juma lusubula vs masolwa dungusulu lusibula administrator of the estae of dungusulu lusubila 2022 tzhc 14859 28 november 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY) AT MWANZA LAND APPEAL NO. 24 OF 2022 (Arising from the District Land and Housing Tribunal for Mwanza at Mwanza in Land Application No. 17/2016) JUMA LU SI BU LA-........................................ -................................... APPELLANT VERSUS MASOLWA DUNGUSULU LUSIBULA ^Administrator ofthe estate ofDUNGUSULU LUSIBULA}------------------------- RESPONDENT JUDGEMENT Nov. 8h & Nov. 28h, 2022 Morris, J This appeal has been preferred under five grounds presented below. The appellant and respondent are relatives. The appellant is the respondent's paternal uncle. That is, the respondent is the son of the appellant's brother. Both parties are administrators of estates of their respective late fathers. That is, whereas the appellant is the administrator of estate of late Lusibula Dundusulu Manga; the respondent's administration is in respect of late Dungusulu Lusibula's estate. The latter accused the i appellant of invading the respondent's family land. Obviously, the appellant joined issues with his nephew. They consequently ended up in the District Land and Housing Tribunal for Mwanza (DLHT) under application number 411 of 2020. The same was determined in the applicant-respondent's favour. Aggrieved by the subject outcome, the appellant has come to this court with the five-ground appeal. The grounds are as follows: 1. The trial tribunal erred in law to decide in favor of the respondent who had no locus standi. 2. The trial tribunal erred in law by deciding basing on annexures which were not tendered as exhibits. 3. The trial tribunal erred in law and facts on accepting the evidence of the respondent which was not in line with the pleadings. 4. The trial tribunal erred in law and facts by not considering the evidence of the appellant. 5. The trial tribunal erred in law for departing from the opinion of assessors without stating reasons thereof. 2 The appellant enjoyed the representation from Ms. Judith Nyaki, Learned Advocate, while the respondent appeared in person - unrepresented. The respondent also filed a preliminary objection (PO) against the appeal. Consequently, parties successfully obtained leave of this court to simultaneously argue both PO and appeal by way of written submissions. Whereas parties complied with the scheduled pattern of filing their respective submissions, the respondent did not file submissions in support of the PO. Accordingly, the appellant did not file any reply. From the outset, I hold that failure by a party to file submissions as ordered by the court, is equivalent to failure to prosecute one's matter. Thus, the PO is hereby dismissed for want of prosecution. Arguing the appeal, the appellant's advocate prayed to abandon ground number 3 of the appeal. Hence, she submitted in favour of only four (4) remaining grounds. Regarding the 1st ground, the learned counsel faulted the trial tribunal for entertaining the matter in favour of the respondent who lacked the requisite locus standi. She was emphatic that throughout the trial, the respondent presented himself as the legal representative/administrator of estates of late Dungusulu Lusibula. But no evidence was produced to 3 prove such legal status. She made reference to pages 12-17 of DLHT's proceedings. To her, it was fatally irregular for DLHT to decide in favour of a person who, in law, was not entitled to prosecute the case in the first place; leave alone to be declared the winner. The Court was referred to the case of Ramadhani Omary Mbuguni v Ally Ramadhani, Civ. Appeal No. 173/12 of 2021 (unreported) and sections 71 and 100 of the Probate and Administration of Estates Act, Cap 352 R.E. 2019. In countering this ground of appeal, the respondent submitted that he filed and pursued the suit in the legal representative capacity of the estates of late Dundusulu Lusibula per the applicable law. Reference was also made to the case of Omary Yusuph v Albert Munuo, Court of Appeal Civil Appeal No. 12 of 2018 (unreported). For the 2nd ground, it was the appellant's argument that DLHT decided the case basing on evidence which was not formally tendered as exhibits. That is, in arriving at its decision, the trial tribunal considered and used annexures which were not subsequently tendered as exhibits. Referring to pages 5-6 of DLHT's judgement, the appellant submitted that the Chairperson of the tribunal is categorical that his decision based on scrutiny 4 of annexures attached to the application ^vielelezo vilivyoambatanishwa kwenye shauri hill}. In her Counsel's view, the respondent and/or his witnesses should have