NYANKWELI JUDGMENT

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 28631 OF 2023 (Arising from the decision of the land and housing tribunal for Mwanza at Mwanza in Application No. 38 of 2012) NYANKWELI MWIKABE --------------------------------------- APPELLANT VERSUS 1. EMILIANA LUGANGILA 2. JAPHET LUGANGILA ---------------------------------RESPONDENT 3. MTONDI MAIGE JUDGEMENT 26th June & 26th July 2024 CHUMA, J. Aggrieved by the decision of the District Land and Housing Tribunal for Mwanza (herein the DLHT) in Application No. 38 of 2012 the appellant preferred this appeal fronting four grounds of appeal. Briefly counted, at the DLHT the applicants (herein the respondents) sued Mtondi Maige (deceased) and Nyankweli Mwikabe for a piece of land at Igogo Mwanza as they claim to buy the said piece of land from Chiku Shabani in 1995 who said to have purchased it from Monica Maige (the appellant's mother) and after her demise, the 3rd respondent Mtondi Maige 1 (now deceased) sold the disputed land to the appellant in 2008. The appellants had the following grounds of grievances; - i. That the honorable Chairperson of the trial tribunal erred in law and fact for failure to properly analyze evidence on record which failure occasioned a miscarriage of justice ii. That the honorable chairperson of the trial tribunal erred in law and fact in deciding application no 38 of 2012 in favour of the 1st and 2nd respondents herein by relying on and basing his decision on exhibits that were erroneously and irregularly admitted into evidence iii. That the honorable Chairperson of the trial tribunal erred in law for failure to append his signature at the end of each witness’s evidence as imperatively required by the law thereby rendering the entire proceedings nullity iv. That the honorable Chairperson of the tribunal erred in law to hear and finally determine Application No 38 of 2012 in the absence of the 3rd respondent herein who was reported to have died before without joining his administrator 2 At the hearing of this appeal, the appellant was represented by Mashaka Fadhili Tuguta while the 1st and 2nd respondents were represented by James Paschal Njelwa, learned advocate and the 3rd respondent was nowhere to be found. In his submission, Mr. Tuguta began by abandoning the 3rd ground of appeal and commenced his submission on the fourth ground whereby he argued that the trial tribunal erred in law and fact in determining the application no 38/2012 without affording the administrator of 3rd respondent who died before the case reached its finality. He referred this court on page 75 of the typed proceedings in the Corum dated 16/8/2022 whereby the record reveals that the 3rd respondent was absent and the tribunal was informed about the death of the third respondent. Mr. Tuguta submitted that after the adjournment of the case on page 76 the tribunal ordered the Administrator of the 3rd respondent to be appointed in order to proceed with the case but on 12/4/2023, the tribunal proceeded to frame issues for determination and later trial began without tracing whether the order for appointment of an administrator was complied with or whether the administrator was joined in the proceedings. 3 He further submitted that page 101 of the proceedings shows the evidence of SU1 (Christine Fidelis Miswa) who in cross-examination identified herself as an Administrator of the 3rd respondent, her status ought to have been changed to substitute the 3rd respondent. Mr. Tuguta argued that failure to remove the name of the 3rd respondent amounts to irregularity which goes to the root of the matter. He supported his claim by citing the case of Shaban Khalfan Kondo V Tajiri Barua, Civil Appeal No 232 of 2021 on pages 4 to 6. As to the first ground of appeal, Mr. Tuguta submitted that the trial tribunal erred in law and fact for failure to properly and precisely analyze and evaluate the evidence of every witness in order to make a proper finding and invited this court to the case of Stanislaus Rubaga Kasusura & Another V Phares Kabuye 1982 TLR 338 He stated that there is no clear evidence if the 1st and 2nd respondents bought the land in dispute from Chiku Shabani. Moreover, he argued that on page 94 the 2nd respondent in his evidence indicates that they agreed with Chiku Ramadhani to purchase the property but it is not definite as to who sold the plot between Chiku Shabani and Chiku Ramadhani and that contradictions could have been resolved by Chiku Shabani or Ramadhani who were not summoned to testify in court he 4 referred to the case of Hemed Said V Mohamed Mbilu 1984 TLR 113 and there is Japhase Rugangila who denies being called Japhet and therefore the name appearing in Exhibit P1 was wrongly indicated. As to the 2nd ground of appeal, Mr. Tuguta argued that the exhibits were erroneously and irregularly admitted in evidence due to reasons that Exhibit P1 contravened mandatory law requirement that requires the sale agreement to have stamp duty as per Stamp Duty Act Cap 189 RE:2019. Section 47 (1), he made reference to the case of Zakaria Bariabura V Therezia Maria John Mubiru 1995 TLR 16. He then prays this appeal be allowed, trial tribunal proceedings and its decision be nullified and set aside with any other orders this court may deem fit to grant. In reply, Mr. Njelwa began to address the fourth ground of appeal and submitted that application No 38 of 2012 was heard after the appointment