20161216 TZHC Mbeya 1

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IN THE HIGH COURT OF TANZANIA

MBEYA DISTRICT REGISTRY

AT MBEYA LAND CASE APPEAL NO. 13 OF 2013 (From the District Land and Housing Tribunal for Rungwe at Tukuyu Application No. 1 3/2012) KOSAMU MWAKINYOMO ............... ...... ......l ST APPELLANT BANJOBILE MWASEBA ............ ....... ..........2 ND APPELLANT

VERSUS CAES 1'ATA.ISAI(A, ........... . ....... ....... . .......RESPONDEN'F

JUDGMENT Date of last Order: 2311112016 Date of Judgment: 1611212016 A.F. NGWALA, J. The appellants lost in the District Land and Housing Tribunal for Rungwe where they were sued by the respondent over a piece of land. The Respondent was represented by the one Lusekelo Mwaisaka whom he had given a Power of Attorney. The appellants preferred this appeal on the grounds that the trial tribunal failed to evaluate the evidence on record and that the respondent had no locus staridi to sue. Page 1 of 11 In rd During the hearing of the Appeal, Mr. Mwakolo the learned Counsel for the appellant submitted that the respondent had adduced evidence using a person who had a Power of Attorney on his behalf. The evidence adduced by one Harrison Lusekelo Mwaisaka was hearsay evidence. Mr. Mwakolo argued that there is no evidence on record to show that Anija Mwalwembe had bought the piece of land from Mwakinyomo on behalf of the respondent. He emphasized that even if the respondent's uncle bought the disputed land, there was no evidence that he handled the same to the respondent. It was Mr. Mwakolo's submission that if it is Anija Mwalwembe who bought the land in 1978 and died in 2003, then there is no person appointed to act for him as Administrator. He stressed that no body can ôlaim a right over the piece of land without being appointed as the Administrator. On the second ground, that the

respondent had no locus standi to sue, the learned Counsel submitted that the respondent did not own the land in dispute. He did not bring evidence to show that the disputed land was bought for him and it was handled to him. On his side, Mr. Maumba learned counsel for the respondent, submitted that the appeal has no basis at all. On the first ground, Mr. Maumba argued that the evidence is clear that the respondent was in Dar Es Salaam. His nephew Anija Mwalwembe bought the disputed land on his behalf in 1978 for the consideration of one ox. He submitted that there was a Sale Agreement. That the said farm had been used by Anija Mwalwembe and his mother until 2003 Page 2 of 11 when Anija Mwalwembe died that the dispute arose. He submitted further that there is no law which requires that all agreements should be in writing. He argued that if the intention of the 11;1 appellant was to redeem the sold land, the Law of Limitation Act, 19 bars him because it is more than 20 years the shamba had been used by Anija Mwalwembe. The learned Counsel submitted further that the argument by Mr. Mwakolo that the land was not handled to the respondent was baseless as the farm was used by Anija Mwalwembe and his mother. Anija Mwalwembe did not testify, because the dispute arose after his death. The respondent's mother had been using the disputed land without intervention. Since Kosamu Mwakinyomo

had sold the suit land to Anija Mwalwembe then under Section 123 of the Evidence Act, CAP. 6 R. E. 2002, he is stopped from appealing. He referred this court to the case of Munyaga Wangorho v. Mulindo Katema (1968) HCD 7 which provided that it is against equity to deprive the original occupant the rights which he has acquired. It was further submitted by Mr. Maumba that the appellant had passed possession of the suit land and the appellants were also aware of the occupation by the respondents and his relatives. He averred that the land had been used for more than 20 years hence the appellants are barred by the Law of Limitation to claim the land. Page 3 of 11 Regarding the 2nd ground of appeal, Mr. Maumba was of the view that the same is baseless as it was not raised in the District Land and Housing Tribunal. He finally prayed that the Appeal be dismissed with costs. By way of rejoinder, Mr; Mwakolo cited Section 110 (1) of the Evidence Act which provides the principle that he who alleges must prove. He averred that the respondent did not prove that he used the suit land and there is nothing to show that he was in Dar es Salaam. He submitted that the respondent instituted a case over a property which did not belong to him. On the alleged estoppels, the learned Counsel submitted strongly that the source is in applicable as the respondent had nothing to claim. Finally on the