tendered such annexures during the trial subsequent of which the documents would have turned into exhibits fit for tribunal's eventual analysis and application in the decision making. She accordingly associated herself with the Court of Appeal's holding in Ismail Rashid v Mariam Msati, Civil Appeal No. 75 of 2015. The respondent, refuted his opponent's submissions. According to him, the crux of the dispute was trespass to one's land, mixing in its boundaries notwithstanding. Hence, to him, it is the appellant who failed to establish how the land in dispute was his late father's estate. The 4th ground of appeal relates to analysis of evidence. The appellant is faulting the way DLHT allegedly ignored the appellant's evidence. To her, the evidence used by the tribunal was full of contradiction in terms of the size, boundary and the sale agreement of the suit land. Pursuant to Saium Mhando k/?(1993) TLR 170, the appellant's Counsel prayed for this Court's intervention in analyzing the evidence of parties as produced at the tribunal. The respondent, however, maintained that DLHT's findings are justifiable 5 because the evidence available on record were ably evaluated, analyzed and applied per the law. In respect of the last ground, the appellant submitted that the Chairperson of the tribunal differed with the assessors' opinion without giving reason(s) for such departure (page 7 of the judgement). To the appellant, this anomaly is illegal. I was referred to section 24 of the Land Disputes Courts Act, Cap 216 R.E. 2019; and Peter Makuri v Michael Magwegwe, Court of Appeal Civ. Appeal No. 107 of 2019 (unreported) to justify the appellant's position. Countering this ground and submissions thereof, the respondent argued that the tribunal Chairperson is not bound by the assessors' opinion. Further, to him, the administration of estate and disputes arising therefrom are legal matters falling outside the assessors' expertise. Accordingly, the Chairperson was justified to differ with them. Contrary to the appellant's prayer for allowing the appeal, the respondent prayed that this appeal should fail with costs. From the above contentious submissions, this Court should determine three issues. Firstly, the respondent's legal mandate in this matter; secondly, 6 the tribunal's evaluation and application of evidence before it; and thirdly, legitimacy and value of assessors' opinion. In answering the subject issues, the court will, to some extent, take the form of rehearing because this is the first appeal. In law, the first appellate court retains the mandate to re­ appraise, re-assess and re-analyse the evidence on the record before it arrives at its own conclusion(s). This position is reiterated in the cases of Paulina Samson Ndawavya v Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017; and Kaimu Said v Republic, Criminal Appeal No. 391 of 2019 (both unreported). In the latter case, the Court of Appeal at page 7 states that; ' We understand that it is settled law that the first appeal is in form of a re-hearing as such the first appeal court has a duty to re-evaluate the entire evidence in an objective manner and arrive at its own finding of fact, if necessary.' I will start with the ground about the legal capacity of the respondent in this matter. That is, his locus standi. The appellant is strongly inclined towards overturning the DLHT's decision on the basis that the applicant­ respondent did not prove that he was legally appointed to administer his late father's estate. Consequently, he had no requisite legal mandate to file and 7 prosecute this case. With respect, I hold that this ground lacks merit. In my view, there are not less than three reasons to justify such holding. Firstly, before the tribunal, the respondent pleaded being the administrator of the Dundusulu Lusibula's estate and that he was suing under such capacity. He, indeed, attached the letters of appointment (Form No. IV) under paragraph 6(b) of the application. Whereas it is certainly a good practice to prove the capacity during hearing, the position of law is that pleading and attaching such instrument suffices. In the case of Ramadhani Omary Mbugunis case [supra) the Court of Appeal held at page 4 that; 'It is now a settled law that, where, /ike the instant case, a party commences proceedings in representative capacity, the instrument constituting the appointment must be pleaded and attached, failure to plead and attach the instrument is fatal irregularity which renders the proceedings incompetent for want of the necessary standing.' Guided by the foregoing holding, this Court finds that it is not mandatory to tender the document conferring the subject legal status to the applicant. That is, a party