of the administrator of the late Mtondi Maige who is the 3rd respondent in this appeal and that notice on his demise was given to trial tribunal by Mr. Kabonde on 19/4/2021 as per page 67 of the trial tribunals’ proceedings and on 16/8/2022 the trial tribunal ordered for appointment of the administrator whereas, on 32/8/2022 as reflected on page 77 Ms. Kundi, learned to advocate informed trial tribunal that the Administrator for the third 5 respondent was appointed and submitted form no IV and it is when hearing started on 12/4/2023 as per Page 84 of the proceedings, he disputed the claim that the matter was determined in the absence of the administrator and argued that page 101 SU1 introduced herself as an administrator of the 3rd respondent and on page 113 the trial tribunal asked questions hence SU1 gave evidence as an administrator of the third respondent. He went on to say that the case of Shabani Kondo is distinguishable from the circumstances of the present matter. Mr. Njelwa asked this court to use overriding principles to amend the names of the third respondents in proceedings and its decision to reflect that of the administrator as held in the case of Security T Ltd V Stephen Gerson Kizinga (Consolidated Appeal No 386/2020 and 50/2021). Mr. Njelwa was of the view that the appellant merely explained the absence of an Administrator of the estate of 3rd respondent, instead of explaining how such omission caused a miscarriage of justice to the appellant, and according to him the proper way is to order substitution of the names in issue and the fourth ground of appeal would have no merit. On the first ground, where the appellant indicated discrepancies in evidence of the 1st and 2nd respondents, it was Mr. Njelwas’ submission that 6 the disputed area had two owners namely Chiku Shaban and Monica Magige, and said that the evidence of SU2 supported the evidence of SM1 and SM2 on the fact that the first area was sold by Chiku Shabani to the first and second respondent as seen in exhibit P1 and P2 hence the sale was not disputed. as per page 113. Mr. Njelwa stated that the dispute arose on the second plot owned by Monica Magige and the evidence of the 1st respondent on page 87 reveals that Mr. Iman Magige and his mother did owe Tsh 55,000/= from the first respondent and secured that piece of land as security and after failure to pay the money that piece of land was then handed over to the first respondent according to exhibit P3 and Monica was then left to stay there until she dies and after her demise the area was sold to the appellant. Mr. Njelwa argued that it is illegal to dispose of the property by one who has no title and invited this court to see the case of Frank Mohamed V Fatuma Abdalah 1992 TLR 205 and stated that a sale between the appellant and Mtondi Maige (deceased) was unlawfully done. As to the contradiction on the names of Chiku Shabani or Chiku Ramdhani, Mr. Njelwa submitted that the one who sold the plot to the 1st and 2nd respondent was Chiku Shabani as per exhibit P1 and 2 of page 94 and there was no query on Chiku Ramdhani. 7 Concerning the issue of why Chiku Shaban and Ramadhani never appeared in court to testify, Mr. Njelwa submitted that page 36 shows that on 14/9/2016 Chiku Shabani recorded as PW3 appeared in court to testify on the sale agreement between her and the 1st, and 2nd respondent but because the matter commenced afresh, she was never found and is the reasons for failure to appear before the tribunal. He went on to state that SU3 on page 121 indicated knowing the whereabouts of Chiku Shabani but also on page 109 the appellant explained the whereabouts of Chiku Shabani and hence it was their duty to bring her in court. He further stated that on who purchased the plot, Exhibit P1 and P2 and it is the 1st respondent who transacted with Chiku Shabani but the money was sent to him by the 2nd respondent, and exhibit P1 reads Japhet but his real name is Japhase and the said contradiction was explained in court. Regarding the second ground, Mr. Njelwa argued that this point is a new fact because exhibit P1 was tendered by the first respondent SM1 and followed all procedures as reflected on page 86 hence the evidence was rightly admitted in court and that the same was never challenged in court and that this ground is devoid of merit and he conclusively prayed this court 8 to dismiss this appeal with cost and that this court to allow to substitute the names of the third respondent with that of the appointed administrator. In rejoinder, Mr.Tuguta submitted that the first and second respondents admitted that information of the death of the third respondent was known before the hearing started but also the trial tribunal order dated 16/8/2022 was for the appointment of the administrator of the third respondent and as submitted by Mr. Anjelo on page 77 the report was sent to the trial tribunal and form No IV was submitted thereat and the respondent blaming the trial tribunal for not effecting changes of parties is not correct as it was their duty to pray for such amendment and the deceased was recorded present and SU1 identified herself as administrator of Mtondi Maige and testified as a witness and not as among of the parties to that case. Moreover, Mr. Tuguta argued on the application of the overriding objective principle that it should not be applied blindly when it comes to a mandatory requirement of law overriding principles should not supersede and that the cited case by Mr. Anjelo is distinguishable. 