kalunde hussein maganga vs fatuma s muhogo suing as a next friend of salma kidondo 2023 tzhc 17377 16 may 2023

IN THE HIGH COURT OF TANZANIA

TABORA SUB REGISTRY

AT TABORA LAND CASE APPEAL NO.6 OF 2022 (Arising from Land Application No. 4/201 7 of the District Land and Housing Tribunal for Tabora) KALUNDE HUSSEIN MAGANGA.................................. APPELLANT

VERSUS FATUMA S. MUHOGO (suing as a next friend of Salma Kidondo) ................................................................................ RESPONDENT

JUDGEMENT Date of Last Order: 21/04/2023 Date of Delivery: 16/05/2023 AMOUR S. KHAMIS, J. The appellant, Kalunde Hussein Maganga (suing as a next friend of Salma Kidondo), lodged this appeal challenging Judgment and Decree of the District Land and Housing Tribunal for Tabora in Land Application No. 4/2017 delivered on 19/11/2021. 1 In the impugned judgement, the District Land and Housing Tribunal for Tabora declared Salma Kidondo, the respondent herein, as a lawful owner of the disputed parcel of land. A brief background goes that in 2010 Mwajuma Hussein Maganga @Sikujua sold the disputed land to Jackson Mbaga and the latter sold the same to Kibombo Mohamed Iddi who finally re-sold it to Salma Kidondo (minor) in 2012. The dispute arose after the death of the first seller, Mwajuma Hussein Maganga ©Sikujua in 2015. In this respect, Fatuma Mhogo successfully instituted Land Dispute No. 4 of 2017 in the District Land and Housing Tribunal for Tabora where the trial tribunal declared that the disputed parcel of land belongs to Salma Kidondo. Aggrieved by the findings of the trial tribunal, Kalunde Hussein Maganga filed this appeal on the grounds that: i) The trial tribunal erred in law and facts by declaring Salma Kidondo to be a lawful owner of the disputed land on basis of a sale agreement (exhibit “Pl”). ii) While the respondent’s allegedly ownership of the suit land traces from

the sale of the suit by Sikujua Hussein Maganga who sold the same without power so to do to Jackson O. Mbaga who in turn sold to Kibombo Mohamed Iddi who thereafter sold the same to the respondent herein, then the learned chairman of the tribunal erred in law and fact to declare the respondent to be the lawful owner of the suit land and declaring the appellant a trespasser. 2 iii) Before the tribunal the suit being bad in law for failure to describe the boundaries of the suit and then the trial tribunal erred in law fact to declare the respondent to be the lawful owner of the disputed land the description of which is unknown. iv) The trial tribunal erred in law and fact in deciding in favor of the respondent in disregard of the appellant’s cogent evidence on record which carries more weight as compared to that of the respondent. Both parties to this appeal were well represented and agreed to proceed through written submissions. Mr. Saikon Justine, learned advocate, represented Kalunde H. Maganga while Mr. Kelvin Kayaga advocate was in control of respondent’s brief. In support of the first ground of appeal, Mr. Saikon asserted that the sale agreement entered between Kibombo Mohamed Idd and Salma Kidondo is void ab initio because Salma Kibondo was a minor incapacitated by law. He added that even her parent, Abdallah Mdaki, who is alleged to have entered the contract on her behalf

does neither appears in the contract (exhibit “Pl”) nor in the proceedings. On the second ground of appeal Mr. Saikon contended that Sikujua Hussein Maganga had no authority to sale his late father’s estate without being legally appointed as an administratrix. He submitted that exhibit P2 is inoperative. 3 Mr. Saikoni referred to the case of MAGENI SEIF V MOHAMED YAHAYA KHALFANI, CIVIL APPLICATION NO. 1/2009, (unreported) wherein the Court of Appeal held that; “...it is only the probate and administration court which can empower an administrator to transfer the deceased person’s property.” On the third ground of appeal, Mr. Saikon submitted that the applicant failed to describe the boundaries of the suit land, and that the application disclosed the size to be % acre located at Mabatini area within Urambo District, and that the two exhibits admitted “Pl” and “P2” describe distinct sizes of the land which is % acre and % acre respectively. He contended that such exhibits did not state the boundaries or permanent features and owners of neighboring pieces of land. He cited the case of MWANAHAMISI HABIBU AND 7 OTHERS V JUSTIN NDUNGE JUSTINE LYATUU (as administratrix of the Estate of the late Justin Aitalia Lyatuu and 173 others) LAND CASE NO. 130/2018, HC (unreported), wherein the case of DANIEL DAGALA KANUDA V MASAKA IBEHA AND OTHERS, LAND APPEAL NO. 26/2015 (unreported) was cited.

