvShows th^ to the, effect Wltland is Ideated at Kiswira Village within Matombo area. For ease of reference and better understanding, the evidence of AW2 was recorded and sounds as follows: ~ "The suit land is located at Kiswira Village withiii T feiiif iahtf 'is the'property Of ""^'Thdddord-Tsdbty his'vvifh 'Bibiana Serafin • Page 7 of 16 . :;V ^ •- :■ ■■ ^'-..v:i-' ^ .;! , Theodore Isdory got that land after being given by church of Roman Catholic." [Emphasis added]. From the above pieces of evidence, it is clear that the appellant and his witnesses did not clearly state or mention the size of the disputed suit land. On the other hand, it is apparent on records that, though the respondent did not mention or describe in hisivritten statement of defence the size of the disputed land, yet his testimony shows clearly that, he was not certain and clear over the size of the,pa reel- of jand be purchased. VVith these pieces pf evidence, evidently there is contradictipn as tp whether the disputed land purchased by the respcipdent herein .frpiin ,the said j^ikundl cha ..Umpja vye akina ff^ama .was half (¥2) ,an acre- or more than Vz ,or even, less than y2. For instanpe, the, evidence of ,PW1; one, ; Germana Peter Mpgella ; who was, the repre§entative;ef the:,wQmen.,grpup ("Urnoja'O and fully .participated in the sale transa^^tipn,,:Upon selling, the-parcel /Of land-pwned by the sajd wo.nien's group tpphe^xesppndent, lite the:appel!ent^ did not rnentipn the si^f of the disputed land sold to, the. respondent .The evidence adduced . by.pvyi ,(Germana Peter Mpgella) and capturedrfrpm the proceedings of the trials DLHT transpires that: ■ "t: '\ ' ' ■"" ''ui-.' ■ S;' - i, ^ ' "I know Mathew Mtlgumwe. .We sold him a club building "' ' " ■'and its sufroundihg'area..That cSiSb isiocated ■ and:vveSoldthatclub Building in the' - v.: ■; ■ T' ;;v Ji r-year-?20ly^Wesold■thatlahd■ legally arid we'have a salet - - ^ ' ' Page 8 of .l6 . 0^ agreement on that effect. We are the true owners of the Suit land because we have been owning that club since 1970. The suit land is legally owned by the respondent because he legally bought it from the owners. In the sale agreement,.I was the women's group chairman who signed on their behalf. I signed the sale agreement as the women's group chairman and as a witness". [Bold, is mine]. The record also trahsplres-that,(DVV2)-Pr0Sper Michael, testified as follows: - "I am ,a .farmer,frgrn Kisyyira.village, I was also. a village council .member, frgiri 2015 - ,2020., About the sale agreernent between the respondent,and Kikundi cha Umoja wa akina Mama, it was on 25/11/2017. The suit land Is '-ic ^havliig "ai tbtaf'of W aicre. The-suit iknd w^ • > ■ ■ Theodore Isdory, it shifted to Bibiana Serafina who gave it to the v\/omen group. Bibiana gave the suit area to the women group as owners of that area and to conduct their- business as well". More-over, ^1tlgumwe• jresipGnderit herein) testified in hiis eviddhcd lH chief as follow^: > - :- "Eneo jenye.mpogpro liko,!C,0!|! cha Kisw ya Morogoro,.Eneo lenye.mgogoro nilinunua kutoka Umoja wa akina Mama Kiswira tarehe 25/11/2017. Eneo Una kama V Page 9'6flS" • iiusu ekari, halijapimwa kisheria. Wakaii nauziwa hatukyweka ykubwa ila tuSipnyeshana mipaka. Mimi nilmziwa kilabii na eneo lake lote/' [Bold is mine]. Apart from the above contradictions of the evidence adduced by the parties herein and their witnesses pertaining to the size of the disputed suit land, again, I h^d ampie time to examine the respondent's sale agreement alleged to have concluded on 25/11/201.7 and tendered in evidence as "Exhibit Dl". For ease understanding, a substantial part of that agreement read in capitajjettei^es IpijOWS^-;.... ..