land app 8657 SCANEED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 8657 OF 2024 (Originating from the judgment and decree in Land Application No. 13 of 2015 of the District Land and Housing Tribunal of Mkuranga District delivered on 09/6/2023 by Hon. R.L Chenya, Chairman). JAMIL YAHAYA MBONDE............................................... 1st APPELLANT MAHAMUD MBWANA MGOMI........................................ 2nd APPELLANT VERSUS MGAZA MAKUNGU (as administrator of the Estate of the late MAKUNGU SWALEHE ZALALA)............. RESPONDENT JUDGMENT 30/9/2024 & 10/10/2024 k. MSAFIRI, J. The appellant being aggrieved by the decision of the District Land and Housing Tribunal for Mkuranga (herein the trial Tribunal) in Land Application No. 13 of 2015, has lodged this appeal on five (5) grounds of appeal as follows; 1. That the Honourable trial Chairman erred in law to hold as he did by introducing a new issue suo motu in the course of judgment and decided the same issue without affording the appellants a right to address him on the issue. i 2. That the Honourable trial Chairman erred in law in that he failed to order for the joining of the personal legal representative of the deceased person mentioned in Exhibit DI which was tendered by the first appellant who testified to the effect that the disputed piece of land belonged to his deceased father. 3. That the Honourable trial Chairman erred in law in that he made an order proceeding ex parte against the second appellant, on account of substituted service by publication when normal service of summons was available. 4. That the Honourable trial Chairman erred in law and fact to order for exparte hearing against the second appellant when there was no proof that the said appellant had been notified of the hearing date. 5. That the Honourable trial Chairman erred in law in that the application was barred by law of limitation as the cause of action arose in 1999. The brief background of the dispute is that initially it was the respondent Mgaza Makungu, as the administrator of the estate of the late Makungu Swalehe Zalala who filed an application before the Tribunal jointly against the appellants. The respondent claim against the appellants was that his late father Makungu Swalehe Zalala was the lawful owner of the suit land located at Fungoni, Magodauni Village at Mkuranga. That his late father acquired the disputed land in 1940 while it was a virgin forest and tilled the land until his death in 1978. That after the death, the disputed land 2 was left to the wife of the deceased who also passed away in 2002 leaving the land in possession of the applicant (respondent). The respondent claimed further that in 2012 he went to visit the disputed land and found the appellants have trespassed into the said land claiming that the same is their lawful property. The respondent prayed for the declaration that the disputed land is his lawful property. After hearing, the first judgment of the Tribunal delivered in 2020 dismissed the application with costs. The applicant (respondent) was aggrieved and lodged an appeal to this court and in its decision of 18/8/2022, this court allowed the appeal, and quashed the judgment, Decree and proceedings of 2020 by the Tribunal and order retrial. After retrial, the trial Tribunal entered judgment in favour of the now respondent, declared the appellants the trespassers and ordered their immediate eviction from the disputed land. The appellants were dissatisfied hence the current appeal. The hearing of the appeal was by way of written submissions. The submission in chief by the appellants was drawn and filed by Mr. Jethro Turyamwesiga, learned advocate and the reply submission by the respondent was drawn and filed by Mr. Andrew Kanonyele, learned advocate. L, 3 I have well considered the submissions by the learned counsels and I commend them for assisting the court in determination of the appeal but I have no intention of reproducing everything which was submitted. In the first ground of appeal, the appellants claims that the trial Chairman erred by introducing new issue suo motu in the course of judgment and decided the same issue without according the appellants right to address on the same. In his submissions, Mr Turyamwesiga, counsel for the appellants submitted that the trial Chairman introduced the said new issue as seen at pages 2, 6 and 8 of the impugned judgment. That the trial Chairman introduced the District Commissioner in his judgment while there was no evidence from the appellants that the District Commissioner was involved in allocating the disputed land. That the trial Chairman introduced the issue of mandatory procedure to be followed before re-allocating the land but did not give the appellants the opportunity to address him on that issue. The counsel for the appellants reproduced page 8 of the impugned judgment where the trial Chairman purportedly introduced new