20160530 TZHC Mwanza

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IN THE HIGH COURT OF TANZANIA ·u ATMWANZA MISC. LAND APPLICATION NUMBER 78 OF 2014 {From The Decision Of The District Land And Housing Tribunal Of Mara District At Musoma In Land Case Appeal Number 91 of 2013 And Original Ward Tribunal Of Bugwema Ward Application Number 17 012012} MASHA URI MAUN GO ............ ............. APPELLANT

VERSUS PIMA BUGWEMA ................... ............ RESPONDENT

JUDGMENT 21.04.2016 & 30.05.2016 S.B.M.G. MATUPA, J. The respondent unsuccessfully sued the appellant for redemption of a clan ·1and. The only issu·e for determination ·in this appeal is whether the land subject of this appeal is indeed a clan land. The -ward tribunal is a good starting point. It was claimed by and for the respondent that two clan members Songo Nekaji and Mayunga Nekaji were blood brothers. They were living at 1 i Rusori village. As time \¼ent, in 1947 the duo left the village to V settle elsewhere at Jitirola village, Masinono Suburb. In this movement, Songo Nekaji pioneered and after he had settled, he returned to convince his brother to join him. His young brother Mayunga heeded to the persuasion, he followed him. This was between 1947 and 1948. They lived together until 1973, when the duo parted company. Mayunga migrated to J Ragata. Two years later in 1975 he expired. He was buried there. His children moved on to Uzinza, where they stayed until 2008 when they came back to Jitirola to sell the piece of land that was left by their late father. It is claimed that in the process of the sale, they posted placards to advertise that the farms were on sale .. The appellant saw the placards and responded, looked for the sellers and a deal was made. Five years after the sale in 2012, the respondent mobilized the members of the clan to rescind the sale, in a bid to

redeem the land, claiming that the same was clan land. Following the mobilization, the respondent moved the Bugwema Ward 2 ) Tribunal to rescind the sale. He was unsuccessful. He moved I ,,-i .'-...:...,/ the Mara District Land and Housing Tribunal on appeal. He was successful, the sale was nullified and the land was ordered to revert back to the clan and the purchase price was ordered to be reimbursed by the seller. As can be seen, this order was made against the seller, who was not a party to the case. The appellant was aggrieved by the decision, hence this appeal. j The appellant filed a six grounds Petition of appeal, which in essence averred that the decision of the appellate tribunal was not based on the evidence, that the appellate DLHT was in err for failure to nullify the Ward Tribunal's decision which was fraught with irregularities, that it was not shown in evidence that the respondent was a legal representative of the late Songo and Mayunga or that at all the land belonged to him (the respondent). The appellant enlisted services of Mr Muyengi advocate, to argu_e the appeal. The Advocate adopted the Petition of appeal as filed. On the other hand, Dr George Mwaisondola advocate, 3 appeared for the respondent. Let me register my thanks to the . learned counsel for their industry. The first front that was canvassed by Mr Muyengi was the locus standi of the respondent.

It was his contention that this respondent was not shown anywhere on the evidence that he was in any way related to the clan. He impugned the submission before the appellate tribunal, that the locus of the respondent can be drawn from section 18 (2) of the Land Disputes Regulations GN 174 OF 2002, for the reason that there is no evidence that the appellant was anyhow appointed to represent the clan as such. At any rate, it was his contention that the provisions of regulation 18(2) aforesaid, do not allow a person appointed there under, to institute proceedings _in his or her own name. Lastly, It was the contention of the learned counsel that quorum of the Ward Tribunal was sub Judice/· because it did not include women members. 4 In his reply, or· George Mwaisondola impeached the ground on locus standi arguing that the same was not raised before the tribunal below. It was first taken up on appeal belatedly; it is therefore wrong to consider it at this stage on second appeal. He invited the court to the case of Hotel Travertine LTD versus NBC Bank (2006) TLR 133 and Merita Naikimja/ and Loishilaarni Nakiminja/ versus Sailevo Loibanguti J (1998) TLR 120 for authority that an objection not taken at the earliest shall not be taken on appeal. He contended that the appellant did not claim that he was an administrator of the deceased's estate, rather he claimed that he was

a representative of Kaji Muyungu and that he was dully appointed by the clan meeting to act as such. Furthermore, Dr Mwaisondola contended that there was evidence that the land in dispute belonged to the late Songo and The late Mayunga who moved from the land in 1947 and 1948 respectively. These two persons were living in the same homestead. It was therefore a clan land. He seemed however 5 ..J to agree that the quorum of the Ward Tribunal could be sub t i "-../ judice for the reasons. Mr Muyengi in his further reply, contended that the issue of locus standi was raised by the respondents on their appea_l before the first Appellate tribunal and the appellate court replied it in reference to section 18(2). He reminded the court that the regulation relates to a representative of a party to a ) dispute lawfully instituted by the competent party, who ispossessed with locus standi. It was his further submission that in fact the respondent was a stranger as at the time the trial Ward tribunal visited the locus in quo; he was unable even to. identify the land in dispute. Lastly, he reminded this court that the land was not discreetly_ sold as was contended, as it was amply advertised. I· have considered the grounds of appeal very closely. I think the starting point should be whether the respondent, who was the original petitioner at the Ward Tribunal where he lost, was 6 possessed with

