lazarius ndegeya as an administrator of the estate of the late machiya luchagula and another vs robert maige mahona as an administrator of the estate of the late maige

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF TABORA AT TABORA LAND APPEAL NO. 17 OF 2022 (Originating from Land Application No. 43/2020 in the District Land and Housing Tribunal for Nzega before Hon. Vicent A. Ling'wentu) LAZARIUS NDEGEYA (As an Administrator of the Estate of the late MACHIYA LUCHAGULA)....................... 1st APPELLANT JOHN MACHIYA.......................................................... 2nd APPELLANT VERSUS ROBERT MAIGE MAHONA (As an administrator of the Estate of the iate MAIGE MAHONA)................... 1st RESPONDENT PASCHAL BUNDALA KABUTA................................. 2nd RESPONDENT JUDGMENT Date of Last Order: 13/07/2023 Date ofJudgment: 10/08/2023 MATUMA, J, In the District Land and Housing Tribunal for Nzega at Nzega the appellants were sued along with two others who are not subject to this appeal for trespass in land. It was the respondents^who sued them for trespass on the land measuring 29 acres which is located at Senzule Stoo street at Igunga. After a full trial the learned chairman allowed the application and declared the respondents as lawful owners of the disputed land. The Appellants were declared as trespassers to the suit land and were ordered to vacate from the suit land and to pay costs of the suit. Aggrieved with such findings the appellants are now in this court with six grounds of appeal coached in a layman's manner but whose contents tends to establish the following complaints; i) That the suit at the trial tribunal was wrongly entertained because the same was incompetent for non - joinder of Igunga Village Council as a necessary party. ii) That the trial chairman erred in law to find that Igunga Village Council allocated 200 acres to the late Maige Mahona without considering that during operation vijiji the Village Council's power to allocate land to each villager was limited to only two acres. Hi) That the trial tribunal erred to enter its judgment in favour of a third party who is not part to the suit. iv) That the trial tribunal erred to deciare the 1st appellant a trespasser to the suit land because he is neither the owner of the same nor he had locus standi in the suit after his documents relating to administration of the estate of the late Machiya Luchagula were rejected to be admittedun evidence. 2 v) That the 1st appellant's documents relating to administration of the estate of the late Machiya Luchagula were wrongly rejected to be admitted as by doing so it preempted the locus standi of the 1st appellant in the suit. vi) That the respondents' evidence at the trial tribunal were hearsays and thus wrongly entertained. At the hearing of this appeal the appellants were present in person while the respondents who were also present were represented by Mr. Samwel Ndanga and Mwamvua Songoro learned advocates. Arguing the 1st ground of appeal, the appellants submitted that Igunga Village Council was not joined to the suit as a necessary party and thus rendering the suit incompetent before the trial tribunal as it was held in the case of Peter Seleli Juma Mashelembi versus Director of Nzega District Council (1968) HCD at page 498. They also referred me to the case of Juma P. Kadata versus Laurent Mkonde (1983) TLR103. When I asked the appellants to tell the Court whether either party had any claim against Igunga Village Council pertaining to this suit, the 1st appellant replied; "The Village Council ofIgunga is not involved. Neither party in this suit had a claim against the said village council." Mr. Samwel Ndanga on his part argued that none of the parties had a cause of action against Igunga Village Council nor the appellants raised any concern against the said village council at the trial hence the ground is very new altogether which was not dealt at th^trial court's level. He also referred 3 this court to Order I Rule 9 of the Civil Procedure Code to the effect that no suit should be defeated by reason of misjoinder or non-joinder of parties. Having heard the parties on this ground I am of the firm finding that this ground of appeal is misconceived. It is without any merits. A necessary party in the suit is determined by looking the facts and evidence on record in which either party pleads some claims against such party or that by operation of the law, such party is necessary in the suit. In the instant matter neither party had any claim against Igunga Village Council nor the said village council is prescribed by law to be a necessary party in the suit of this nature whereas private litigants are confronting on the ownership of a private land. That is why throughout the trial at the trial tribunal neither party raised any issue against the village council. This