issue as follows; 4 "kuna maelezo kuwa mgawo wa shamba hilo ulifanyika kwa kufuata mae/ekezo ya Ofisi ya Mkuu wa wHaya kwa viongozi wa ngazi za chini." The counsel argued that, for failing to give the appellants an opportunity to respond on the new issue, then the proceedings are vitiated. In response, Mr Kanonyele, the counsel for the respondent submitted that the trial Chairman did not introduce a new issue concerning the District Commissioner's involvement but this was in the course of the hearing. That the issue of the District Commissioner was raised by one of the parties and /or their witnesses to the case and the trial Chairman was responding on what was raised before him. I have gone through the evidence particularly the one that was adduced by the now respondent who testified as PW1 and the 1st appellant who testified as DW1. PW1 testified that his late father was given the disputed land by his brother, and it was a virgin land. That he cleared the bush and started to cultivate. PW1 said that he inherited the disputed land from his father after his death. He said that later he discovered the trespass and reported to the Village Council. That the 1st appellant instituted a suit against PW1 in the Village Land Tribunal. That the Village Land Tribunal declared the 1st appellant the owner of the disputed land for the reason that PW1 has abandoned the disputed land for many years. m, . 5 PW1 said further that he reported the matter to the Kitongoji Chairman and later the matter went before the District Commissioner for Mkuranga. That the District Commissioner denied to issue the order of re-allocating the farm. DW1 also testified in defence that it was his late father who was allocated the disputed farm by the Village Council of Magodauni. He produced the proof of allocation which was admitted as exhibit D2. That he found the trespassers and reported to the Village Land Council. That the applicant (who is now respondent) was summoned and after hearing of both parties, the Village Council declared DW1 the lawful owner. During cross examination, the witness DW1 stated that according to exhibit D2, the disputed farm was allocated after the order of the District Commissioner. Looking at the evidence which was adduced by parties in the dispute particularly PW1 and DW1, the issue of the District Commissioner involvement in the dispute arises out of the evidence which was adduced during the trial. The trial Chairman did not raise the new issue suo motu as the appellants would like this court to believe. It was PW1 who first stated that the Village Council declared the 1st respondent the lawful owner for the reason that the farm was abandoned. He said further that 6 when they went to the District Commissioner, he denied to have issued order of re-allocation. Exhibit D2 is the letter of allocation from the Office of the Vikindu Village Government which was issued to Yahaya Amaridini Mbonde in 1999 which shows that there was a directive from the District Commissioner of Mkuranga which was issued on 02/10/1997 about re-allocating the bushes/farms which have been abandoned by the owners. In the letter, the Village Government allocated the abandoned farm to the said Yahaya Amaridini Mbonde. From the analysis of the above evidence, it shows that the disputed farm was allocated to Yahaya Amaridini Mbonde as abandoned farm following the directives of Mkuranga District Commissioner. This is exactly what the trial Chairman analysed in his findings and decision as seen from pages 8,9,10 of the impugned judgment. I find that the trial Chairman did not introduce any new issue during the judgment but he was analyzing the evidence which was before him. I find the first ground to have no merit. On the second ground, the counsel for the appellants submitted that the trial Chairman erred when he failed to order for the joining of the personal legal representative of the deceased mentioned in exhibit DI which was tendered by the 1st appellant. That the said exhibit and the testimony of 7 the 1st appellant pointed to the fact that the disputed land was the property of the deceased hence formed part of his estate. That on such evidence, the trial Chairman should have ordered for joining legal personal representative as a necessary party. To bolster his point, the counsel cited the case of Julian Francis Mkwabi vs Lawrent Kimwaga, Civil Appeal No. 531 of 2020 where the issue of joining a necessary party was discussed by the Court of Appeal. In response, the counsel for the respondent submitted that the circumstances of the dispute did not find it necessary to join the administrator as a necessary party. He submitted further that the failure to join the administrator does not render the proceedings invalid or vitiate the decision on that matter. He also cited the case of Juliana Francis Mkwabi (supra) to support his arguments. In this, I will reproduce the provisions of Order 1 Rule 9 of the Civil Procedure Code (the CPC) which provides that; "/I suit shall not be defeated by reason of the misjoinder or nonjoinder of the parties, and the court may in every suit deal with the matter in controversy so far as regards the right and interests of the parties actually before it". 