the necessary locus standi. Did he have any interest in the land? This matter has two limbs. The first limb is in relation to the competence of the very issue, whether the matter was properly raised before this court. The second limb was whether the appellant is possessed with the locus standi (standing of the respondent) before this court. It was contended that the matter j cannot be raised here on appeal because it was not canvassed by the tribunals below. Dr George relied on the cases of Hotel Travertine LTD versus NBC Bank (supra) and Merita Naikimjal and Loishilaarni Nakiminjal versus Sailevo Loibanguti (supra). In the case of Hotel Travertine, the Court of Appeal held as follows "... the court below did not frame an issue along these lines and the learned trial judge did not address his mind to this issue as well... the issue ... if at all available should have been pleaded and argued before the trial Judge." 7 ) This position echoed that in the case of Merita Naikimjal and Loishilaarni Nakiminjal (supra) and the case of Alwi A. Saggaf v. Abeid Algeredi ( 1961) EA 777. It has to be appreciated that this case (Hotel Travertine) went to the Court of Appeal for the first time, as it emanated from the High court, and is therefore based on the Civil Procedure Code. The case at hand· is not based on that procedure. This. case, unlike the authorities quoted, emanated from the

ward Tribunal. Administration of an appeal under section 34 of the Courts (Land Settlements) no 2 of 202 has its own procedure. The ward tribunals do not have pleadings in the sense if the CPC: It is also significant that the first appellate tribunal under that section of the Act can do any of the following things:- {a} Consider the records relevant to the decision; and {bJ Receive such additional evidence if any and;and {c} Make additiona/inquires, as may deem necessary. 8 In the present case,. it is true that the issue of locus standi Q» - of the respondent though was raised at trial and there was effort to invoke it on appeal during the written submissions, the appellate chair_person just glossed it over. There is no mention of it in the decision. Going by the case of Alwi A. Saggafabove and a chain of authorities that followed culminating with the -case of Hotel Travertine, it is true that the trial magistrate did J not direct his mind into this issue. Notwithstanding the powers of the appellate tribunal outlined above, it is also apparent that the decision of appellate tribunal below did not address the issue of the standing of the respondent. Definitely, had the Tribunals below addressed the issue, they would not have made some of the mistakes that will become· apparent in the course· of this judgement. That notwithstanding, I do not agree with the learned counsel for

the counsel for the appellant, that the ground of appeal in relation to the standing of the respondent should be sustained. As has been admitted, the issue was raised at the trial. The Two 9 witnesses for the applicant were questioned exhaustively on the ) V relationship between the respondent and Mayunga. At first when the respondent was questioned, he answered that Mayunga was a friend. However, he later pre-vacated, claiming that they were brothers. The same questions were put to the other witness of the claimant, the respondent herein one Bunyinyinga Songo. This one asserted at the outset that the ) respondent was a brother to Mayunga. The matter was not pursued further. Understandably, the prosecutor for the defence I mean the appellant was a buyer. He was therefore a stranger to the clan he could not claim to know the detail of the relationship of the clan. It is no wonder therefore that he could not ask pertinent questions in that regard. Th.e matter was taken in the submissions of the respective counsel on appeal. Unfortunately both tribunals never addressed the matter. I have shown that the. respondent asserted that he was a brother. The appellant was not minded to rebut this evidence. As it were, the two tribunals below were not minded to address 10 the issue not because it was not raised, but by design or mistake, it was skipped or simply glossed over. I have

also shown that the appellant did not rebut the contention by the respondent that he was brother to the late Mayunga, at this stage one cannot be heard to complain here on appeal that he was not. I will therefore hold that the ground in respect of the locus standi is not well founded. I will there for dismiss it. I will J hold that the Respondent had the loucs standi to sue on behalf of the clan. On the second ground of appeal, the learned counsel submitted that the proceedings were fraught with irregularities. It was contended for example that the Ward tribunal was not gender balanced and therefor these proceedings be nullified. This objection was not taken at the trial. There was no objection of the members at the time the tribunal constituted itself. It is _my position that an irregularity as to procedure has to be taken at the earliest opportunity available. At any rate an objection that do not occasion a miscarriage of justice cannot 11 __,I be invoked to vary a decision of the tribunal. I am guided ·by u the provisions of section 42 of Courts (Land Disputes Settlements Act), which directs as follows . "No decision or order of the Ward tribunal or district land and housing tribunal shall be revised or altered on account of any error, omission or irregularity in the proceedings before or during the hearing .... unless such error omission or irregularity or