In that case, it was held that: “when the land is un surveyed, the plaint should specify the boundaries and or permanent features surrounding the land” 4 On the fourth ground of appeal Mr. Saikon contended that the evidence relied upon are Exhibits “Pl” and “P2” which are contradictory on the size of the suit land, and the claim that Abdallah Mdaki entered into contract on behalf of Salma Kodondo was neither substantiated nor proved. He urged this Court to allow the appeal. In reply to the first ground of appeal Mr. Kayaga argued that the sale agreement between Kibombo Mohamed Iddi and Salma Kidondo was legal because Abdallah Mdaki signed for and, on her behalf, of the minor child. On the second ground of appeal Mr. Kayaga contended that the sale agreement between Sikujua Hussein Maganga and Jackson O. Mbaga, to Kibombo Mohamed Iddi and later to Salma Kidondo was legal and rightly passed title of ownership. He further contended that, the contention that in 2017 the appellant was appointed as administratrix of the estate of Maganga Hussein, her late father, despite there being no proof for such appointment, does not nullify prior agreements legally entered by her elder sister, the late Sikujua Hussein Maganga. On the third ground of appeal Mr. Kelvin Kayaga contended that the appellant described the land as situated at Mabatini area within Urambo District. He further contended

that the appellant even named the neighbors to the suit land as shown in page 47 of the typed proceedings. On the fourth ground of appeal, Mr. Kelvin Kayaga argued briefly that the respondent led evidence which carries more weight than the 5 appellant and that is why the trial tribunal found the evidence was sufficient to prove her case. To advance his argument, he referred to the case of ALI ABDALLAH RAJAB V SAAD ABDALLAH RAJAB & OTHERS, (1992) TLR 132, wherein it was held that: “The decision of this case was wholly based on the credibility of the witnesss. The learned trial Magistrate saw and heard the witnesses as they testified. He was therefore in a better position to assess their credibility than this Court which merely reads the transcripts of the record.” By way of rejoinder, Mr. Saikon reiterated his submission in chief and had nothing to add. I have tentatively considered the rival submissions from both counsel and read the documents filed by the opposing parties in this appeal. I have also taken note of the added and abandoned grounds of appeal. To start with the first ground of appeal, Mr. Saikon submitted that the contract entered between Kibombo Mohamed Iddi and Salma Kidondo was void ab initio for the purchaser being a minor. On his part, Mr. Kayaga argued that the said contract was entered and signed by her father, Abdallah Mdaki, for and on behalf of

Salma Kidondo. I have keenly gone through records as well as exhibits tendered particularly Exhibit Pl, which clearly show that the parties to the 6 contract were Kibombo Mohamed Iddi and Salma Kidondo, who also fixed their signatures next to their names. There was no mention of Abdallah Mdaki in this agreement. Since this contract contravenes S. 11(1) of Cap 345 R.E 2019, therefore it is void for lack of capacity by the purchaser. Coming to the second ground of appeal, Mr. Saikon stated that Sikujua Hussein Maganga had no power to transfer the suit land to Jackson O. Mbaga because she was not appointed as administratrix of her late father’s estate. In his reply Mr. Kayaga contended that the contract was legal since Sikujua Hussein Maganga was left as a care taker of the suit land and she sold out of necessity to accommodate medical expenses for their beloved mother, the late Mwajuma. And contended that the appellant had time to redeem the said piece of land but he decided to keep quiet until his sister, Sikujua passed on. In the case of DAVID DAVID MBUNDA V. STANLEY JOACHIM MMANYI MISC. LAND APPEAL NO. 80 OF 2013, (unreported) the High Court (Mansoor, J.) held that: “I agree that Mohamed Rashid had no power to sell this disputed land to the appellant but equally Omari Mbaraka also did not have good title to pass it over to the Respondent as there was no proof of letters of

