LAND APPEAL NO 30876

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 30876 OF 2024 (Originating from Land Appeal No. 87 of2021 before Kibaha District Land and Housing Tribunal, and Land Case No. 299 of 2017 from Fukayosi Ward Tribunal) MUSTAPHA IBRAHIM MSIGALA (as an Administrator of the estate of the late IBRAHIM MUSTAPHA MSIGALA........... APPELLANT VERSUS SEMENI MZEE FUNUA.............................................................. RESPONDENT JUDGMENT 17/03/2025 & 27/03/2025 K. MSAFIRI, J. The appellant is aggrieved by the decision of the District Land and Housing Tribunal of Kibaha District on its appellate jurisdiction (herein as the appellate Tribunal) in Land Appeal No. 87 of 2021 which originated from the Land Case No. 299 of 2017 from Fukayosi Ward Tribunal. He has lodged the instant appeal advancing three (3) grounds of appeal which I will not reproduce herein. The appeal was heard by way of written submissions and this court scheduled the dates for submissions by the parties. However, while filing her reply to the memorandum of appeal, the respondent also filed a notice i of preliminary objection to the effect that this instant appeal is time barred. Basing on the trite law that the preliminary objection once raised has to be disposed of first before proceeding with the matter on merit, the court summoned the parties to address it on the issue of time limitation of the instant appeal. The parties appeared in person and the objection was argued orally. The respondent submitted briefly that the appeal is out of time since the judgment and decree of the appellate Tribunal was delivered on 26/3/2024 while the instant appeal was filed in this court on 06/12/2024. That under the provisions of Section 38 of the Land Disputes Courts Act, Cap 216, the appellant was required to file the instant appeal within 60 days from the date of the delivery of impugned judgment hence he is now time barred. The appellant also replied briefly that indeed he was time barred but has sought the extension of time to this court by filing Misc. Land Application No. 14393 of 2024. That the matter was before Hon. Dr. Laltaika,J, who heard the application and granted the extension of time as prayed. Indeed, Misc. Land Application was filed in this court by the appellant seeking for the extension of time within which to file an appeal out of time 2 against the judgment and decree of the District Land and Housing Tribunal in Kibaha in Land Appeal No. 87 of 2021. The application was heard and granted and the ruling was delivered on 02/12/2024 in presence of both parties. The appellant immediately on 06/12/2024 filed the instant appeal hence it is within the time. The preliminary objection raised by the respondent is therefore overruled. Having heard the parties on the preliminary objection and overruled itz this court went on to determine the appeal on merit by going through the written submissions by the parties. The submission in chief by the appellant was drawn and filed by Ms. Janeth Bisanda, learned Advocate while the reply submissions by the respondent was drawn and filed by the respondent herself. This is the second appeal from the first appeal which was determined by the Appellate Tribunal originating from the original land dispute which was determined by Fukayosi Ward Tribunal ( herein the trial Tribunal) in Land Dispute No. 295 of 2018. The dispute was over the suit property described as a piece of land with a size of 9 acres located at Kidomole, Bagamoyo. The trial Tribunal has declared the respondent the lawful owner of the suit property, the decision which was upheld by the Appellate Tribunal. / .• I I. 3 In the first ground of appeal, Ms Bisanda has submitted that the trial Tribunal and the Appellate Tribunal both erred by holding that the respondent is lawful owner of the suit property without regard that the respondent lacked locus standi or legal stand to sue on the matter hence tried the matter without jurisdiction. The counsel for the respondent stated that the respondent who was the applicant at the trial Tribunal did not sue as administratrix but rather in her personal capacity. That the respondent had no locus standi to sue in her personal capacity but ought to sue as administratrix of the estate of the late Mzee Funua having been granted letters of administration. That, Mzee Funua passed away and only the lawful appointed legal representative of the deceased could sue or be sued on behalf of the deceased. To bolster her arguments, the counsel cited the case of Marietha Gabo vs. Adam Mtengu, Civil Appeal No. 485 of 2022. She maintained that the respondent had no locus standi to institute the proceedings in the trial Tribunal and both the trial Tribunal and the first appellate court erred by allowing her to sue in her own capacity. In her reply, the respondent submitted that this ground of appeal has no leg to stand upon because the appellant never raised this issue at the trial Tribunal. She said that at the trial Tribunal she was directed to file the 4 probate case and the she obeyed and later on presented the certificate of administration, the fact which was not disputed by the appellant. The respondent submitted further that the decision of both trial Tribunal and the Appellate Tribunal was based on evidence in record and the appellant cannot bring this issue at the stage of the second appeal. The law is clear when it comes to the dispute which involves the deceased person that the administrator of the estate of is the one who has the power to sue and be sued but as the administrator and not in his/her individual capacity. There are numerous authorities on that cardinal rule that a person cannot sue or be sued in action involving the estate of the deceased unless that person is the administrator of that estate. In the instant appeal, the appellant claims that the respondent wrongly sued the appellant in her personal capacity instead of suing as administratrix of her late father. In this, I agree with the response of the respondent in her submissions that though this is the position of the law, this point have been raised late at this stage since this is the point which invite evidence to ascertain whether the disputed land was the property of the respondent as she claim that she inherited it from her late father or was the property of her late father? 