20151215 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA ATMWANZA LAND CASE APPEAL N0.16 OF 2015 rJ (From the Decision of the District Land and Housing Tribunal of Mara at Musoma Land Appeal No.334 of 2012 and original Ward Tribunal of Mcharo Ward in Application No.28 of 2012) JUSTINE NYAKWIBATA AND ANOTHER................APPELLANT VERSUS MANYAKI MWAMBARA .............................. RESPONDENT JUDGMENT OF THE COURT 22/10/2015 & 15/12/2015 GWAE, J. This judgment 1s ar1s1ng from the decision of Musoma District Land Housing Tribunal (DLHT) where the respondent Manyaki Mwambara was declared a lawful owner of area in dispute (estimated to be 3 acres or 1 3 / 4 hectares). The appellants who were initially . respondents were aggrieved by· the DLTH's decision dated 5th day of December, 2014 lodged their joint grievances in this court by way of filing a petition of appeal, essentially the appellants' petition is challenging the DLHT's decision in that it erred in law as the evi:ence adduced before the t r i a l ~ tribunal was in their favour as rightly decided by the ward '-../ tribunal for reason that the appellants had been in possession of the disputed land since 1981 up to 2010 V when the suit land was disposed to one Sikujua Mkone and therefore the 1st appellant had full right to sell the same It is pertinently important to start with brief background of the dispute between the · two sides, going through the record, it is evident that the 1st appellant- and the . respondent's mother Cmama mdogo"-aunt) were .living in the same village, the 1st appellant happened to marry the respondent's aunt (Tabu). During the marriage life between the 1st appellant and respondent's aunt, the 1st appellant's wife was invaded by the thugs/ culprits, who grievously injured her, she was eventually treated, after that criminal incident the . 1st appellant and his wife shifted their . residence to Mwanza . however they left buildings in the disputed land. It is also clear that immediately thereafter or . before the purported shift of residence, in 2010 the 1st appellant sold the land in dispute. to the said Sikujua Mkone (Mkome-2 nd appellant's daughter). It is also evident that the respondent initially filed an application before the trial tribunal against the re:pondents now appellants for ~ destruction of crops whose valuation was accordingly :_____, conducted on 7/10/2012 by an agricultural officer. The appellants and respondent appeared in person, unrepresented, During my preparation of this judgment I came to observe that the respondent's claim (destruction of crops on the disputed land) before the trial tribunal was not considered at all as well as status of the respondent in · regard to her capacity to sue for a land owned by her late mother, it is patently clear from the record that the respondent is a mere heir as well as the 1st appellant's wife (the deceased sister who is also grandmother of the respondent) to estate of the previous owner of the land in dispute. Meaning that even the 1st appellant's wife has right to inherit or any other heir interested in the deceased' s estate. That being my finding, I then felt compelled to invite the parties so that they can address the ·court (see Selcom Gami~g Limited v. Gaming Management (T) and Gaming Board of Tanzania (2006) T.L.R 2000, on these two issues, . namely, 'whether the respondent. has locus standi to claim back (to redeem her Jamily land) the disputed land originally ~ 3 owned by her late mother or if her.claim.of compensation for alleged destruction of crops was considered". Parties exercising their right of being heard, both sides told this court that· the respondent · had no letter of administration and that the respondent's claim of compensation was not resolved. The record speaks on itself that the respondent was complaining about destruction of crops but nowhere the same was adjudicated / determined. Court of law are always bound to grant what has been pleaded and not confining in matters not pleaded, to my considered view, even if the 2 nd appellant had procedurally purchased the suit premise yet he had no right whatsoever to destroy crops planted by another person as doing that is illegal and the same is calculated to taking law by his own hands _which could probably cause breach of peace. Hence evidence to that effect and determination thereof were necessary. even without appointment of administrator unlike to what the trial tribunal did. It is also vividly observed from the record that the respondent testified that the shamba in . question was owned by her late grandmother and that it was her aunt~ 4 who remained on the land 1n dispute after their grandmother had passed away, for clarity; part of her testimony is herein under reproduced: " Eneo hilo ni la mama yangu. na baada ya kifo cha mama alibaki mdogo wangu arnbaye sasa anaishi Mwanza hivyo mimi ndio ninayemiliki eneo hil" Having quoted and observed that the respondent is found to be a mere beneficiary of the deceased's estate, equally the 1st appellant's wife known by name of Tabu and or any other heirs if any. In law, it is very clear that after .a grant of probate or letters of administration, no person other than the person to whom the same has been granted shall have power to sue or prosecute any suit, or otherwise, act as representative of the deceased, · until . such probate or letters of administration shall have been revoked, (see section, 33. 34 and 71 of Probate Administration Act Cap 352 of R.E. · 2002). In case of alleged redemption of family land, any interested party, ·ought to have been appointed to administer the deceased' s . estate however in the instant~ 5 dispute · the respondent was after compensation for destroyed or damaged crops. Apparently, the respondent is observed·to.have no letter of V administration which justifies her to claim back her family land disposed of by 1st appellant, however on the claim of compensation for alleged destruction of crops as was· the case before the trial tribunal, she had locus standi to lodge the case. Looking at the evidence adduced by the parties in its totality and the trial tribunal decision which is to the effect that the 1st appellant and his wife occupied the land in dispute situating at the his mother in law, now deceased for quite long time, therefore had no right to sell that piece of land, the belonging of his mother in law (see page 2 of the typed judgment). I could find therefore the ward tribunal ultimately did _not address itself properly. While I am aware that long possession (more than 12 years) without interruption _amount to adverse p·ossession as rightly stressed in the case of Erizes Rutakubwa Vs.Jason Angeto ( 1983) TLR Where it was precisely stated that: tttttttTt;-~- 6 'The customary of Limitation of redeeming clan shamba is• 12 as given by the customary (Limitation of proceedings, Rules as applied by Law ,~__.: of Limitation Act, 1971' In our present case, I am of the firm view, in the circumstances of this case, issue of capacity to sue (locus standi) ought to be looked as correctly observed by the trial tribunal however at the conclusion "it erred by confining itself on limitation of time, if the issue of locus standi were found in affirmative then the ward tribunal would ascertain if customarily and in law th'e 1st appellant could be entitled to dispose of the land in question belonging of his deceased . mother in law notwithstanding that more than .12 years have elapsed bearing in mind its finding that the 1st appellant was occupying land owned by his mother in law (mother of his wife). That said and observed, the proceedings conducted before th~ ward tribunal in dispute on pie_ce of land, its decision as well as that of District Land and Housing Tribunal are hereby nullified, matter/ dispute on claim of compensation for alleged destruction or damage of crops to be retried by a court/tribunal ~ompetent jurisdiction Im, 7 ~ (both pecuniary and territory jurisdiction). Given the ,' circumstances surrounding the dispute, each party shall bear its own costs incurred in this appeal and those incurred at the landtribun~below . j i . .· .. SJ!~ ISf1 '2/2/JIS Right of appeal explained. IS/12/2/JIS 8