20160623 TZHC Mbeya

I

IN THE HIGH COURT OF TANZANIA

ATMBEYA LAND APPEAL NO 56 OF 2015 (From the District Land and Housing Tribunal for Mbeya Application Land Case No 148 of 2014) JU1VIA Nci-L.J11LJIT.ALA......................................... APPELLIAN'I'

VERSUS ASHURA NGULUVALA ......... l' RESPONDENT JA.}'I1 H4'I'IBU .................. 2ND RESPONDENT SADICK IIA'l'IBIJ ................................. 31D RESPONDEN1 WAZIRI NGAVERA ............................. 4TH RESPONDENT BURUHANI HATIBU ............. 5TH RESPONDENT

JUDGMENT Date of Last Order: 20.4.2016 Date of Judgment: 23.06.2016 Dr. Mambi, J. The appellant, unsuccessfully sued the respondents in Application No 148 of 2014 at the District Land and Housing Tribunal for Mbeya. Before the trial Tribunal the appellant claimed to be declared as the owner of the suit land against the respondents. After a full trial, the appellant's evidence remained wanting where the decision was made in favour of the respondents. 1 The appellant was dissatisfied with that decision and appealed to this court by filling memorandum of appeal comprised of four (4) grounds as follows: That the District Land Housing Tribunal erred in point of law and fact to hold that the disputed land is 66 acres while in reality, the Appellant claims only 40 acres. That the District Land Housing Tribunal erred in point of law and fact to hold that the disputed land belongs to the first respondent while the evidence which was not challenged during hearing shows that the Appellant cleared a virgin land in 1970 and continued to utilize it without interruption up to 2014. That the District Land Housing Tribunal misdirected itself when it held that the Appellant had no cause of action against the 2nd, 3rd , 41h and 51h respondent while they are the one who are in fact cultivating and enjoying the fruits from the suit property. For unknown reasons the visit at the locus in quo did

not involve counsel from both sides and this was prejudicial to the Appellant case because the testimony of the 1st respondent at locus in quo was not tested by XXD. The appellant prayed this court to allow his appeal with costs and reverse the decree of the District Land and Housing Tribunal. It is apparent on record that the appellant has been uninterruptedly using and occupying the suit land in dispute since 2 1970's. The records shows that the Appellant transformed the suit land from virgin bush and developed it into a land farm for crops such as maize and paddy cultivation till sometime November 2014 when the respondents forcefully trespassed into the land with the claim that the suit land was among of the respondent's deceased father estate. It was the concern of the appellant that the respondent already obtained their shares from the Estate of one Athuman Nguluvala way back in 1976. The appellant asserted that the land which was subject to be administered was located at Lyengero Changani but the suit land is located in another village called Ikanutwa. At the trial Tribunal, the 1st respondent and other respondents contended that the disputed land belonged to their deceased father who passed away in 1976. They alleged that the first respondent was appointed as adminstratix to administer and distribute the estate of their deceased father and she actually distributed the

land to all heirs except an appellant who refused to be part of beneficiaries. In the final disposition the trial tribunal observed that the evidence presented by the appellants' side was unfound that the appellant failed to prove the claim thus the decision ended in favour of the respondents. When the matter was scheduled for hearing at this court Mr. Mushokorwa and Mwakolo, the learned Advocates for both parties agreed to dispose the matter by way of written submissions. 3 Looking at ground one, Mr. Mushokorwa submitted that the trial tribunal wrongly held that the disputed land with an area of 66 acres while application lodged by the appellant clearly pointed out that the suit land was only 40 acres. The learned Advocate also observed that it is a common knowledge that Athumani left behind a estate composed of cows and land and the same were distributed to the legal heirs way back in 1976. From all the evidence according to Mr. Mushokorwa, the trial tribunal misdirected itself on the location and description of the land in dispute. The appellant claims his 40 acres land located at Ikanutwa which is 5 kilometers far from the 66 acres located at Jengela. Submitting in ground two, Mr. Mushokorwa averred that the tribunal was not justified to ignore the evidence of PW2 and PW3 due to the fact that inconsistences in their testimonies were very trivial. With regard to the third

ground, the learned Advocate told this court that all the respondents were liable to their acts as they invaded the land of the appellant. In his last ground of appeal (4) the learned Advocate submitted that the appellant was denied the right to cross examine the 1st respondent at the locus in quo. Replying to the above submission, Mr. Mwakolo vehemently contended that the purported 40 acres are within the 66 acres. The whole suit land belonged to deceased Athuman Nguluvala. Mr. Mwakolo was of the view that the appellant wrongly instituted 4 Application No 148 of 2014 instead he could have filed objection proceeding at the Primary Court. Mr. Mwakolo further submitted that PW2 and PW3 were not / reliable and credible witness as they were not yet born in 1970 hence their evidence which is just mere hearsay could not be relied upon. Responding to ground three of appeal, Mr. Mwakolo argued that the other respondent have nothing to do with the appellant claim except the 1st respondent who distributed the suit land other respondents. The learned Advocate for the respondents finally submitted that the parties were at the locus in quo but still they did raise a concern of not cross examining a witness. Mr. Mwakolo is of the opinion that such irregularity if any can be cured under 45 of the Land Disputes Courts Act, No 2 of 2002. I have carefully gone through and considered the evidence