5 I have gone through the proceedings of the trial Tribunal and it shows that the respondent was appointed the administrator of the estate of her father Mzee Funua. However the respondent claimed that after the distribution of the estate, she inherited the disputed land hence it was her personal property. The proceedings are not clear on whether at the time of the trial, the disputed land was the property of the late Mzee Funua or was the personal property of the respondent. The trial Tribunal which had the opportunity to assess the presented evidence found that the disputed property was the property of the respondent. The respondent did not raise this point at the first appellate Tribunal hence it did not have an opportunity to assess and determine it. For the above reason, I find that this ground of appeal cannot stand at this stage because the issue whether the disputed land was the personal property of the respondent or part of the estate of her late father was determined at the trial Tribunal whereby the respondent was declared the lawful owner of the disputed land. This ground has no merit at this stage of appeal and I dismiss it. The second ground is that the Ward and appellate Tribunal erred for failing to take an insight into the issue of jurisdiction based on the pecuniary jurisdiction of the 9 acres of land in dispute. -A[! , 6 In the submission, Ms Bisanda, counsel for the appellant stated that the first appellate Tribunal did not consider that the value of the disputed land is above nine (9) acres which is equal to TZS 15,000,000/- which is above the pecuniary jurisdiction of the Ward Tribunal. The counsel was of the view that the Ward Tribunal had no pecuniary jurisdiction to entertain the dispute. That the first appellate Tribunal erred in not considering the value of the disputed land and dismissed it on the reason for want of evaluation report. The counsel argued that the appellate Tribunal erred in law when it came up with the issue of evaluation report and made findings on it without summoning the parties and hear them first before determining it. To cement this, the counsel cited the case of Amani Safari Adventure Ltd vs. Retrofuel (T), Civil Appeal No. 67 of 2023, TZHC 23367. In response, the respondent contended briefly that the matter of jurisdiction is the matter of law but this point was not raised at the Ward Tribunal so that the trial Tribunal could have estimated the value of the suit and see if the land was above the value to be entertained by the trial Tribunal. When determining this ground which was also raised by the appellant at the first appellate Tribunal, the Chairperson was of the view that this point of pecuniary jurisdiction would have been properly raised before the trial Tribunal. In addition, the Chairperson found that the appellant did not show how he has arrived to the claimed value of the disputed land since there was no valuation report but mere words of the appellant. In determining this ground, I agree with the findings of the Chairperson at the first appeal that there was no any base or proof upon which the appellant has based his claim that the disputed land is worth TZS 15,000,000/=. The appellant claim is based on his mere words and the Tribunal could not rely on the appellant's mere words to determine on the important issue of the value of the disputed land. It is trite law that who alleges must prove but the appellant did not show the Tribunal or this court how he has arrived to his claim that the disputed land is worth the said amount of money. I am of the view that the Chairperson at the first appeal was correct to find that the appellant failed to prove his claims on the value of the disputed land. I also find this ground to have no merit and I dismiss it. On the third ground, the appellant stated that the Chairperson at the appellate Tribunal erred and was misdirected in approving the Ward Tribunal decision which held that the respondent is a lawful owner without adequate evidence both orally and in documentary evidence. Af I • 8 In the submission, Ms Bisanda, counsel for the appellant started by citing the provisions of Sections 110 and 111 of the Evidence Act, Cap 6 R.E 2022 which requires that whoever alleges have a duty to prove the allegations. The counsel submitted that the respondent did not prove the ownership of the disputed land since the documentary evidence was required to prove ownership of the property. That the respondent failed to testify how she acquired the ownership of the disputed land and that both Tribunals failed to evaluate properly the evidence on record. The respondent replied and submitted that the trial Tribunal analysed and evaluated the evidence produced in the Ward Tribunal and it is the appellant who denied himself the right to be heard as he failed to appear before the trial Tribunal while he was aware of the matter. This ground of appeal was not raised at the first appeal level where the appellate Tribunal had the mandate to reevaluate the evidence adduced at the trial and come out with its own conclusion. At the trial, the proceedings went exparte against the appellant. The trial Tribunal was the one which heard and took the evidence of the respondent who was the claimant. The trial Tribunal made an analysis of the evidence and was satisfied that the respondent has proved that she is the owner of the disputed land. /W y. 9 Like the finding of the Chairperson at the appellate level, I have no any reason to fault the decision of the trial Tribunal which had the opportunity of hearing and taking the evidence of the respondent and assess her credibility and the evidence as a whole. I find no reason to fault both the decision of the trial Tribunal and the appellate Tribunal. I also dismiss this ground of appeal. In upshot and for the foregoing reasons, I find the entirely appeal to have no merit and I dismiss it with costs. It is so ordered. A. MSAFIRI JUDGE 27/03/2025 10