issue of locus standi, Mr. Mwakolo vehemently submitted that matters of jurisdiction, locus standi are points of law that can be raised at any stage as per the case of China - Tanzania Friendship Textile Ltd v. Our Lady of the Usambara. Hence the respondent was not entitled to the piece of land because the land belonged to Anija Mwalwembe. I now turn to determine the grounds of appeal. It is Mr. Mwakolo's argument on the 1st ground that the evidence of PW1 Harrison Lusekelo Mwaisaka was hearsay and that there was no evidence that Anija Mwalembwe bought land from Mwakinyomo on behalf of the respondent. Page 4 of 11 Upon perusal of the trial tribunal's record, it is patently clear that the evidence adduced by one Harrison Lusekelo Mwaisaka is clear. In the proceedings Lusekelo who testified as AWl says that in 1978, he gave his uncle an ox to look for him a farm. There after his uncle, Anija Mwalwembe entered into a Sale Agreement with Mwakinyomo and purchased the land. They then used the land for more than 30 years without any dispute. His uncle Anija and the applicant (Charles Mwaisaka) used it for all those years. Anija Mwalwembe bought the suit land for the applicant (Charles Mwaisaka). The learned Chairman in his Judgment clearly showed that the applicant (Charles Mwaisaka) is represented by his relative, one Lusekelo Harrison Mwaisaka through the Power of Attorney; meaning

that it is Charles Mwaisaka the owner of the land that Anija Mwalwembe purchased for him. All in all the appellants do not deny to have sold the suit land, but they argue that they sold the land to one Anija Mwalwembe and not the applicant (at page 6 of the typed proceedings, the first paragraph). When cross - examined by the wise assessor, Mrs. Mwamwaja, RW1, Kosamu Mwakinyomo (1st Appellant) admitted to have sold the land to Mwalwembe in 1978. He also stated that Mwalwembe died in 2012. He also testified that from 1978 - 2012 the suit land was the property of Mwalwembe. From the above scenario, the following facts are deduced, one that the first appellant sold the suit land to Anija Mwalwembe in 1978. Two, that from 1978 to 2012 when Mwalwembe died the land had Page 5 of 11 been in Mwalwembe's possession Anija thereafter Harrison Lusekelo and Charles Mwaisaka. On behalf of another between Charles Mwaisaka and Harrison Lusekelo. Though it has been rightly argued by Mr. Mwakolo that the evidence of AWl Lusekelo Mwaisaka regarding existence of Sale Agreement is hearsay and is not admissible under Section 62 (1) (a) and (b) of the Evidence Act, CAP. 6 R. E. 2002 as he learnt from his uncle Anija Mwalwembe. However this evidence it must be understood that under the provisions of Section 51 (1)(a) of the Land Disputes Courts Act CAP. 216 R. E. 2002, the District Land and Housing

Tribunal is empowered to accept any evidence. The said Section reads:- "51 (1) in the exercise of their respective jurisdictions, the High Court and District Land and Housing Tribunal shall apply the Civil Procedure Code, 1966 and the Evidence Act, 1967. (a) Subject to regulations made under section 49 may accept such evidence as is pertinent and such proof as appears to be worthy of belief according to the value thereof and not withstanding any other law relating to the adduction and reception of evidence." In view of the said provision the 1st ground of Appeal is dismissed. Coming to the 2nd ground the learned Counsel for the appellant submitted that the respondent had no locus standi to sue as he did not establish ownership of the land in dispute. In order to determine this it is imperative to understand the meaning of locus Page 6 of 11 standi. In Black's Law Dictionary 8th Edition, at page 982 locus standi is defined as follows:- "The right to bring an action as to be heard in a given forum." The question here is whether one Charles Mwaisaka had a right to do so? In support of this, Mr. Mwakolo submitted that the question of jurisdiction, limitation and or locus standi can be raised at any stage of proceedings as held in the case of Our Lady of Usambara. Mr. Mwakolo's argument is premised that since it was not proved that the respondent is the legal owner of the suit land,