is a new matter raised as rightly argued by Mr. Samwel Ndanga learned advocate. In the case of Elisa Mosses Msaki versus Yesaya Ngateu Matee (1990) TLR 90 (CAT), the Court in dealing with matters of similar nature held that matters which were not raised and determined by the trial court cannot be raised and entertained on appeal. Just to quote, It held; "The Court of Appeal will only look into matters which came up in the lower court and were decided; not on matters which were not raised nor decided by either the trial court or the High Court on appeal." In the same manner, this ground is without any merit as it intends to raise an issue which was not raised at the-Tfial tribunal nor pleaded in the 4 pleadings of the parties. Neither party had a cause of action against Igunga Village Council. I therefore as I do hereby do; dismiss the 1st ground of appeal. In the second ground, the appellants who had common and joint submission argued that the Village Council during operation Vijiji had only power to allocate two acres per each villager and therefore it was wrong to declare that the said Village Council had allocated 200 acres to the late Maige Mahona. The appellants called this court to declare the 200 acres as the property Ushirikaf' under the Village Council of Igunga. Mr. Samwel Ndanga learned advocate responding on this ground argued that the trial court records does not support this complaint because there is no evidence showing that the Village Council had power to allocate only two acres. I agree with Mr. Samwel Ndanga learned advocate that no evidence was given by either party relating to the powers of the Village Council to allocate the land to the villager. The evidence given on record shows that the late Maige Mahona acquired 200 acres in 1974. After his death, his fifteen children were allocated ten (10) acres each and the late Machiya Luchagula who was the herdsman of the late Maige Mahona was as well given ten acres. Out of 200 acres, 40 acres remained in which the Village Council took eleven for construction of the school leaving 29 acres to the estate of Maige Mahona. It is those 29 acres which the appellants were alleged to have trespassed. 5 I did not see any evidence on record as rightly submitted by Mr. Samwel Ndanga that the Village Council was limited to allocate only two acres to each villager. The respondents' witnesses were even not cross examined on such fact. Even though the dispute at the trial court was not relating to the 200 acres but only 29 acres. The ground is thus brought as an afterthought. It is accordingly rejected and hereby dismissed. In the 3rd ground the appellants contends that the suit land was awarded to a stranger, a third party who is not part to the suit. Mr. Ndanga opposing that ground sumbitted that no award of the trial tribunal was given to a third party. Without dwelling much in this ground, the judgment and decree of the trial tribunal is very clear as to who was awarded the decree. Thus, for instance at page 7 of the impugned judgment it was held; "Hivyo maombi ya waombaji yanakubaiiwa pamoja na gharama na baraza iinatoa amri zifuatazo:- i) Kwamba ardhi yenye mgogoro ni maii ya waieta maombi "Waieta maombi' have been defined in the same judgment at page 1 such as; "Hii ni hukumu kufuatia maombi namba 43 ya 2020, maombi yaiiyofunguiiwa na Bwana Robert Maige Mahona (Msimamizi wa Mirathi ya Marehemu Maige Mahona Mkoia); Paschai Bundala 6 Kabuta ambao watajulikana kama mwombaji wa kwanba na wa pili." In the circumstances no decree was issued to a third party. The appellants are pinning their complaint to a topographical error in the second drawn issue which stated; "Kutegemea na hoja ya kwanza, ni kama mauzo ya ardhi ya/iyofanyika kwa mdai wa tatu yalikuwa halali kisheria." The word '''mdai wa tatif was just a sleep of the pen. It intended to say the second applicant or 'mdai wa pili' such issue has even referred the word "mauzd' as "muuzd'. Those minor errors should not be relied to defeat justice on the substantive rights of the parties regard being on the applicability of the oxygen principle. I therefore dismiss the 3rd ground of appeal. The 4th and 5th grounds of appeal are all intending to impeach the locus standi of the 1st appellant in this suit. The appellants argued that since the documents of the 1st appellant relating to his appointment as administrator of the estate of the late Machiya Luchagula were not admitted in evidence, it ought to have been found that he had no locus in the suit. In that respect the trial tribunal could not have declared the 1st appellant as owner of the suit land or trespasser. Mr. Samwel Ndanga learned advocate disputing these grounds submitted that the 1st appellant's judgment and court form no. IV relating to his appointment as administrators of the estate in question were all received and