20160523 TZHC Mwanza

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IN THE HIGH COURT OF TANZANIA ATMWANZA · LAND APPEAL NO. 81 OF 2014 { Original District Land and Housing Tribunal at Geita in Land application No. 16 of 2010} KAGERA KARAN!. cc;; ceca ■■ •••••• ■ c ■ ••c• ■ ■■■■ Ii a ■■■ c ■ a••· •• APPELLANT

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VERSUS PHILEMON MAKONYERA ........... ....... ............ 1 ST RESPONDENT BUPANDWA NHELA VILLAGE GOVENMENT .... 2No RESPONDENT

JUDGMENT OF THE COURT 10/02/2016 & 23/05/2016 GwaeJ The appellant unsuccessfully filed a land dispute in the District Land and Housing Tribunal (DLHT) of Geita at Geita. The DLHT in its decision dated 20th August 2014 declared the 1st respondent lawful owner of the land in dispute measuring six acres for farming after being allocated by the 2nd respondent since the year 1985. The appellant was aggrieved by the DLHT'S decision, he thus preferred this appeal to this court by advancing three grounds of appeal, notably, firstly, that the DLHT's chairperson erred in law lflfffll.{~., >-;:-.:·_ . . ~/ 1 by holding that the land in dispute had been abandoned by the applicant's family, secondly, that the DLHT's chairperson erred in law by holding that the land in dispute was lawfully allocated to the respondent, thirdly, that the DLHT's chairperson erred in law for failure to record the findings after the tribunal had visited the locus in quo on 25/6/2014, fourthly, that the DLHT's chairperson erred in law for failure to take into account the opinion of assessors by affirming them and fifthly, that the DLHT's · chairperson erred in law in rejecting the appellant's evidence at the trial without assignments of sufficient reasons The respondents in their joint reply strongly disputed the appellant's grounds of appeal by stating as follows, that there is strong evidence that the appellant

had abandoned the suitland for a period more than 12 years, that the 1st respondent was evidently and documentarily allocated the land in question, that the chairperson examined the opinion of the assessors and he gave reasons for his decision. Before the DLHT, the appellant sought for being declared a lawful owner of the shamba inherited from his late father one Karani Mwikabi who passed away in the year 1987 and permanent injunction restraining the respondents or their agents or servants or otherwise from illegally using the suit land while before this {ifflffE:J 2 =- court, the appellant in his petition of appeal is seeking for an order quashing the trial tribunal decision and a declaratory order that he is a lawful owner of the land in dispute. At the hearing of this appeal, the appellant was duly represented by Mr. Magoiga, the learned advocate whereas Mr. Rweikiza, the learned counsel represented both respondents. Essentially, Mr. Magoiga reiterated was is in the petition of appeal except he urged this court to refer a case of Nizal v. Gulamali (1980) T.L.R 29 where directives as how to visit locus in quo were given by the Court of Appeal adding that the matter was not time barred as the appellant's mother was staying before her death in 2005 On other hand, Mr. Rweikiza for both respondents, seeking for an order dismissing .this appeal, verbally submitted that the

1st respondent was lawfully allocated the land in dispute and he had in fact stayed for more than 12 years, he further submitted that the trial tribunal was justified not to record the opinion of the assessors as he ( chairperson) was of the same view as that of assessors. I should start with complained irregularities which are failure to record opinion of assessors (ground 4) and failure to record them~ 3 findings of the visiting of the locus in quo (ground 3) of the amended petition of appeal. With due respect, I have examined the trial tribunal record and observed that one assessor who gave her opinion in writing, that is one Rhoda w / o Kinuno and one Mahula who had been entering appearance throughout the proceedings did not give his opinion, he might have prevented by reason ought of his control and this is allowable under provisions of section "23 of the Land Disputes Courts Act, (Cap 216 R. E, 2002) which is quoted herein under; "23 (1) Not relevant (2) Not relevant (3) Notwithstanding the provisions of sub-section (2), if in the course of any proceedings before the Tribunal either or both members of the Tribunal who were present at the commencement of proceedings is or are absent, the Chairman and the remaining member (if any) may continue and conclude the proceedings notwithstanding such absence". Thought according to subsection 3 of section 23 of the Act the DLHT'