8 In the matter before the trial Tribunal, all the parties were accorded a full opportunity to present their evidence before the court and the 1st appellant said that he is among the heirs of his late father and he was the one following up on the matter. lam of the view that in the instant matter, the trial Chairman regarded the rights and interests of the parties before him and the non-joinder of the administrator did not prejudice the appellants in any way. I find that in regard to the evidence adduced by the parties, the non­ joinder of the administrator did not prejudice any party to the suit and certainly does not vitiate the proceedings. The second ground has no merit. The third and fourth grounds were argued jointly and it is on the effect that the trial Chairman erred to order an exparte hearing when there was no proof of service to the 2nd appellant. The appellants through their counsels challenges the service by publication. That since the respondent knew the physical address of the 2nd appellant, he ought to serve him by presenting summons to him or by affixation. This need not take much of the court's time. The Tribunal records shows that on 22/6/2016, a summons was issued by the Tribunal for the service of Mahamud Mbwana Mgomi, the 2nd appellant. An affidavit of service of 9 the process server one Kilenga Hamisi who went to serve the 2nd appellant shows that the 2nd respondent was not traceable to his physical address as he has moved from Magodauni Village where he previously lives. Therefore, since the 2nd appellant could not be traced to his known physical address, then a substituted service was ordered which was effected on 06/8/2016 by publication in Uhuru Newspaper. The 2nd appellant failed to appear in court as summoned for unknown reasons hence the trial Chairman was correct to enter exparte order against the 2nd appellant. I find these grounds of appeal to have no merit. The fifth ground is on time limitation whereby the counsel for the appellants submitted that the trial Chairman failed to find that the application by the respondent was time barred. The counsel for the appellants submitted further that the evidence adduced by the respondent was that his father died in 2002 and that his father acquired land from his brother. That the respondent did not file the application until 2015. That from 2002 to 2015 is 13 years while the Law of Limitation Act Cap 89 provides for twelve (12) years from claim of ownership of land. Mr. Turyamwesiga argued that also the 1st appellant testified that his late father was allocated the disputed land in 1999 and that the dispute arose io when his father died. He said that the 1st appellant's father occupied the disputed land since 1999 which is over and above the 12 years' limitation. In response, Mr Kanonyele for the respondent submitted that the dispute is not time barred as the cause of action accrued sometimes in 2015 when the appellants began asserting ownership over the disputed land. Section 4 of the Law of Limitation Act provides for the commencement of the period of limitation. It provides thus; 4 The period of limitation prescribed by this Act in relation to any proceeding shall subject to the provisions of this Act hereinafter contained, commence from the date on which the right of action for such proceedings accrues. Section 5 of the Law of Limitation Act provides thus: 5. Subject to the provisions of this Act, the right of action in respect of any proceedings shall accrue on the date which the cause of action arose. In the instant matter, the pertinent question is when did the cause of action arose? According to the applicant (respondent), the cause of action arose in 2012 when he went to visit the disputed farm and found the farm divided into pieces of land by someone and reported the matter to the li Village Chairman. This fact was pleaded in the respondent's application during the trial. According to the 1st appellant, the dispute arose after the death of his father. He produced the death certificate of his father which was admitted as exhibit DI. The said death certificate shows that Yahaya Almadin Nurdin Mbonde who is the father of the 1st appellant died on 12/6/2014. Gathering from all these evidence from both the 1st appellant and the respondent, it is clear that the application at the trial Tribunal was filed well within the time. I find this ground of appeal also to have no merit. In upshot, having gone through the whole evidence and considered the submissions by the parties, I find the entire appeal to have no merit and I dismiss it with costs. It is so ordered. 10/10/2024 12