LAND APPEAL MARWA MUSA BUGALAMA

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY AT MUSOMA LAND APPEAL NO. 000017598 OF 2024 REFERENCE NO. 202407221000017598 BETWEEN MASWA MUSA BUGALAMA.................................................. APPELLANT VERSUS KASHIGWA LUBAPULA KASHIGWA....................................RESPONDENT RULING 20th & 29® November, 2024 M. L, KOMBA, J, Appellant above named was dissatisfied by the decision of the District Land and housing Tribunal (the 1st appellate Tribunal) which allowed application No. 57 of 2023 and declared father of respondent to be lawful owner. He decided to appeal to this court with two grounds. When served with petition of appeal, respondent file Preliminary Objection on three points of law that; 1. Appeal is incompetent for being filed in non-existing High Court Registry. Page 1 of 7 2. The appeal is wrongly filed as petition of appeal instead of memorandum of appeal. 3. Appeal is incompetent for suing the respondent in his personal capacity. As it is already settled, that PO has to be determined first before moving to the merit of the case, I did the same. See Khaji Abubakar Athumani vs Daud Lyakugile Ta D.C Aluminium & Another (Civil Appeal No. 86 of 2018) [2021] TZCA 32 (24 February 2021) and Deonisia Onesmo Muyoga & Others vs Emmanuel Jumanne Luhahula (Civil Appeal No. 219 of 2020) [2023] TZCA 124 (20 March 2023). When matter was placed for hearing of the PO, Advocate Thomas Manyama Makongo represented appellant while Mr. Edson Philipo was holding brief of Advocate Suluhu with instruction to proceed. Court decided the matter to proceed. It was Mr. Philipo who was the first to submit on his Preliminary Objection (PO) which has three points. He said the appeal is bad in law as parties are different from the one in the trial Tribunal. He submitted that while at Tribunal respondent was administrator but, in this appeal, he did not indicate if he is administrator, he said that action alter court proceedings. Page 2 of 7. On the second point he submitted that appellant filed petition of appeal, however under the law they are supposed to file petition if the matter originates form ward tribunal. But if the matter originate from DLHT appeal is initiated by memorandum of appeal as provided under Order Section 39 of the Civil Procedure Code, Cap 33 (the CPC) because the Land Dispute Courts Act, Cap 216 is silent on how appeal is lodged. He finally disputed on heading of the petition of appeal on his first point of objection as it reads 'IN THE DISTRICT REGISTRY OF MUSOMA AT MUSOMA' he contended that, there is no such a registry in Tanzania. He took refuge in Ally Mchekanae and Another vs Hasadi Nuhu Kajuna Misc. Application No. 5 of 2022 where it was decided that registries have to be addressed as per law. He prayed the appeal to be struck out with costs as it if filed contrary to the dictates of law. Mr. Makongo started his submission at the third point claiming that respondent did not submit on the effect if registry is wrongly referred. He was of the position that wrong mentioning of registry cannot affect justice because it is trivial issue which can be justified and he categorized it as an issue among the legal technicalities which is condemned under Article 107A(e) of the Constitution of United Republic of Tanzania. Page 3 of 7 On the second ground Mr. Makongo contended that provisions of Cap 216 do not refer to .cases originating from DLHT and therefore, he submitted that it is not wrong if petition of appeal has been filed to the High Court as it is not prohibited by law. To him, this point also is trivial objection because he doesn't find how memorandum affect justice to parties. On the 1st point he submitted that appellant appeared as the owner of the case as he is no longer administrator of the estate. Appellant did not apply and has no extension of time of his capacity as administrator. He went on narrating that the duration of the letter of administration is 4 months from when it is granted and if there is no extension, the status ends. At the moment, he paused, Kashigwa is not administrator of estate of Masoya. His legal status expired and that's why he opted this appeal to be in his personal capacity. He lamented on the way the PO was filed and call it a pedantic PO which he said does not hold water in eyes of law and in eyes of the Constitution. He prayed this court to overrule the PO and heard the matter on merit where the justice could be done. During rejoinder Counsel Philipo noted the response of Mr. Thomas that was in agreement that Kashigwa is not administrator, if that is the case he said judgment of this appeal will differ from that of the Tribunal. On the Page 4 of 7 issue of application of Cap 216, he clarified that section 51 and 52 of Cap 216, is Cleary provided that CPC, Cap 33 is applicable. Counsel subscribes to the cited article of the Constitution; however, he said that alone should not be used to defeat other provisions of law. My duty is to decide whether the PO has merit, I shall start with the first point of objection about the capacity of the appellant. Mr. Philipo, counsel for the respondent raised an issue that status of the respondent has changed as he appeared at the trial tribunal as administrator of the estate of estate of the late Lubapula Kashigwa Mazoya and the judgment of the Tribunal reflect that. I agree with his submission as record is clear on that. I further agree with submission by Mr. Makongo that status of administrator is for four months unless he applied and was granted extension of time for administration of the estate as applied. Mr. Makongo submitted that appellant did not apply for extension of time so he maintained his name. However, in the cause of composing this ruling I noted that it is respondent who was administering the estate of late Lubapula Mazoya and not appellant as submitted. Be it as it may, the judgment of the tribunal dated 21/06/2024. indicate parties as KASHIGWA LUBAPULA KASHIGWA as Page 5 of 7 administrator of the estate of the late Lubapula Kashigwa Mazoya against Maswa Musa Bugaiama. So far as the petition of this appeal refer one party as Kashigwa Lubapula Kashigwa at his personal capacity, I find the petition which initiate this appeal is wrongly filed as Kashigwa Lubapula Kashigwa was not party at the trial Tribunal and first appellate Tribunal rather he appeared as administrator of the estate and therefore, he cannot appear at this appeal with different status as the property subject of this appeal was declared of the late person. This in not among the technicalities forbidden in the Constitution because the Court has the position in Salim Amour Diwani vs The Vice Chancellor Nelson Mandela African Institution of Science & Technology & Another (Civil Application No. 116 of 2021) [2023] TZCA 33 that; We wish to state at the outset that, court records are considered authentic and should not be easily altered as parties would wish to. It bears reaffirming that, parties in the proceedings should at any given time appear as they did in the previous proceedings unless there is a reason for no observing that and only with tiie leave of the court.' Page 6 of 7 There is, in this regard, a considerable body of case law. For instance, in Hellena Adam Elisha @Hellen Silas Masui vs Yahaya Shabani & Another, Civil Application No. 118/01/2019 (unreported) in which the issue was that the names which were appearing in the notice of appeal were different from those appearing in the application to strike out the notice of appeal. The Court underscored the significance of the authenticity and accuracy of court records which it were considered to include a citation of parties' names as they appear in the proceedings. Due to the change of names (status of the party) in this appeal, I find the record will not be proper as the appellant did not apply for change or correction of status of either party herein. I find this appeal cannot be said originate from Land Application No. 57 of 2023 at it bears different parties. I find this point has merit and I sustain. There is no need to analyse other points as this alone is enough to determine position of this appeal. That being said, I hereby struck out the appeal with costs. u< M. L. KOMBA Judge 29th November, 2024 Page 7 of 7