-.p "HATI YA MAUZIANO YA ENEO TAREHE:25/11/2017 SISIUMOJA WAKINAMAMAKISWIRA,KWA HIARIYANGU MWENYEVi/E NIKiWA W Am^^ BILA KUSHAWiSHIWA NA MtU •' mMUyZIA ENEO LANGU NDUGU MA THEWJ. MTIGUMWE KWA THAMANIYA TSHS. MILIONIKUMI TU (10,000,000/=). ENEO HILO LIPO KITONGOJI CHA GUEI KUp/ CHA KJSWIRA. MNUNUZI AMELIPA FEDHA YOTE m HADAIWr. End ofquoting. From the a&\/6 ®facb agreement; it' lis clear'that the size of land purchased by the respondent worth TZS. 10,000,000/= was not disclosed in the saie- pgreement>datpd op 25/11/2017,; In..^m uj^ignpd:opinion, in as much as the i§if<§urhstahee^df'thls i^ conc^hed, it was erucia! for the trial Page 10 of 16 1j ^ I ••' ' ' QLHJ to prstlY/ asoe^^^ size of the disputed, iand before deolaring the respondent a lawful owner of the disputed suit land which its size was not clearly unveiled. As shown above, the contradiction of evidences over the size of the land in dispute are fundamental in this case as the same goes to the jurisdiction of the trial DLHT. :As gathered frbnarthe^evidence^ records, I may State that,, up to this jdnctdm; ib is apb^rent that> itis uhcdrtain whether the size of thb disputed land is (was).2/3-Of an acfd,'% of an acre or 72 of an acre. It follows therefore that, it was wrohg Torthe tfial Ghairperson to declare that, the respondent is a lawful owner of thecilSputeGl land measured 2/3 of an acre, while his testimony at trial DLHT;is,clea,r that/0!^i25/11/20217, he purchased the said-suit land measuring appro^imate|y;t6;rOfi an;aGre, ie.^ "kama riusu ekari" simply means that Tiike ha;ifv(^),3fV3:Ci'ev 5;,-, V o Lobkinp ^ at the Sale' Agreement/ the^ trial. Ghairpefsbh overlooked- the tertdered -Exhfbit.Dl'vHad she dlreded properly her'rriind-bn it/^lam sore She wodld ha\>e'di^Gvefed tbat> thesarhe did not certainly tiisclose the size-of the larid/pf:Opefty purchased^ by,the respondent on^'25/11/2017, and could have fOfmed"a differeht opinion. I think in my view that, the Chairperson could have plaGed,,herself jn a;bett§ppo§jtiQn,to deterrnine theiand dispute in terms of size^ could,vjapve/yisited the; mot.pnly important t)utelso mevitapie.J say ^.;becau^,v the.findings Hon., Chairperson suggested ' Page 11 of16::, ■" ■■ ■ ■■", ■ ■ - " that, the appellant failed to establish his case, while the issue touching the size of the disputed land was not properly framed. It is trite law that, where the subject matter of the suit is immovable property, the governing provision of the law is Order VII, Rule 3 of the Civil Procedure Code [CAP. 33 R.E. 2019] which categorically states that: "Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it and, in case such property '' cah^'be idehbhed % a' title humbef urider the Land : "^ - R^istratiomAct, the plaiht shall-specif/'sUcfrbtle ^number Applying the above guiding prbvision'of the" law 'in the matter under scrutiny, the appellant's pleadings at trial did not 'sufficiently describe the size of the land in dispute as required by the law under Order VII, Rule 3 of the CPC which mandatorily requires that, once the subject matter of the suit is immovable property, description of the property must be sufficiently adduced to identify:the said property,a,nd ,if such property^^ identified; by the.tittle number under the; Land Registration, Act,, and thp plaint shall specify such title nurnber,;-; V :v ffr V t:- ;FlGwing^from'the-abbve, it follows therefore that, no competent appeal wool#haveIstehvmed tn^L^^ No.>114 bf-2018:tdthis Cburtl As t the^wa^^fefwardy i havefdbcided to exercise my revisional poWersVested upon Page 12 of 16 me ujige;: section 43 and (2) of-The Land Disputes Courts^ActTlQAR;. 