satisfies this requirement by pleading such fact 8 and attaching the necessary credential to the pleadings. Secondly and connected to the above reason, the respondent, through his written statement of defence (WSD), acknowledged the appellant being the administrator of the estate under discussion. Under paragraph 12 of the said WSD, the respondent is unmistakably averring that "contents of paragraph 6(b)(i) and (ii) are noted". In essence, whatever is admitted by the party calls for no proof from the opposite litigant. That is the law. Moreover, parties to a suit are bound by their pleadings. Reference is made to the cases of The Registered Trustees of Islamic Propagation Centre (IPC) v The Registered Trustees of Thaaqib Islamic Centre (TIC), Court of Appeal (Mwanza), Civil Appeal No. 2 of 2020; Lawrence Surumbu Tara k. The Hon. Attorney General and 2 Others, Civil Appeal No. 56 of 2012; Charles Richard Kombe t/a Building v. Evarani Mtungi and 3 Others, Civil Appeal No. 38 of 2012 (all unreported); and James Funke Ngwagilo v. Attorney General [2004] TLR 161. Hence, to raise such matter at the appellate stage, the appellant falls in the trap of doing so on an afterthought basis. Such argument cannot stand the test of justice. Thirdly, according to section 69 (1) (c) and (e) of the Evidence Act Cap 6 R.E. 2022, the court is duty bound to take judicial 9 notice of the seal of the court and signature of persons holding public offices. Also, per section 58 of the Evidence Act, matters for which judicial notice is taken need not be proved. Further, section 89 (1) of the same statute reinforces on genuineness, truth and authenticity of such documents. Therefore, so long as Form No. IV annexed to the application bore the seal of Misungwi Primary Court; the signature of magistrate was appended thereon; and the respondent- appellant admitted such fact in his pleadings; all that suited to prove that the respondent had the obligatory locus standi to sue. Consequently, the first ground is dismissed for want of merit. The second and fourth grounds of appeal relate to the second issue drawn above; namely, whether or not the tribunal justly evaluated and applied evidence before it. The gist of the former ground is that the trial tribunal erred in deciding the case by using annexures instead of formally tendered and admitted exhibits. To the appellant, transforming annexures into exhibits through a definite legal procedure is not optional. I agree with the appellant's Counsel on this general rule that annexures are never evidence. io Further, the law enjoins courts to decide matters adjudicated before them basing on evidence properly received. According to order XIII Rule 7 (1) and (2) of the Civil Procedure Code [Cap 33 R.E. 2019]; only documents admitted in evidence form part of the record. This provision is resonated in Abdallah Abass Najim v Amin Ahmad Aii[2W6\ TLR 55; and Japan International Cooperation Agency (JICA) vs. Khaki Complex Limited, Court of Appeal Civil Appeal No. 107/2004 (unreported). The latter case reinforces, at page 14, that a document not admitted in evidence "cannot be treated as forming part of the record although it is found amongst the papers on record." In the instant appeal, the trial chairman is holding at page 5 of the DLHT's judgement that he carefully evaluated and analyzed both testimonies and attachments to the suit {'Nimepitia kwa umakini mae/ezo na vielelezo vi/ivyoambatanishwa kwenye shaurT). While I hold no problem with oral testimonials therein, reference to attachments (without stating which one's in particular) is, to me, somewhat critical. Hence, the trial tribunal is accordingly faulted. It is imperative that whoever is reading the DLHT's judgement should be made able to know or identify which exact attachment the tribunal used in arriving at the legal conclusion. ii However, a thorough and objective interpretation of the phrase used by the Chairperson, leads this Court to hold the view that the tribunal was justifying that the respondent had locus standi to claim (' wana haki ya kudai shamba hi/o). That is, DLHT is not being committal. It would certainly be a different case if, for instance, it held that by using the available credentials the suit land is declared as to belong to the applicant-respondent. Thus, in view of what the Court has already found in respect of the first issue above; and mindful of the fact that the only documents attached to the application relate to the respondent's legal capacity; ground two is not sustained. Regarding the fourth ground of appeal, the appellant alleges that his evidence was not utilized. As I pointed herein above, this Court is seized with adequate mandate to re-appraise, re-assess, re-analyse