20181231 TZHC Mwanza2

IN THE HIGH COURT ()f TANZANIA AT MWANZA LAND APPEAL N0.87 OF 2017 (From the decision of the District Land and Housing Tribunal of tarime District at Tarime, in Land Case No. 51 of 2016} JAMES RYOBA WAI NG'ARI ........................................ APPELLANT VERSUS LAURENT BOKEYE MANGWAIGA NYABLANGETI. ..... RESPONDENT JUDGMENT Hearing concluded ..... 23/10/2018 Judgment delivered .... 31/12/2018 Gwae, J In the District Land and Housing Tribunal for Tarime at Tarime -- -~----- (DLHT), the appell_a_nt _filed-the -land dispute-against -tt,e respondent. The applicant claimed that the respondent forcibly encroached his piece of land which he had been given by his later father Waing'ari Marwa who passed away in the year 1999 Before -institution of this dfspute, -the respondent accused the appellant and 9 other persons, applicant-co-villagers with an offence of malicious damage to property ( crops planted in the land in dispute land), the applicants and nine other villagers were then charged with four counts~- 1 under the same offence in the Tarime District Court and they were convicted of the offence vide Criminal Case No. 423 of 2012 on the 6th August 2013. Eventually they were sentenced to a term of four years jail in the 1st, 2nd and 3rd count. However the appellant's conviction, sentence and ancillary order of compensation were quashed and set aside by the Court of Appeal vide Criminal Appeal No. 475 of 2015 filed by the appellant, whose judgment was delivered on 12th Dec. 2018. While the appellant was in prison custody and then serving his sentence, early 2013, the respondent made several applications to village authoritiy-Kubiterere village for formal allocation or approval of ownership of the suit land and finafly he was issued with letter of offer dated 5 th April 2013 for estimated 35 acres. Upon completion of the custodial sentence, the appellant lodged his complainants over th~ suit to executive authorities, including District Commissioner, with a view to arrive at mutually acceptable solution but his efforts went in vain,· consequently the appellant on 9th September 2016,. opted to filing of the present dispute against the respondent. During trial both parties were accorded an opportunity to argue their case, each side was able to bring a total of five witnesses. At i t s ~ 2 'I @ conclusion, the DLHT gave its verdict in favour of the respondent on the ground that the appellant had failed to establish how he inherited it from his late father and or if he was an administrator. of the estate as opposed to the respondent who tendered formal allocation letter by Sirari Village Land Allocation Committee in 1994 (DE3) Feeling aggrieved by the DLHT's decision, the appellant filed this appeal listing four grounds of appeal but ground 3 and four are the same, hence remain three grounds to wit;- i. That, trial tribunal erred in law and fact by deciding that the disputed land belongs to the respondent in this appeal while there was enough evidence that the same belongs to the appellant after he inherited from his late father in 1986 ii. That, trial tribunal erred in law and fact to state that the appellant never _tendered any document to prove how ·the appellant inherited the suit land and that the trial tribunal failed to visit locus in ·quo iii. That, the Tribunal totally failed to handle the matter as it apprehended that the respondent was allocated the land in dispute in the year 1994 by Sirari village Land Allocating~ 3 Committee while the land in dispute is at Kubiterere Village. There was no law allowing a village to allocate land of other village. The respondent's reply to the appellant's memorandum of appeal is to the effect that, the trial tribunal decision ·is legally founded as the evidence of the respondent was stronger while that of the appellant was contradictory, not clear if the land in question was supervised by the appellant or his brother Mwita Wang'ari. According to the respondent the appellant had no locus standi. The respondent also attacked the 2nd ground in that it was upon the tribunal to decide to either visit or refrain from visiting. During hearing of this appeal, the appellant appeared in person and he reiterated what is contained in his memorandum of appeal as depicted above where as th~ respondent' had representation of Mr. Butambala, the learned senior advocate. Mr. Butambala sought for consideration of his reply to the memorandum of appeal however he added as follows; that appellant has no locus standi as he conspicuously stated that the land in dispute to be a family and failed to produce letters of administration· and that t h e ~ 4 l 1 ,j :1 ·,1 ;j- 8$ respondent was procedurally granted/ allocated the land in question (35 ·, acres) by proper. In the 1st ground of appeal, I have failed totally to understand if the appellant meant that he inherited the land in dispute in 1986 as appearing in his petition of appeal or he was given by his late, Waing'ari Marwa in the year 1998 as appearing in his application at paragraph 6 (ii) or he had filed the dispute representing his family and evidenced by him during trial ("yes the suit land belongs to our family and I am the elder son") In th.e circumstance of this case, I am compelled to find that documentary evidence authorizing the appellant to institute a case on behalf of the family ·of the late Waing'ari Marwa was necessary as was noted by the trial tribunal. In Lujuna S~ubi Ballonzi