improper admission of the evidence or rejection of the evidence has in fact occasioned a failure of justice. As said, the appellants did not raise the lapse in relation to the composition of the tribunal at the earliest opportunity. This was an irregularity that occurred before the hearing, it is therefore covered by the foregoing provisions. The tribunal 1s constituted by ~he Chairman and advisors. The gender. becomes relevant where there is an issue as to the gender rights, as this section was intended to address matters protective of both. gender. I am aware that gender balance was well intended to ensure that the resolution of land disputes to be all inclusive. In the present case there was no issue that was gender 12 sensitive, like inheritance. The decision was not masculine in J any way. I will hold therefor that there was no miscarriage of justice that was sustained. That apart, it has not been shown to this court that the gender .was not balanced. To . obviate this dilemma, in order for the quorum of the tribunal to comply with the law, the gender of the respective members has to be recorded. The lapse apart. It is my holding that since in this _/ case gender issues were not raised, or decided, the failure to include both gender did not occasion any miscarriage of justice. Accordingly this ground is dismissed as well. Back to the first and the fourth grounds of appeal the issue is whether there was any evidence that the land was owned by the respondent or the clan. These grounds were raised in the following form:- 1. "The first appellate tribunal erred in law to allow the appeal by the respondent herein appeal without proof evidence. 2 . .......... . 3 . ......... .

4. That both tribunal erred in Jaw to grant land admit respondent claim against 13 appellant herein is unlawfully because the respondent to proceed to sued as if the and in in dispute belonged to him · ,, 5............. Indeed the appeal revolves around these grounds. Dr Mwaisondola submitted that there was adequate evidence of ownership as was shown by Bunyinyige Songo According to this witness the la~d was co-owned· by Songo Nyikaji and Mayunga Nyikaji from 1947 to 1973 when Mayunga left. the village. It was his (Dr Mwaisondola's) contention therefore that it was a clan land which could not be sold by a sole clan member. When asked what happens should I hold that the land was a clan _land that ·was sold wrongly, he answered that the recourse would be redemption. In this case I have to determine on the sum of evidence on the record . whether the land was indeed clan land. If my holding is in the positive was the order for redemption lawful. A clan land is the one inherited from grandfathers and is held by the clan in general. This is an established principle that 14 has been_ followed by this court by a number of authorities, J V including the case of Jibu Sakilu versus Petro Miumbi 1993.(TLR) 75. It may also mean that land which a certain class of members of the clan can have the right to inherit. In the case of Shechange versus Shekuba (1971) 18 where Makame Judge stated the

definition a clan land in the line of inheritance. The latter definition fits well in the facts of the present case. In the Present case it is in evidence that the two brothers, Songo Nyikaji and Mayunga Nyikaji left their village in 1947 to settle at the land in dispute. The two brothers sought the land and occupied it on their own distinct and separate names since then. The complainants evidence which was not controverted, had it that the sale of the land was done in the presence of Songo Nyikaji, it was advertised by placards and was also pronounced on the occasion of the burial ceremony of the sister of the said Songo _Nyikaji, who passed away at the time _when· placards advertising the sale were already posted. It is also in the evidence that the Tribunal visited the locus in quo and was _ 15 able to identify the land belonging to the said Mayunga, which . ,_. :'j '-../ was distinctly separate from that of Songo Nyikaji. Furthermore, it was not controverted that the said Songo Nyikaji was helping the appellant to convene the sellers and was instrumental in facilitating the sale. This evidence will only show that Mayunga's land was distinctly separate and not in whole with that of the said Songo. With all this evidence, I find that the land was acquired by the late Mayunga Nyikaji about 1947 and 1948 and was not inherited by the clan from their grandfathers. It was not

therefore available to members of the clan, as to entitle all of them to inherit. Even if I were to hold that the land was a clan land as has been contended all through. by the claimant, the ord~r of redemption is not well founded. The court directed the seller to refund the money. He was not the one moving for rede.mption. An action for redemption proceeds from the premise that the sale is lawful and not illegal. (See Kisanga, J. as he then was in o the case of Kyakukaile versus kikaija (1971) H.C.D 185). It is a 16 right sui generis~ which entitles a member of the clan to J repossess the clan land which has been sold by member of the clan without the consent of the clan. Upon redemption, the land vests . in the possession of redeemer· until the original owner . refunds the price. if at all. The appellate tribunal ordered the seller to refund the purchase price. This order was irregular for it was done to a third party who was not given the right of hearing and was not in any was beneficiary to redemption proceedings. In the upshot, this appeal succeeds; the decision of the DLHT is hereby quashed and set aside. The decision of the trial Tribunal is hereby restored. The appellant shall have his costs here and the tribunals below . .. r,'> ~ I"•• • $1.J.~ \ s. ~Nliitupa t r~:q JUDGE i·'~-: \,,··" ,. \. ,, ~<•·.., ' . ·. ,,::.:~~~~.:~:~~~? 17 ) Date: 30.05.2016 ~ . Coram: Hon. S.B.M.G. Matupa, J, Appellant: present Respondent: Dr. George Mwaisondole Advocate for the Respondent C/C: N.Nkulangowe Dr. George Mwaisondole:. This case is set for judgment and we are ready for the ; judgment. S.B.M.G. Matupa

JUDGE 30.05.2016 Court: The judgment is read in chambers in the presence of the appellant and Dr.George Mwaisondole Advocate for the 18