the he had no right to sue. To this argument, I do not think that this is a proper argument in view of the definition of a locus standi and the reliefs that were claimed by the Plaintiff in the lower tribunal and the cause of action. The record clearly showed the cause of action and that the Plaintiff had claimed for a declaratory order that the 1St and 2nd respondent acts are unlawful and that the disputed land is legally owned by the applicant. The respondent had further claimed for an order of nullification of the portions of the disputed land that had been done by the 1 st respondent in corroboration and conspiracy with the 2nd respondent. In that respect the respondent who was then the applicant was not barred by the law to sue as he had the right and capacity to sue for the reliefs in that court of competent jurisdiction to determine and properly establish whether the applicant, now the respondent was the owner of the suit land or Page 7 of 11 not. In the circumstances, I hold that the respondent had the locus standi to sue. Another point is that, the applicant (the respondent) granted Power of Attorney to AWl Lusekelo Mwaisaka to prosecute the case to its finality as evidenced in the record. The Power of Attorney showed that the respondent was in Mwanza working. Under Order III Rule 2 (a) of the Civil Procedure Code, CAP. 33 R. E. 2002, a person holding Powers of

Attorney are allowed to appear in courts of law on behalf of those who has conferred them such powers. However it has been held that the Powers of Attorneys are only applicable when persons conferring powers are outside the Country. In the case of Naiman Mooire v. Naelejiet K. J. Zablon [1980] T.L.R. 27 the Court of Appeal of Tanzania held that:- "Power of Attorney does not apply where the person to be represented is a resident of Tanzania." Though this is a position, but the law governing Land Disputes Settlement in Tanzania and its Regulations, that is the Land Dispute Court's Act, CAP. 216 R. E. 2002 Specifically in the District Land and Housing Tribunal has its own Rules of Procedure and Regulations which are not applicable in the Magistrate's Courts Act, 1984 which under the contemporary law do not have civil jurisdiction in land matters. Under Regulation 13 (1) of the Land Disputes Court's that is the District Land and Housing Tribunal Regulations, 2003 it is provided that, Page 8 of 11 "13 (1) the parties to proceedings may during the hearing of the proceedings be represented by an advocate or any (I other representative." With regard to the proceedings on record it was therefore proper and in accordance with the laws governing adjudication of land disputes in the District Land and Housing Tribunal for one Lusekelo Mwaisaka to represent the respondent

the applicant/respondent suit. More so it is provided under Section 45 of the Land Disputes Court's Act R. E. 2002 that what matters is substantial justice and not legal technicalities in settlement of land disputes. The said provisions reads: - "No decision or order of ward tribunal or District Land and Housing Tribunal shall be neversed or altered or appeal on account of any error, omission or irregularity in proceedings before or during the hearing or in such decision or order or on account of improper admission or rejection of any evidence unless such error, omission or irregularity or improper admission or rejection of evidence has infact occasioned a failure of justice." In the instance case, Mr. Mwakolo has not stated if the representation by one Lusekelo Mwaisakala which was accepted by the District Land and Housing Tribunal had occasioned justice. What is clear and as rightly found by the trial District Land and Housing Tribunal is that the appellants had never disputed that Page 9 ofil they have never used the land in dispute and worse the time for redemption of the land had long expired when they illegally sold the land. The appellants are time barred to under item 22 of the Law of Limitation Act, CAP. 89 R. E. 2002 to claim the land that has been used by the family of the respondents for over 32 years without any interruptions. It is for the said reasons that this

Appeal is devoid of merit. It is accordingly dismissed with costs. That is the appellants shall have to pay the costs of appeal and below 41~Alf I A.F. Ngwala Judge 16/12/2016 Page 10 of 11 C. Date: 16/12/2016 Coram: A. F. Ngwala, J. 1st Appellant: Absent 2' Appellant: Absent For Appellant: Miss Margreth Lyatuu (Advocate) Respondent: Present For Respondent: Miss Lyatuu for Mr. Maumba (Advocate) Court: Judgment delivered in the presence of the Miss Lyatuu for the respondent and in the absence of the appellants. Court: Right of Appeal to the Court of Appeal of Tanzania explained. A.F. Ngwala Judge 16/12/2016 Page 11 of 11