NELSON MICHAEL VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SUB REGISTRY OF ARUSHA

AT ARUSHA LAND APPEAL NO. 10478 OF 2024 (C/F District Land and Housing Tribunal for Babati in Land Application No. 92 of 2021) NELSON MICHAEL LUKUMAY........................................................... APPELLANT

VERSUS SUZANA WILLIUM KIVUYO......................................................1st RESPONDENT

RUAICHI LOTUBUKOKOKI KIVUYO (As Administrator of the Estate of the Late Willium Latubukokokoki Loilole Kivuyo) ............................... 2nd RESPONDENT

JUDGEMENT 17th October & 29th November, 2024 KAINDA, J.: Before the District Land and Housing Tribunal for Arusha at Arusha, the appellant, unsuccessfully sued the respondents in Land Application No. 92 of 2021. The dispute which gave rise to the suit involved un-surveyed piece of land measuring 228 meters length and 20 meters width, located at Lekamba Ward, within Arumeru District in Arusha Region (the suit land). The appellant/applicant alleged that in June, 2017 bought the suit land from the first respondent, Suzana William Kivuyo at the consideration of TZS. 12,000,000/=. The appellant alleged further that after he had purchased the suit land, he went on utilizing it for agriculture activities by planting seasonal crops. i But to his surprise, in the rain season of March/April, 2021, having planted maize and beans on the disputed land, the second respondent trespassed onto the suit land and planted maize on top of what was planted by the appellant. The appellant prayed for the trial Tribunal to be declared a lawful owner of the suit land and that the second respondent to be permanently restrained and restricted from trespassing and or interfering into the disputed land. On the other hand, the second respondent claim that he is the appointed administrator of the Estate of the late William Lotubukokoki Loilole Kivuyo who passed away on 29th August, 2004 and left

undistributed substantial properties which included the land in dispute, two wives whereby the first respondent herein was his second wife. Further, he averred that, since the suit land was part and parcel of the late William Lotubukokoki Loilole Kivuyo estate, and because the said estate has never been distributed to anyone among the deceased heirs, the first respondent had no title to sell or to dispose it. In its considered judgement, the trial Tribunal found the claim not proved and it dismissed it. Aggrieved, the appellant is before this court with the petition of appeal grounded on four complaints. However, for the reasons that will follow shortly, I will not reproduce or discuss the four grounds of appeal. 2 The hearing of the appeal was by way of written submission. I thank the parties for their compliance to the scheduling order as to the filling of the respective documents. The appellant before submitting on the points of appeal, decided to consider on a preliminary issue with regard to the competence of appeal before the court. It is undisputed fact that the trial Tribunal proceeded with the hearing of the application before it in absence of the first respondent despite being there a report that she is dead. The trial Chairperson is on record that the first respondent died before the completion of the matter. Page 3 of the typed judgement of the trial Tribunal

read; " Punde baada ya shauri kufunguliwa, siku ya kwanza ya kutajwa kwa shauri, Tarehe 5 Agosti, 2021 iiitoiewa taarifa kutoka kwa mjibu maombi wa 2 kwamba mjibu maombi wa 1 aiifariki tangu mwezi Juiai, 2021 Submitting on the propriety or otherwise of the proceedings before the Tribunal, the appellant argued that, it is a position of law that the suit instituted against the deceased person is a nullity. Nonetheless, the appellant went on, the law provides that, if the deceased person was one among the several defendants/ respondents like in the present appeal, then the suit should proceed against the surviving defendants/ respondents and cited the case of Robert Elieza v. Felister Kayange & Another, Land Revision No. 10 of 2022. As to way forward, the appellant submitted that, the only 3 anomaly seen from the trial Tribunal proceedings is that; the name of the first respondent who is a deceased proceeded to appear irrespective of the order for the case to abate against her while the law require the same to be struck out from the record. It was his prayer that this court should use its supervisory power over the subordinate court to strike out the name of the first respondent from the records as no prejudice will be occasioned. On their party, the second respondent submitted that it is of no dispute that the first respondent is dead. However, his death occurred after the filing

of the application. The respondent was of the view that, since the appellant had ample time to find a legal representative of the deceased first respondent to be joined but no one was appointed, then the tribunal was right to proceed with the hearing. According to the available record, the application was instituted on the 10th June, 2021 while the available report as produced at the Tribunal and revealed in both the proceedings and the judgement of the Tribunal is to the effect that the first respondent expired in July, 2021.1 have also noted that, irrespective of the first respondent's demise, no one applied to be joined in the proceedings in place of the deceased. The name of the deceased first respondent continued to appear in the proceedings of the trial Tribunal and the appeal in the court. The omission, firstly, not to join the legal representative and secondly, the appearance of the name of the deceased in 4 the proceedings constituted a serious material irregularity. Faced with a similar problem, the Court of Appeal stated in Florian Pantaleo Mtui v. Robert Inyasi Minja, Civil Appeal No. 420 of 2021 [2023] TZCA 17728 (TanzLII) that; "... the anomaly is indeed, a fatal one because, after the 1st plaintiff and the 1st defendant has passed away, they should not have appeared as parties in the trial courts'proceedings, judgement and the decree. Since their names continued

to feature as shown above, the proceedings were rendered irregular and so were the judgement and the decree..." In the present appeal, and for the reason stated above, I am settled that the proceedings of the District Land and Housing Tribunal for Arusha at Arusha in Land Application No. 92 of 2021 dated 5th August, 2021, when the passing away of the first respondent was communicated to the court onward are a nullity and inconsequential. The first respondent died in July,2021 and the matter proceeded to hearing without being heard. The fundamental right to be heard was not accorded to the deceased. This, in my view, occasioned injustice. In the exercise of revisionary powers conferred to this court under the provision of Section 43 (2) of The Land Dispute Courts Act, [Cap 216, R.E 2019] to nullify the proceedings of the Tribunal starting from 5th August onward. The record be remitted back to the trial Tribunal for a trial starting 5 from 5th August, 2021 when the said irregularity occurred. Considering the circumstances of the matter, I make no order as to costs. It is so ordered. S. J. KAIN DA

JUDGE 12.12.2024. 6