216 R.E. 2G19]to make good the irregularities for the interest ofjustice. Though the parties have not been given an opportunity to be heard on this facet and accordingly address the Court in respect of the irregularity, but I will take this course by placing reliance on the above cited provision of the law, which articulates that; , ^: , ;. i. - "Section 43 (1) - In addition to any other powers in that behalf conferred upon the High Court, the High Court: - (b) may in any proceedings determined in the District Land and Housing Tribunal in the exercise of its original, appellate or revisional jurisdiction, on application being made in that behalf by any pat^ or of its own motion^ If it appears that there has been an error material to the merits of the case Involving injustice, revise the proceedings and make such decision or order therein as it may think fit". "(2) In the exercise of its revisional jurisdiction, the High Court shall have all the powers in the exercise of its appellate jurisdiction."[Bold is mine]. It should be noted that, it is settled lav\/ that a point of law, especially the one touching the jurisdiction of the Court, can be raised at any stage of the proceedings, eveh dn'appeal ahd it caii bbTaised even by thd Court suo motu. Page 13 of is ..Ct T'.j" ; ' '.■v.;- r -o This view is based on the fact that/an issue of jurisdiction is a fundamental one and must be decided before the Court decides any other issue. This principle was underscored by the Court of Appeal of Tanzania (the CAT) in Richard Julius Rukambura Vs. Issack iMtwa Mwakajila and Another, Civil Application No. 3 of 20G4, at Mwanza, following its previous decision in Funuel Nanp.rs iMg(u;^da ;.ys,- Heirman Hantlri . Ng'unda and 20.Others, Ciyil Appeal N:0,;3 (AH unreportetl)^ v., , Further; the lay/ ispfear^that where the Court sitting to compose e^erdict discovers'a -serious irregularity in the-proceedings touching the' issue Of juriSdictibh/itTan'decide oh it^vvithout re-opening the pityceedm inviting parties td'^acldress it.a.|rt%he^ease-"bf^'RiChard^3uSius-Rukarnbyra -(supra) sucGinc% held inJter-afiaThet: V- :;:T . "On a fundamental issue like that of jurisdiction a court can suo motu, raise it and decide the case on the grblmd'''6f'j#isd!ctson 'Without even heiaHhg -.i- ^■■■ijarties;'i'-iirhphasls-adde^. -'"v; From what I have endeavored to demonstrate herein above, I have decided to nuiiify the pi^eedings ofThe 'DLHT and set'aside "the impugned Judgment and 6ecree1h Land Case No. 114'bf 2018. As the determination of this appeal resulted to a point of law raised by the Court suo motu,I order that each parly shall bear its own costs. 'p\ 'A'P:! - ii'-/-'': ^ ■" c''- " --K ■ ■ : ■■4, , .;:Page 14 of 16.. , ■ ■ ■ ■ ■ ' ■ - ' . If any paftVis M for his rights, he iS at liberty to file a fresh case in the competent tribunal subject to fulfilment of the mandatory requirement of the current law. It is so ordered. D%TED at MOROCsORO this 31=^ day of October, 2023. 0/C cO to 3: M. J. Chaba >- liimE ■■ ■■ V:. to - ■: Coisrts Ruling aeiivered under my hand and the Seal of the Court in Chamber's H. ';: f' ■; ,r ?■ r this day of October, 2023 in the presence of Mr. Theophilius Theonest, learned advocate for the Appellant and Mr. Benjamini Jonas, Learned advocate for the Respondent. L. B UJ Aq, DEPyWJ.EC3ISTR^R ,^.,.31/10/2023, . ftw vre C'ry^pui .v... -, ■,C:, V . ctrcp ■ Right of the parties to appeal to the Court of Appeal of Tanzania fully explained. rqURT^ L. B. Ityakidana T. Uj DEPUTY REGISTRAR v- 31/10/2023 Page 16 of 16