Senior av. Registered Trustees of Chama Cha Mapinduzi (1996) TLR 203, this court (Samatta, J as he then was) made an attempt to define the term locus standi as follow; "Locus standi is governed by common law according to which a person bringing a matter to court should be able to show that his right or interest has been breached or interfered with. The High Court has the power to modify. the applied common law so as to ~ make it suit local conditions." um,,~ 5 -' According to the evidence on record, it goes without saying that the 0 appellants' father is no longer alive; thus under ordinary circumstances one to sue or be sued in the estate of the late Waing'ari Marwa is an administrator or executor as the case may be. In this particular case, the issue of· locus standi had been raised seriously during trial, confusingly; the PW4, Hellena w / o James testified that the suit land belong to Waing'ari Mwita, her father in law and that the one who was appointed administrator is his brother in law, for sake of clarity part of he testimony is reproduced herein; "The suit land belongs to Waing'ari family and the suit land was supervised by my brother in law MWITA WANG'ARI Yes there was a meeting of choose (sic) Mwita Wang'ari as the administrator of the deceased estate of my father in law, yes there is minute" According to the pleadings and .evidence adduced before the trial tribunal, the appellant, in the circumstances, was supposed to produce necessary documents or .show at least he was appointed by the family of the late Waing'ari Marwa to represent, or if the appointment of Mr. Mwita, the appellant's young brother was rescinded by clan members or a court of law, evidence to that effect was to be adduced. In this case it i s ) ~ 6 - ,tt) even worse since the said Mwita Waing'ari did not testify or the DLHT ought to have stayed proceedings to wait for appointment of administrator. In the light of the reasons and submissions by the respondent' counsel, I find that the appellant's status to sue was questionable. I am of the formed opinion that by letting the appellant to sue in his own name may be prejudicial to other deceased's heirs taking into account that the one who was said to be chosen an administrator was said to be Mwita . Waing'ari. What will be the position of other heirs, if any, in respect of the land in dispute? Obviously, the sought declaration might yield other disputes between the decea.sed's heirs and· the appellant? As to the 2nd ground, particularly, in the complained failure to visit the locus in quo by the trial tribunal, I have looked at the evidence adpuced by both sides in respect of the suit land and observed that the· parties were at variety regarding size of the land in dispute as the appellant is disputing over 40 acres out of 240 acres while the respondent is lucidly claiming for 35 acres to his lawful property. In Nizal v. Gulamali · (1980) TLR 29, the Court of Appeal held among other things that; 7 Q'j) "Where it is necessary or appropriate to visit a_ locus in quo the court . should attend with parties and their advocates, if any, and such witnesses as may have to testify in that. .. " Though _visitation of locus in quo is discretion by the DLHT and the parties or their advocates, in our present dispute, looking at the nature of dispute, it is not surveyed and the facts surrounding the case, namely; old and newly established village boundaries suggest that it was appropriate to visit the locus in quo by the trial tribunal. I have also noted an anomaly as to admission of the respondent's documents and rejection of the appellant's document. The record reveals that the appellant wanted to produce a letter of offer on the 19th June 2017 but the same was rejected on the ground that it was a mere copy -----however-Jhe-app~llant-was-given~a~leave-to~tender:::it'.on:the"foHowing~-date. of hearing. It is however clear that on the following date the tribunal did not indicate if the appellant produced the original or not (see proceeding dated lih July 2017 at page 23 of the typed proceedings). On the other hand the respondent's documents were deemed received but none are either certified or original. Hence the appellant's copy were bad as far as evidential value is concern as those of the appellant but only the appellant's document was not received. It must b e ~ 8 ti:fJ known that annextures are not evidence to act upon as was authoritatively held by the Court of Appeal in Sabry Hafidhi Khalfn v. Zanzibar y Teleco. LTD (ZANTEL), Civil Appeal No. 47 of 2009 (unreported) that: "But in our case there is no evidence on the record to indicate that the respondents were registered voters. The record contains · annextures. It is trite law that the annextures are not evidence for the court of law to act and rely upon Having answered the 1st and 2nd ground of appeal as herein above, I therefore find no need to be curtailed by the third ground appellant's appeal above. In the light of the reasons given herein,· the proceedings and decision of the District Land and Housing Tribunal for Tarime at Tarime are quashed . and set aside~ Parties are at liberty to lodge an application afresh, the appellant if still desirous has to be appointed administrator and eventually obtains letters of administration. In the event the respondent files a dispute he has to ensure that he sues a competent person. In the. circumstances of this case, each party shall bear his own costa It is so ordered.