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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND APPEAL NO 26647 of 2023 (Arising from the decision of the District Land and Housing Tribunal for Temeke at Temeke delivered on October 2023 by Hon. PI Chinyele in Land Application No. 83/2019) MICHAEL SELEMAN (Administrator of the Estate of the Late LEONARD MICHAEL SELEMAN)....1^^ APPELLANT INSPA SINYIZA 2^° APPELLANT VERSUS NSIA JONATHANI KIMARIO 1®^ RESPONDENT WILLIAM SHIJA 2"^° RESPONDENT HAIMATI MILANDU 3^° RESPONDENT RENALDA SAMWEL MAKUNDI 4™ RESPONDENT JUDGMENT Date of last order;22/03/2024 Date of Judgement; 30/04/2024 S.D. MWAIPOPO,J This Appeal emanates from the Judgement and Decree In Land Application no. 83/2019 decided at Temeke District Land and Housing Tribunal on 17^^ day of October 2023. The Applicant who Is now the first Respondent In this appeal filed an Application before the Tribunal claiming as against the Appellants and the 2"^, 3'"^, and 4^^ 1 Respondents her six acre land located at Vumllia ukooni, KIsarawe II Ward KIgamboni, Dar es salaam. The Application contains the following reliefs; a) Declaration that the land In dispute Is the property of the Applicant and for the order of eviction of the Respondents; b) General damages c) Costs of this Application d) Any other remedy this honourable Tribunal may deem just to grant. The 2"^ and 4^^ Defendants filed their Written Statements of Defence In order to object the Application while the 2"^ and 5^^ Defendants did not file their Defence. Therefore, the matter was heard exparte against them. The matter was then fixed for hearing whereby two Issues were formulated to facilitate the hearing of the Application as follows; 1) NanI nl mmlllkl halall wa eneo lenye mgogoro 2) Nafuu zipl wadaawa wanastahlll. In the course of hearing, the Applicant paraded three witnesses while the Defence side had four witnesses. Upon hearing the parties, the Tribunal in the finai anaiysis granted the Application in favour of the Appiicant and ordered parties to bear costs of the suit. Aggrieved by the said decision, the l^^and 4^^^ Respondents, appeaied to the High Court of Tanzania against the said decision based on the following grounds; 1. That the honourabie chairperson erred both in law and fact for failure to properly evaluate the evidence in record as adduced by both parties, hence reached into a wrong decision; 2. That the Chairman of the Tribunal erred in iaw and in fact for deciding in favour of the Respondent whiie she failed to fully discharge her burden of proving her allegation on the baiance of preponderance as required by the law hence made an erroneous decision. 3. That the Chairman of the Tribunai erred in iaw and fact by ignoring part of the evidence adduced by parties and their witnesses during the hearing and not reflecting such evidence anywhere in her decision, which evidence was very crucial to ascertain the truth on the original owner of the disputed matter, hence reached into an erroneous decision. 4. That the Chairman of the Tribunal erred in law for misleading herself on the proper application of the well celebrated legal principle of nemodat quod habeat by applying it on the person (DWl) who sold the suit premises to other persons with the consent, awareness and full cooperation of the original owner of the same, instead of using the same on the person who sold the suit premise and could not prove ownership of the same before selling the same to the Respondent, thus wrongly held in favour of the Respondent; 5. That, the Chairman of the Tribunal erred both in law and fact by shifting the burden of proof from the Respondent to the Appellant, thus reached into a wrong decision. 6. That the Chairman of the Tribunal erred in law and fact by holding and declaring the Respondent as the lawful owner of the suit premises without fully discharging her duty of proving her case. Thus, the Appellants prayed for the decision of the Tribunal in the above-mentioned matter to be quashed and set aside for being erroneously entered and prayed for the appeal to be allowed with costs. The hearing of the appeal proceeded by way of written submissions pursuant to the timetable drawn by the court. At the commencement of hearing the Appellants were represented by learned Advocate Julieth Venant Rushuli and the Respondents were Respondents represented by learned Advocate Yuda Thadei Paul. Submitting in support of appeal, the appellants began by giving a background of the matter that the present appeal originates from the District Land and Housing Tribunal at Temeke where the Applicant one Nsia Jonathan Kimarto sued the Respondents on trespass on her land which she alleged to have purchased on 5^*^ day of November 2011 at the purchase price of 6,500,000/= from the 2"^ Respondent and the said sale was witnessed by the Ward Chairman and the