and reapply the evidence on the record. It should be noted here that, in civil cases all facts need to be proved on balance of probabilities by the alleging party. Reference is made to the cases of Antony M. Masanga vs. Penina (Mama Mgesi) na Lucia (Mama Anna), Court of Appeal Civil Appeal No. 118 /2014; Paulina Samson Ndawavya v Theresia Thomas Madaha, 12 Court of Appeal Civil Appeal No. 45 /2017 (both unreported); and Obed Mtei v Rakia 0/nar/'[1989] TLR 111. According to the evidence of the respondent at the trial court, his late father bought the suit land from one MASELE KAGEHE at Tshs. 6,000/= Then, his family was using the land for agricultural activities undisturbed until when his father died. It was also testified that in 2004, the properties of late LUSIBULA DUNGUSULU MANGA (respondent's grandfather and father of the appellant) were distributed among the heirs while the respondent's late father was still alive. He stressed that the suit property was not the subject of division in the probate administered by the appellant because the same did not belong to LUSIBULA DUNGUSULU MANGA. However, the respondent conceded not having been present when the suit land was bought by his father. Further, evidence by PW2 - who alleged to had witnessed the sale of the suit shamba (farm), is not only contradictory with the evidence of the respondent but also inconsistent with the pleadings. For instance, according to the pleadings, the suit land was bought by the respondent's late father on 1964 the year which was not supported by PW2. The latter testified to the effect that the same was bought on 1977. 13 On his part, the appellant led evidence to the effect that the farm/shamba was bought by his late father (late LUSIBULA DUNGUSULU MANGA). And that the suit land was being used by the buyer and his two other siblings. The said evidence was supported by DW3 and DW4 who gave credence as to the history of acquisition of the suit land by the appellant's father. In principle, this evidence remained unchallenged by the respondent during cross-examination or howsoever. The law is clear in respect of unchallenged evidence. In principle, when evidence is left unchallenged during cross examination, it is believed as being the truth. Reference is made to the case of Patrick WiiHiam Magubo v Lilian Peter Kitari, Court of Appeal Civil Appeal No. 41 of 2019 (unreported). Further, the appellant demonstrated that he was in process of distributing the suit premises to the beneficiaries including the respondent (on behalf of his late father); an indication of the appellant's objective motive in administration of his late father's estate. Hence, on balance of probabilities the probative value in the appellant's set of evidence is on the higher side than that of the respondent. Subsequently, had the trial tribunal evaluated the evidence of parties on such scale, it would have, as I hereby do, arrived 14 at a different holding. The fourth ground of appeal has requisite merit. It is accordingly allowed. As to the last ground of appeal, it is true, as argued by the counsel of the appellant, that the trial tribunal did not record any reason for departing from the opinion of assessors. Legally, this is fatal. Therefore, the trial tribunal erred in law by departing from the opinion of the assessors without giving reasons in line with section 24 of Land Disputes Courts Act, Cap 216 R.E. 2019. Further, in the cases of Dr. Clemence Kalugendo v Peter Andrew Athumani, Court of Appeal (Dar Es Salaam), Civil Appeal No. 92 of 2018; and Zubeda Hussein Kayagaii v Oliva Gaston Luvakuie & Tanu James Gwoma, Court of Appeal (Tabora) Civil Appeal No. 312 of 2017 (both unreported), the importance and role of assessors together with the rationale of giving reason of departing from assessors' opinion is re­ emphasized. In clear terms, in the latter case it was held that; 'Additionally, before the Chairman reaches the final verdict, he is supposed to consider the opinion of the assessors though not bound by it but should give reasons for such differing with such opinion.' 15 r In the upshot, the appeal partly succeeds. Grounds 1 and 2 lack essential merits and are accordingly dismissed. However, the 4th and 5th grounds are merited. Henceforth, the Court allows the appeal to the extent of quashing the decision of the District Land and Housing Tribunal for Mwanza and setting the orders therefrom aside. The suit land is accordingly declared to belong to the estate of late LUSIBULA DUNGUSULU MANGA which is under the appellant's administration for onward distribution to the beneficiaries in accordance with law. Each party will bear own costs. Judgement delivered in the presence of Ms. Judith Nyaki, learned advocate / 16