Chairperson may proceeding wring judgment in absence of }Hffltt}f5 1-..'.:..-,, 4 one or both assessors who were present during trial, rationale of this provision was aimed at expediting determination. of land disputes but that does mean the trial tribunal is not supposed to indicate such absence and reason of the assessor's absence in his judgment. The trial court decision is silent on who did not opine and who did what, this is wrong; I think, that ought to be depicted in the respectful judgment of the learned chairperson. By doing so it may lead to unnecessary speculations, justice should not only be done but should be seen to be done, recording what assessors opined and if not opined reason (s) for failure to opine should be recorded and depicted in the judgment is rigorous but it avoids unnecessary perception like in this case. It is also true as rightly complained by the appellant and his counsel that the visitation of locus in quo is not indicated by the trial tribunal, the proceedings reveal that the visiting of the area in dispute ought to be made on 24th June 2014 but from there onwards nothing like findings of that purported visiting was recorded in the proceeding, this is also a wrong on the part of the }»JJfij;~f:;_:, /'-.._..,.~; tribunal. -- 5 In the case Nizal v. Gulamali (supra) cited by the appellant's counsel, the Court of Appeal held among: "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 particular matter ..... not on evidence adduced in court In our case the trial tribunal did not record anything as to its visiting of locus in quo, no statement of witnesses at the area in dispute was recorded no such visiting is stated in proceedings or judgment. The above grounds of appeal are capable of disposing of the appeal however I have another observation which I wish to make before concluding writing this judgment. I have carefully looked at the evidence on record, proceedings in particular and observed that there had been questions paused as to the appellant and his witnesses as to his locus standi, answers to those questions relating to locus standi had been that he was chosen by the family members but no there was written authorisation. I have further examined the prayers before this court and the DLHT and found that the appellant repeatedly sought to be declared a lawful owner while the evidence on tffiffiJEi \._/ 6 _,_ record reveals that he wants the suit to be declared the property of the family of the late Karani Mwikabi, it is evident from the record that the appellant is not only survivor (heir) of the deceased, Karani as there are six heirs of their late parents, such as Omari Karani (PW2), Mato

Karani (PW3) and others, this three sons of the late Karani, appeared in court testified that the family members had appointed the appellant an administrator of their deceased father. "PW3. We have appointed the applicant to prosecute the case on behalf of the whole family" If the applicant was appointed to prosecute the case on behalf of the family why he is found seeking reliefs notably, of being declared a lawful owner instead of the family of the late Karani? This is wrong, taking into account the effect of declaring him a rightful owner of the land in dispute while there are other beneficiaries of the estates of the late Karani including the land in dispute, I am aware of manner of lodging land disputes and those who have powers to file such disputes as provided under Land Disputes Courts Regulations but there must evidence to that effect and reliefs sought must be in favour of the owneer and not •l}J)~s: I'--..-{: \..----'' representative. 7 In this situation, in our case the appellant was to apply to the court to be granted letters of administration pursuant to section 33 of Probate and Administration of Estates, Cap 352 R. E, 2002 and when he has already been appointed he can now have mandate to prosecute any case relating to estates of deceased in accordance with section 7! of the Act but not in his personal capacity as is case here. Even by doing so he cannot

institute a case in his own name. In Hall Bakery Supply Company vs. Frederick Muigai Wangoe [1959] EA 474 where it was held that the effect of the decision in a suit by a non-existent person is a nullity and a nullity cannot be amended even by substitution. In the case of Raphael Kimaro v. John Sayida and another , Land Appeal No.32 of 2014 (unreported) where the respondent was, sued but in fact at the time of filing the land dispute he had already passed avvay and therefore one Benedicto, his son appeared without letter of administration, the trial tribunal proceedings were found a nullity. In our present matter it is clear that the appellant had no letters of administration worse still his prayers before the trial tribunal and this court are inconsistent with one appointed by a family to act as administrator unless it was clearly established duringl:Hnhi1'f~';C:::. I,,. ·R__.,; s . v~ trial that the appellant was given the land during life time of his parents (see also In Michael Lutandula v. Deogratias Fidel, Land Appeal No. 160 of 2014, this court at Mwanza (unreported)) It is advisable therefore,· although the evidence might be . substantially direct but in order to avoid or restrain a party to a litigation from rising of anticipated grounds of appeal, records or proceedings should be precise as much as practicable so that the same omission (s) may not play a big role of

justice delay. Having observed as correctly noted by the parties' counsel, it therefore becomes unnecessary to deal any further with the appellant's grounds of appeal. For the reasons given herein above, the trial tribunal proceedings are nothing but a nullity. All proceedings and sub sequential orders of the trial tribunal are quashed and set aside. Whoever wishes to pursue the matter is at liberty to file the same in an appropriate tribunal or court subject to limitation of time, if possible with authority to stand as administrator of estates of the deceased, Karani., if filed at trial tribunal, for interest of justice let the same heard by a different chairperson. In the circumstance of this appeal, I find it just and fair to make no order as to costs in other words each party shall bear its own }j}nJ/lr, 11 ·,-:;;;_: ~ - costs of this appeal and tribunal below. / 9 : i ,. Order accordingly Ma R. Gwae Judge 23/05/2016 Right of appeal fully explained M. R. Gwae Judge 23/05/2016 10