document stamped. The Applicant continued to enjoy the occupancy of the land until 2018 when the 1^^ Respondent (Michael Seleman as an Administrator of the estate of late Leonard Seleman trespassed into her land and sold part of the land to the 4^"^ Respondent and to unknown person. The matter was heard and decided in favour of the Applicant (Nsia Jonathan Kimaro), the and 4^^ Respondents being aggrieved with the decision preferred an appeal before this court containing six grounds of appeal whose analysis is summarized herein below. Starting with the and 3^^ grounds of appeal as argued by the Appellants, the learned counsel contended that they both touch on the issue of improper evaluation of evidence. He contended that the Tribunal improperly evaluated the evidence on record and ignored crucial parts of the evidence thus reached into an erroneous decision. He further contended that the Respondent herein (SMI) asserted that she is the lawful owner of the land as she bought the disputed land from one William Shija, the 2"^ Respondent in the trial Tribunal on 5*^^ November 2011. She further testified that William Shija who was also SU2 was allocated the land by the Village authority and the document which he produced to prove his ownership was DAWASA document for compensation. SM3 testified that he was the local government leader who witnessed the sale agreement between Nsia Jonathani Kimario and William Shija but he stated that he was not the local leader when William Shija acquired the land from the i Village. He believed that Wiiiiam Shija owned the land because he was involved during DAWASA assessment for compensation. With regard to the evidence tendered by the Respondent then (the Appellant herein) i.e. Michael Seleman, the learned counsel for the Appellants testified that he is the iegal administrator of the estate of the late Leonard Michael Seleman and the suit land belonged to her late mother one Lucia Shepa, that her mother acquired the said iand in dispute in 1980s by clearing the bush. That the said Lucia Shepa and her grandson Leonard Michael sold the piece of land occupied by her grandmother to other people including the 4^^ Respondent. The 2"^ Respondent testified that he bought the disputed iand from Leonard Michael SelemanI which was initiaily owned by her grandmother. Su4 testified that Lucia Shepa and her grandson Leonard Michael Selemani started to sell the land to other people and that there is a possibiiity that there are some people who stood in the areas that were not theirs during the evaluation exercise done by DAWASA including William shija. The learned counsel submitted that the question which was supposed to be resolved was who bought the land from the rightful owner since there were two sale agreements; one between William Shija (Seller) and Nsia Jonathan Kimario (Purchaser) and the second one between Leonard Michael Seleman (Seller) & Inspa Sinyiza (Purchaser). He submitted further that; the tribunal was required to satisfy itself on who had a better title between Lucia Shepa and William Shija to answer the question of ownership between the Appellant and the Respondent. He argued that Wlliam Shija claimed to be allocated the land by the Village Authority although he failed to prove the same, he instead tendered DAWASA assessment Report which does not relate to land and yet the Tribunal declared Respondent as the lawful owner. He submitted further that where a party fails to cross examine, he/she deemed to have accepted the facts. He referred the court to the case of Eliah s/o Eniyoye @Nakaza v Republic Economic Appeal No.l of 2023 HC Moshi and also the case of Kanaku Kidari Vs The Republic Criminal Appeal No. 326 of 2021 (unreported). He therefore concluded that there was no proper scrutiny of evidence of SUl, SU3, and SU4 by the Tribunal. i jWith regard to the 2"^ and 5^^ grounds of appeal the appellants contended that Tribunal erred in law and in fact in deciding in favour of the Respondent while she failed to fully discharge her burden of proving her allegation on the balance of preponderance as required by the law and also it erred in law in shifting the burden of proof from the Respondent to the Appellants thus reached a wrong decision. The learned counsel submitted that that that the Respondent did not discharge her burden pursuant to section 110 and 112 of the Evidence Act Cap 6 RE 2019 as the Respondent could not prove that the land belonged to William shija who sold the land to him. The latter only produced DAWASA Report and could provide any document of ownership of land from the Village Authority. Therefore, the appellant argued that the land belonged to one Lucia Shepa therefore the Tribunal erred in law in granting the decision in favour of 1^*^ Respondent. Regarding ground 4 of appeal, the Appellants submitted that the Chairman of the Tribunal erred