mohamedi kijonjo vsathumani abdallah makungwa 2020 tzhclandd 2275 18 september 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPEAL NO. 95 OF 2018 (From the Decision of the District Land and Housing Tribunal of MKURANGA District at MKURANGA In Land Case Appeal No. 126 of 2017 and Original Ward Tribunal of VIANI Ward in Application No. 50 of 2015) MOHAMEDI KIJONJO................................................. APPLICANT VERSUS ATHUMANI ABDALLAH MAKUNGWA ....................... RESPONDENT JUDGMENT S. M. MAGHIMBI, J: The appellant herein, Mohamedi Kijonjo was dissatisfied by the.decision of the District Land and Housing Tribunal for Mkuranga (the tribunal) and has appealed to this court on the following grounds: 1. That the Honourable trial tribunal erred in law and facts for failure to consider and give sufficient weight the submission by the appellant. 2. That, the Honourable District Land and Housing Tribunal erred both in law and facts to consider the irregularities in the proceedings and decision of the Vianzi Ward tribunal. The appellant's prayer was that this Hon Court allow the appeal by quashing the decision of the first tribunal and that of the Vianzi Ward Tribunal (the trial tribunal). In this court the appellant was represented by Mr. Hosea Chamba, learned Advocate while the respondent enjoyed the i services of Mr. Edward Mkungano, learned Counsel. By an order of the court dated 19/09/2019, the appeal was disposed by way of written submissions. Mr. Chamba's main argument in this appeal is that in Land Revision No. 126 of 2017, the appellant's right to be heard was again denied as his application was dismissed upon finding that the appellant waived his right to defend the suit at Vianzi Ward Tribunal. He submitted that the first Tribunal did not take into account the circumstances and irregularities in the conduct of trial at Vianzi Ward Tribunal as the appellant claims to have not been accorded a fair trial as his right to be heard was denied. He also brought to the attention of this court that the file and/or the records from Vianzi Ward Tribunal, which are the center of contention in this appeal, are missing from the court file and that even the Tribunal decided the revision without records from the ward tribunal, a fatal irregularity. He also pointed out that it was at the revision stage where the respondent alleged to have been appointed as an administrator of the estate of the late Abdallah Makungwa and attached a copy of the said letter of Administration. He argued that the said letter of administration shows that the appointed administrator is Athumani Abdallah Saidi, and not Athumani Abdallah Makungwa or Athumani A. Gamba, the names which the respondent used to sue the appellant. Further that the said letter of administration was granted on the 23rd March 2017 and on the said date, the appeal at the Tribunal was yet to be decided for respondent to go and secure the letter of administration upon being advised by the tribunal. This fact raises doubt on the way the respondent got the said letter of 2 administration, and whether the said letter of administration is his, considering the names appearing therein differs to the names of the respondent. Mr. Chamba submitted further that the interest of Justice demands that each party to the dispute to be heard, had the appellant been summoned as it happened in the former suit, he would have appeared to defend the suit. That it is on records the appellant has resided there for over twelve years (though the respondent stated that the appellant has lived in the suit premises for ten years). All thing being equal, the appellant reasonably couldn't afford to leave the suit be held ex-parte. Mr. Chamba also hallenged the composition of Vianzi Ward Tribunal, something which he argued the Tribunal did not address the composition but rather, held that the appellant waived his right to be heard. He argued that even if the appellant waived his right to be heard, it does not cure defects in the ex-parte proceeding provided that the ward tribunal was not duly constituted, hence the trial therefrom is nullity. In his reply, Mr. Mkungabo submitted that, the appellant was given the right to be heard but he refused to defend his case. That this fact is clearly started in the Ruling of the Tribunal hence the ground is baseless and it does not hold water. He continued submitting that the Tribunal decided the revision while having all records from the Viazi Ward Tribunal and this is clearly stipulated at page three (3) in paragraph one (1) of the same ruling where the tribunal referred to Land Case No. 47/2016 and Land Case No. 50 of 2015 3 before the Vianzi Ward Tribunal. Mr. Mkungano submitted further that this ground was not stated in the Revision application and even in this Appeal it is not among the grounds of appeal. He argued that the ground is baseless as the appellant intends to mislead this Honourable court. On the issue of when the letters of administration were begotten by the respondent, Mr. Mkungano argued that the ground is also not in the grounds of appeal and should be disregarded. His prayer was that the appeal is dismissed with costs. In rejoinder, Mr. Chamboa reiterated his submissions in chief and added that Mr. Mkungano is not even certain of the number of case before the ward tribunal subject of this appeal. While he says that it was a Land Case No. 47 of 2016, the respondent instituted a complaint in ward tribunal in the year 2017 and that the purported letter of administration was granted on 23rd March, 2017. He concluded that there was no proper and fair trial at the ward tribunal and thus, the decision given contain illegalities and has no number of the case. I have considered the submissions of both parties and gone through the entire record of this case, I will now determine the grounds of