administration granted to Omari Mbaraka to enable him to sell the property that belonged to his grandfather or to his mother. ” 7 From the above case law, is my considerable view that, Sikujua Hussein Maganga had no capacity to transfer the disputed land without being appointed as administratrix. On the third ground of appeal, Mr. Saikon stated that applicant failed to describe the boundaries of the suit land, and that the application disclosed the size to be 3A acre located at Mabatini area within Urambo District, and that the two exhibits admitted “Pl” and “P2” describe distinct sizes of the land which is yA acre and % acre respectively. Mr. Kayaga on his part argued that the appellant disclosed the size of the disputed land as % acre and boundaries as stated in page 47 of the proceedings. After going through the records, I discovered also that the two exhibits contradict each other. Exhibit Pl show that the size of the disputed land as % acre and P2 states as A acre, whereas the application under paragraph 3 states the size as 3A acre. Also, after examining the proceedings of the trial tribunal, there is nowhere shown that the respondent described the boundaries of the suit land, unfortunately at page 47 as claimed by the counsel for the respondent it is the defence witness named as SU1 who testified on the boundaries. It was also emphasized in the case of SAID HASSAN

SHEHOZA V THE CHAIRPERSON CCM BRANCH & ANOTHER, LAND APPEAL NO. 147 OF 2019, (unreported) wherein, the High Court observed that: 8 “having the same principle in mind, it is the finding of this Court that as per available evidence on encroachment the contradictions on the size of land and the boundaries therein, it was a fit case for the trial tribunal to exercise its discretion and make a visit the locus in quo in order to ascertain the boundaries in dispute and the size of the land. I am convinced that by doing so, tribunal would have made a more reinformed decision on the issue of encroachment. Failure to do so might have made the tribunal reach into wrong finding, ” On the fourth ground of appeal Mr. Saikon argued that the exhibit tendered are not worth relying upon since they contradict each other on the size of disputed parcel of land. Mr. Kayaga on his part asserted that evidence given were sufficient to prove ownership as declared by the trial tribunal. It is unfortunate that the two exhibits admitted in the trial tribunal show discrepancies on size of the disputed parcel of land. Despite the fact that exhibit Pl is not enforceable for lack of capacity to enter into contract by the purchaser, the applicant also failed to disclose the boundaries of the suit land. The law and practice of this Court has been that any land in dispute must state clearly land description so

that it can be distinguished from other land for effective execution. On the other hand, the appellant throughout the proceedings claimed to be the administratrix of the estate of the late Hussein Maganga, but upon perusal of records, there is no letters of 9 administration tendered or admitted in the trial tribunal. Further, none of the defence witnesses corroborated her assertion. Worse enough, the appellant is suing under her own capacity and not as the administratrix of her late father's estate. In this regard, the appellant has no capacity to stand in this Court under her own name. Having noted the irregularities which were disregarded by the trial tribunal and others which become apparent in this Court, I have decided to nullify the proceedings and quash the decision made by the trial tribunal for the reasons stated above, as I hereby do. It is the duty of a superior Court to ensure proper application of laws and cannot justifiably close its eyes when there are illegalities or irregularities. If any party is still interested in the dispute, he/she may institute fresh suit in a competent forum entrusted with mandate of determining land disputes. L mAe/tio^ordepfe as to costs. It is so ordered /</ a A/ UR S. KHAMIS / JUDGE 16/05/2023 ORDER: Judgment delivered in open Court in presence of Mr. Saikon Justii^q/'lfqi^fe'drqdvocate for the appellant who is not present and in z'z' si A7 -------------------- exnlained. R S. KHAMIS

JUDGE 16/05/2023 10