in law for misdirecting herself on the proper application of the well celebrated legal principal of nemodat quod habeat by applying it on the person DWl) who sold the suit premises to other persons with consent, awareness and full cooperation of the original owner of the land, instead of using the same on the person who sold the suit premises and couldn't prove ownership of the same before selling the same to the Respondent, thus wrongly held in favour of the Respondent.'The appellant contended that the Respondent bought the land from some one who did not have title to the land. Therefore, the Tribunal erred to grant her ownership. Moving to the 6^^ ground of appeal, the appellants argued that the Tribunal erred in law and fact by holding and declaring the Respondent as the lawful owner of the suit premises without fully discharging her duty of proving her case. The appellant reiterated his submissions on the previous grounds of appeal that the Respondent did not discharge her burden of satisfying the court that she had a good title over the Appellant since the person who sold land to him had no good title. 10 Submitting in rebuttal, the learned counsel for the learned counsel for the Respondents disputed all the grounds of appeal and submitted with regard to the and grounds of appeal that the Chairman correctly and properly evaluated the evidence on record and reached to the correct conclusion. He referred the court to page 14 of the typed judgment. With regard tothe 2 and 5 grounds of appeal the learned counsel for the Respondents submitted that the Chairman did not shift burden of proof to the appellant rather he clearly stated in his judgment that 1st respondent had proved his case on the balance of probabilities which is the standard required by the law. Regarding the 4th ground of appeal, the learned counsel for the 1st respondent submitted that Tribunal rightly applied the principle of nemodat quod habeat by holding that that the 1st appellant had no good title to sell the land in dispute. As for the 6th ground of appeal, the learned counsel for the Plaintiff stated that 1st respondent in this appeal discharged her duty at the required standard. 11 In their rejoinder, the Appellants reiterated their submissions in chief. I shall not reproduce them. Following the submissions of the parties, and in the course of perusing the proceedings of the TribunI for purposes of composing the Judgement, i discovered that, the 1st Respondent Nsia Jonathan Kimario died in the course of hearing the matter before the Tribunal and no procedure for appointing the leagi representative or Administrator of the estate was done and the tribunal proceeded with the matter till the end without any representation from her side and secondly the appeal before this court was instituted against Nsia Jonathan Kimaro, the deceased person directly. Therefore on 22nd March 2024 i ordered parties to address the court on the two issues by way of written submissions pursuant to the timetable drawn by the court. The Appellants complied with order while the learned counsel for the 1st and 2nd Respondents did not file any submissions either in the eCMS.Therefore, this court inferred that they forfeited their right of defending their case. It was as good as non appearance and judicial consideration of these issues which were raised by the court, proceeded exparte against them. 12 Submitting jointly in support of the Appeal, the Appellants contended that, the issue of the death of the deceased and the continuence of the proceedings was out of their hands and comprehension as the chairman of the Tribunal was full aware of the demise of the applicant being notified of the same by the Applicant's counsel, who further prayed for the hearing of the matter to be adjourned until the appointment of the Administrator of estate of the Applicant, Nsia Jonathan Kimaro was done. However, the matter was kept being adjourned regularly and the counsel for the Applicant never entered appearance since then and the Appellants had no information from the Applicant's side. The Appellants submitted further that, having seen nobody showing up at the Tribuna from the Applicant's side and her Advocacte's absence for more that three months, the Appellant's counsel moved the Tribunal to invoke her powers to dismiss the Application subject to provisions of Rule 15(a) of the Land Disputes (DLHT) Regulations, 2003 on the ground that the matter had been abandoned. However, the Tribunal ignored their plea and ordered the hearing to proceed with he defence of the Respondents(Appellants herein), the order which they could not 13 disobey. Therefore the matter proceeded for trial even after the death of the Applicant and abandonment of the matter for more than three months. Further, they submitted that, since the matter was decided in favour of the 1st Respondent (the deceased), the Appellants whose time limit to appeal ran against them had no other option than to institute this appeal in the same name of Nsia Jonathan Kimaro( the deceased) as the decision of the trial tribunal also bears the same name. Having meticulously reviewed the submissions of the Appellants on the issues raised by the court herein, the central question to be resolved is whether it was proper for the tribunal to proceed with the hearing of the matter in the mist of the death of the Applicant and in the absence of the legal representatve and secondly whether the subsequent filing of the appeal by the name of the decesead person was proper; Having gone through the proceedings and submissions of the Appellants herein there is no dispute that the 1st Respondent herein 14 Nsia Jonathan Kimaro is a deceased person and that she died in the course of hearing of the matter at the Tribunal and the tribunal was dully informed of the same. See proceedings of the Tribunal dated 23/3/2023 where the matter was set for hearing and the Advocate for the Applicant (Yuda Tadei) informed the court as follows; Baraza: Shauri lipo kwa kusikilizwa Wakili Yuda Tadei:Mteja wangu alifariki Januari wamesajili mirathi. Tunaomba tarehe nyingine. Amri: 1. Kutajwa 16/5/2023 2. Wadaawa wafike S.GND. Chinyele 23/3/2023 base on the proceedings above, the Advocate who was representing her prayed for another date of hearing whiie the family was still processing the probate proceedings. 15 However, there is no dispute that there is no any procedure that was carried in order to appoint a iegal representative to proceed with proceedings on her behalf pursuant to Order XXII Rule 3(2) of the Civil Procedure Code Cap 33 RE 2019 even after the learned advocate had informed the Tribunal about the death of her client. And even after after the expiration of the period of three months. This promted the Advocate the for the Appellants herein to move the tribunal to dimsiss the matter under Regulation 15(a) of the DHLT . Regulations. She stated as follows; Wakili Audax: shauri linakuja kwa kwa ajili ya kusikilizwa kifungu cha 15(a) ya GN 174/2023 kinaelekeza mashauri yaliyotelekezwa na Mdai yafukuzwe kwa mdai kutokuwepo However, the Tribunal ordered the matter to proceed in the absence of the deceased and without any legal representative. It ordered as follows; Mdai alimaliza ushahidi wake, wadaiwa wanaendelea na utetezi. Kwa kuwa upande wa mdai hawaonekani, ushahidi utaendelea kutolewa 16 na hatimaye na hatimaye uamuzi bila ya uwepo wa upande wa mdai. Wakili Audax; Ninaomba niendelee na Mdaiwa wa 4 na tutakuwa na shahidi mmoja Therefore the matter proceeded till the end. Based on this scenario, it is my settled position that the Tribunal ought to have declared the matter abated after 90 days due to inaction on the part of the Applicant's relatives to carry out procedures for appointing the legal representative. Therefore, any proceedings which continued thereafter were contrary to the legal procedures regardless of the fact that the deceased won the case as per the Tribunal's Judgement. This also is in consideration of the fact that the interest of the deceased person was not taken into account in the proceedings which followed after her death, such as testimony of the Appellants and other Respondents where she could not participate and never had a chance of cross examining the witnesseses and enhancing their case in case of any appeal, they never participated in any execution processes of the Judgement if 17 any, the deceased person ended up being sued in the appeal as a deceased person instead via her administrator of the estate. This court has asked itself questions as to how the learned counsel for the 1st Respondent herein got his instructions of repsresenting the 1st Respondent who is a deceased person in the absence of the procedure for managing the deceased estate being carried out. In view of the analysis above,and since the learned counsel for the 1st Respondent did not file his submissions to justify the continuence of the proceedings of the Tribunal in the absence of the deceased person or her legal representaive, i declare that the matter in the Tribunal ought to have abated after 90 days of inaction on the part of the 1st Respondent's counsel. In the upshot, i proceed to nullify the proceedings. Judgement and Decree of the Tribunal in land case no 89/20219 since they were a nullity and order that the matter be filed afresh by any party with all parties being duly joined or when all parties have been duly joined. 18 4^ In the end result, I allow the appeal based on the reasons indicated above which were initiated by the court suo motto. Each party shall bear Its own costs. It is so ordered. The right of appeal is fully explained. Dated at Dar es salaam this 30'^'' Day of April 2024 S.D MWAIPOPO N JUDGE 30.04.2024 19