appeal. Initially I am in agreement with the finding of the tribunal that the matter that was tabled before her for revision was not a res judicata of the Land Case No. 50/2015. This is so because at the trial tribunal in Land Case No. 50/2015, the respondent herein sued in his personal capacity while he admitted that the farm belonged to his late father. He should have hence lodged a case in his capacity of administrator of his late father's estate 4 which at the time he did not have letters of administration. This was the reasoning of the District Land and Housing Tribunal in Land Appeal No. 47/2016 and he ordered parties to go back to the trial tribunal for trial de- novo upon the respondent getting letters of administration of his father's estate. However, on my part, I find some ambiguities in the said orders of the District Land and Housing tribunal in Land Appeal No. 47/2016 which to a great extent have cause the current commotion. To be specific, the ambiguity of the tribunal is elaborated as hereunder. Upon finding that the respondent herein did not have a locus to sue the appellant, the tribunal should have just allowed the appeal and order the interested party to bring a fresh suit only with an emphasis that the respondent should have first obtained locus to claim the land by obtaining letters of administration. Instead, the tribunal allowed an incompetent matter to be retried, an order which did not rectify the fact that when instituting the initial Land Case No. 50/2015 the respondent herein did not have a locus to sue. In order to rectify the error above and put the records right, I hereby invoke my revisional powers and quash the order of the tribunal in Land Appeal No. 47/2015 which ordered the hearing of the Vianzi Ward Tribunal's Land Case No. 50/2015 de novo. Instead, I order that the said Land Case No. 50/2015 as incompetent hence struck out for lack of the locus standi of the then applicant (respondent herein) to bring a case in his personal capacity. 5 Having done so, let me now turn to the remaining grounds of appeal, the appellants ground of appeal is mainly on the fact that he was not afforded the right to be heard. I have gone through the whole records of the Revisional Tribunal in Misc. Land Application No. 126/2017 and I have not seen anywhere that the number of the subsequent case at the Vianzi Ward Tribunal was ever mentioned. The whole decision of the Revisional Tribunal records the number of the case at Vianzi Ward Tribunal as "...../2O17". This means that there was no number of the case assigned by the Ward tribunal. It is safe to conclude that the purported decision was just a piece of paper prepared by the "Ward Tribunal" to give victory to the respondent. I actually wonder if there was ever on record, a file opened for the disputed land when the respondent purportedly lodged his complaint. I have further noted that the tribunal relied on the typed proceedings of Vianzi Ward Tribunal which at no place mentioned the number of the case let alone the fact that there is no original file records of the Vianzi Ward tribunal. This makes me wonder as to where the tribunal got the records of revision to act upon. In the absence of those records, it is safe to conclude that there was no case filed at the Ward tribunal. Owing to that, I hereby nullify both the ruling and drawn order of the tribunal in Land Revision No. 126/2017. Since there is neither the records no case number of the Ward Tribunal, I further nullify whatever that the Ward Tribunal alleged to have issued (I am hesitant to call it a decision as there is no case number) that the Revisional Tribunal acted upon. For the sake of clarity and avoidance of confusion, all previous litigations on this disputed land leading to the Land Appeal No. 47/2015 are hereby 6 nullified. Since the Land Case No. 50/2015 at the Vianzi Ward Tribunal was also struck out, the position of the parties goes back to where the parties where before the Land Case No. 50/2015 was filed at the Vianzi Ward Tribunal as if no litigation was ever filed. Before I put the pen down, I find indebted to address the misconduct I have observed on the part of the Vianzi Ward Tribunal which was blessed by the Mkuranga District Land and Housing Tribunal. As argued by the appellant and observed on the records, I have not seen any records of the Land Case that was a subject of revision, nor a case number on the purported decision as well as the decision of the Revisional Tribunal. I have therefore wondered how someone's right can be so manipulated by few individuals. This circus almost permanently deprived the appellant's right to a fair trial due to this. This misconduct cannot be left unattended hence owing to that, I further order that the Honorable Deputy Registrar of this court conducts an inquiry on the validity of the decision which the Revisional Tribunal relied on to proceed with the Misc. Land Application No. 126/2017 and if the records are so missing at the Ward Tribunal, then the proper disciplinary measures be taken against the members of the Ward tribunal who purportedly sat and determined the rights of patties over the suitland. In conclusion, I hereby nullify the ruling and drawn order of the Revisional for want of records of the Ward Tribunal and further nullify the purported decision of the Ward Tribunal. The parties position goes back to where no litigation was ever filed in court therefore should any of the parties be interested to pursue his right over the Suitland then he should do so. It 7 must however be noted that the respondent's locus in any subsequent litigation shall be that of the administrator of the estate of his late father. Given the nature and circumstances of the case, costs of this appeal and the Revision at the DLHT are awarded to the appellant. Dated at Dar es Salaam this 18th day of September, 2020. 8