admitted in evidence. He further arguecUthdf only strange documents which were photocopies and which were not even attached to the pleadings were rejected. I don't find any merit in these two grounds because there was no contentious issue between the parties to the locus of the 1st appellant as an appointment administrator of the estate of the late Machiya Luchagula. He was sued under such capacity and drafted his Written Statement of defence under the same capacity. On the issues drawn for determination, his administration of the estate was not contested and thus no issue was drawn in that respect nor either party was necessitated to bring evidence to prove that the 1st Appellant was an appointed administrator of the estate in question or disprove such capacity. Therefore, whether or not letters of administration were not received in evidence it is immaterial because the parties had no contentious issue to that effect. The rejection of such documents did not prejudice either party. The documents intended to move the trial tribunal to recognize the first appellant as administrator of the estate of the late Machiya Luchagula. The impugned judgment and its decree are all recognizing him as such. I therefore proceed to dismiss ground four and five of the appeal. In the last ground of appeal, the appellants contended that three of the witnesses who gave evidence at the trial tribunal in favour of the respondents were children of the late Maige Mahona. That such witnesses were not present during the time when the said Maige Mahona was allocated the suit land. ~ 8 Responding on that ground Mr. Samwel Ndanga learned advocate argued that the available principle is that he who has heavier evidence than the other must win and that the respondents proved their claims against the appellants. I agree with Mr. Samwel Ndanga that in Civil Case he who has heavier evidence than the other must win the suit. It is not the question of whether the witnesses were present or not at the time the suit land was acquired. The issue was who between the parties owns the suit land. On record the respondents gave undisputed evidence on how they deserved a decree for ownership of the suit land. Even the appellants themselves in their respective evidences cemented that indeed the suit land belonged originally to the late Maige Mahona and the late Machiya Luchagula was a mere trustee to the same. Thus, for example the 1st appellant who gave evidence during trial as Sill testified at page 42 of the trial tribunal proceedings to the effect that the Village Council had allocated the suit land to the late Maige Mahona and Machiya Luchagula lived in it as a trustee who was later required to vacate. On his continuing to live there he was sued in the ward tribunal which declared him a trespasser and ordered him to vacate. That decision marked the end of dispute as to who owns such land. Look for instance at that page 42 of the proceedings in which the 1st appellant himself admits that it is the late Maige Mahona who was allocated such suit land; "Maige Mahona, ni kweii aiipewa ardhi hiyona serikaii ya kijiji cha Igunga mwaka 1978." 9 At page 43 of the same proceedings; "Nakubaliana na waombaji kuwa baba yao aiigawiwa ekari themanini (80) na serfkali ya kijiji." The first appellant went ahead to tender the judgment of the ward tribunal in the previous litigations between different persons as exhibit DI to prove that the suit land was allocated to the late Maige Mahona. The 1st appellant at page 43 further testified that upon death of Maige Mahona in 1994, it is when his family demanded the late Machiya Luchagula to vacate the suit land because they wanted to develop it. In the circumstances, the respondents had heavier evidence at the trial than the appellants. Even on this appeal the appellants seem to have no interest in the suit land. They submitted that the late Maige Mahona was given such land by the Village Council just as a trustee for "Ushirika". At any time, the Village Council may take it back. If that is the case the appellants have no reason to fight for such land. They should leave it to the Village Council and if in one way or another they are beneficiaries of the said "UshirikaT they should trigger such " Ushirika?' to take the necessary actions and not for them to purport protecting the "Ushirikai' who is not even a party herein. I therefore proceed to dismiss this ground as well. To that end, all the grounds have been dismissed and thus this appeal fails. The appeal is hereby dismissed in its entirety^ o Taking the fact that this dispute revolves around relatives, I grant no costs to either party. Right of further appeal is hereby explained. It is so ordered. JUDGE 10/08/2023 COURT Judgment delivered in the presence of the 1st appellant and 1st respondent and in the absence of the 2nd appellant and 2nd respondent. ii