on record and the submissions for the Learned Advocates from both sides. The complaint in the first ground of appeal is to the effect that the trial tribunal erred in holding that the 40 acres and 66 acres of land are one and the same. Mr. Mushokorwa was of the view that the trial tribunal misdirected itself on the location and description of the land in dispute. According to him the two pieces of land are distinguishable in the sense that the 40 acres are located at Ikanutwa and the other 66 acres are found at Jongelo. The distance between them is 5 kilometers. It is apparent.on the records that the appellant was among of the witnesses who testified on 27.12.2013 in Probate Cause No 48 of 2013 at Rujewa Primary Court. The appellant told the trial Court 5 that the deceased Athman Nguluvala left a number of properties including cows, home utensils and farm land and his words are quotedas follows:- "Marehemu aliacha mifugo ng'ombe vitu vya ndani, nguo na mashamba. Ng'ombe na vitu waligawana isipokuwa mashamba maana watoto walikubaliana wasigawane. Mashamba hao sasa yapo mikononi mwangu kwa kuwa mimi ndio mkubwa Mimi nakubaliana awe msimamizi mimi ni mjukuu tu". Reading along the lines of the above words of the appellant, those words as testimony clearly depictthat that appellant was until 27.12.2013 in possession of the deceased land entrusted to him by the respondents. Following

the same line of thinking, the evidence is well so selling that the land was under possession of the appellant and he was entrusted by the respondents on their behalf. The evidence from the records clearly shows that after the appointment of the 1st respondent to be Adminstratrix of the estate of the deceased Athuman Nguluvala, the appellant retreated from cooperating with other relatives including the respondents in distributing the deceased estate. Consequently, the appellant opted to lodge Land Application at the trial tribunal. What appears to be suspect and wanting is the whereabouts of land which the appellant consented to share with other heirs. The other question to be asked is why the appellant, mainly at the final stage retreated from supporting the 1st respondent in distributing the deceased estate land meanwhile he was in support of the appointment. Far enough, the trial tribunal visited the locus in quo and the parties did not make a point that there were two distinct places contested by them. Even at the time of hearing the appellant failed to prove that the 40 acres and 66 acres of land were actually located at different places. In the circumstances, it is my considered view that the Tribunal did not misdirected itself, thus I dispose of this ground of appeal for lack of merit. Even what the appellant is trying to assert was not proved to the required standard at

the trial tribunal. Looking at the second ground of appeal, it appears as indicated on his ground, that the appellant is challenging the decision of the trial tribunal that it erred in holding that the disputed land belongs to the 1st respondent. This ground of appeal has less chance to succeed due to the fact that there is insufficient evidence on record that distinguishes between the land the appellant was entrusted by the respondents and that he purports to own. The claim of the appellant that he was portioned the suit land by the village government remains to be assertions that were subject to be backed up by concrete and independent evidence. As correctly asserted by the learned Advocate for the respondents that PW2 and PW3 did not clearly prove on how the appellant acquired the disputed land, I find this appeal non-meritorious. With regard to the 3rd ground of appeal, the appellant faulted the decision of the Tribunal that it misdirected itself in holding that the 7 2nd, 3rd , 4th and 51h respondents were not liable to the appellant except the first respondnt who was an administratix. Generally, the duties of the Administrators or executors are well expressed by our laws. For instance section 99 of the Probate and Administration of Estates Act, Cap 445, provides that the administrator is the legal representative for all purposes and all properties of the deceased person.

This in a simple meaning means that the proper person to be sued is the administrator or administratix. However, since the land in dispute was already distributed to the 2nd, 3rd , 4th and 5th respondents it means that 2'', 3rd , 4th and 5th were properly joined with the administratix. The reference can also be made to the letter fromthe Village Executive Officer dated 12.11.20 l4which notified the Primary Court that the suit land was already shared among the beneficiaries with an exception of the Appellant. From such circumstances, it was indispensable for the appellant to sue the 2nd, 3rd , 4th and 5th respondent in their personal capacity because they already attained the possession of the suit land. This means that the respondents are the proper parties and the appellant had cause of action against all of them. In the event, I find the 3rd ground of appealis meritorious. The appellant in his final ground of appeal (4th) complains that he was denied the constitutional right of representation or fair hearing because he could not cross-examine the 1st respondent, Ashura. His counsel Mr. Mushokorwa further contended that the witness was not cross examined by the members of the tribunal. F;] On the other hand, the respondent counsel, Mr. Mwakolo 11 conceded with such irregularities but he was of the view that such irregularity is cured by section 45 of the Land Disputes Courts

Act, No 2 of 2002. The records indicates that at the locus in quo, the 1st respondent testified in absence of the Advocates from both sides and she was not cross examined by the appellant. The issue to be determine therefore is whether such irregularity can be cured by section 45 of the Land Disputes Courts Act, No 2 of 2002 as submitted by Mr. Mwakolo. The provision provides that: 45, "No decision or order of a Ward Tribunal or a District Land and Housing Tribunal shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings before or during the hearing or in such decision or order or on account of improper admission or rejection for any evidence unless such improper admission or rejection of evidence has infact occasioned a failure ofjus tice". At the outset it is worth noting that failure to admit a party from cross examining a witness defeats justice in the premise that the credibility of the witness remains untested. In the present case, there is no doubt that the 1st respondent was not cross examined by the appellant. However looking closely the circumstances, I find that such irregularity did not occasion any failure of justice to the appellant on the account that he failed to prove his claim against the respondents. Pe From the reasons stated above I have no reason to fault with the decision of the District Land and Housing Tribunal rather than upholding its decision, thus this appeal is dismissed.In the event as parties are related, I make no orders as to costs so as not to further soar their relationship. Right of appeal explained. D. i. J.~ ~ MMBI

JUDGE 23.06. 2016 Judgment delivered in Chambers this 23rd day of June, 2016 in presence of both parties. D?BI

JUDGE 23.06. 2016 * 10