9 As for the first ground, in his rejoinder, Mr. Tuguta stated that cases should be decided in accordance with the evidence adduced and it was their duty to prove their case by calling Chiku Shabani. Concerning the contradictions of names, Mr. Tuguta submitted that Japhet and Japhase Rugangila are two distinct names and there was no affidavit on the names submitted in court. Lastly, on the issue of stamp duty, Mr. Tuguta submitted that the admissibility of documentary evidence differs from the evidential value of evidence and that stamp duty is a point of law that can be raised at any stage and prays for exhibit P1 to be expunged from the records. I have carefully examined the record and parties’ rival submissions for and against, the issue before this court or determination is whether this appeal is meritable or otherwise. In my determination, I feel compelled to begin with the fourth ground of appeal as to whether application No. 38 of 2012 was heard in the absence of the 3rd respondent and without his Administrator after he was reported dead. The Records indicate on page 67 that on 19/4/2021 notice of death of the 3rd respondent Mtondi Maige was given to the trial tribunal chairperson and on 16/8/2022 the trial tribunal 10 ordered for appointment of the administrator which was complied with as reflected on 31/8/2022 page 77 where form No. IV was submitted to court by advocate Kundi. Thereafter, on 12/4/2023 hearing continued. The proceedings do not show if the said form no IV was received and what initiatives were taken to make the records straight because the records show that the 3rd respondent was still recorded present on all accounts. Mr. Njelwa was of the view that the same was properly done except that the trial tribunal failed to reflect the same in the proceedings and judgment and that such error can be cured. It is settled law that technicalities should not hinder justice in proceedings, see the case of Yakobo Magoiga Gichere V Penina Yusuph, Civil Appeal No. 55 of 2017 where the Court of Appeal cited section 45 above regarding court adherence to substantive justice that if the error do not lead to any miscarriage of justice to affect a party to proceedings, then the court should do away with it as correctly presented by Mr. Njelwa that the trial tribunal was at fault it was to change the name of the deceased Mtondi Maige and replace it with that of Christine Fidelis Miswe who was the appointed administrator to his estate. 11 My examination of the records of the tribunal, as here in above pointed the alleged administrator of the estate of the 3rd respondent testified as a normal witness SU1. Her status in proceedings is hard to explain as the record still reflects the name of the 3rd respondent as a party. Even though it is not disputed that the trial tribunal was notified of his death and it is also apparent that the records do not reflect his administrator as a party to the proceedings and still recorded the 3rd respondent as being present in the court’s proceedings, now the issue is whether that anomaly occasioned miscarriage of justice. Mr. Tuguta strongly argued that the status of SU1 ought to have been changed which means the learned counsel ought to have asked the court to remove the deceased name and join or substitute that of the administrator. It was unfortunate that the case was decided against the deceased in the DLHT and the judgment read the deceased name, worse enough in this appeal his name still appears. Therefore for the second round this appeal is heard without him nor the administrator of the estate. Now the irregularity is fatal to the entire proceedings and unjust and to apply the overriding principle in such manner as Mr. Njelwa submitted it will cause a miscarriage of justice to the adverse party. It should be noted that not every anormaly can be cured 12 by the principle of the overriding objective.This stance was held in the case of Emmanuel Mwakibinga V Kelvin Mwampasi & Another, Land Appeal No. 9 of 2019 (unreported) where the court held that; - “Nonetheless, the principle of the overriding objective was not meant to absolve each and every blunder committed by adjudicating bodies or by parties to courts proceedings” More so in the case of Florian Pantaleo Mtui V.Robert Inyasi Minja Civil Appeal No. 420 of 2021 the Court of Appeal being faced with similar situation held that; ’’…the anomaly is indeed,a fatal one because,after the 1st plaintiff and 1st defendant has passed away,they should not have appeared as parties in the trial court’s proceedings,judgment and the decree…the proceedings were rendered irregular and so were the judgment and the decree…’’ Having pointed out the deficiency, the proceedings of the DLHT dated 19/4/2021 and its subsequent one are nullity and is hereby nullified.This point is capable of disposing of the entire appeal without venturing to the rest grounds of appeal. In the event, I quash the proceedings from 19/4/2021 onwards, set aside the judgment and orders thereto and order retrial before 13 another Chairperson who will cause the highlighted anormaly be rectified.The appeal is then allowed to the extent stated herein above. Costs to follow the event. Dated at MWANZA this 26th Day of July 2024 W. M. CHUMA JUDGE Judgment delivered in court virtually in attendance of Mr. Angelo Nyaoro Learned counsel for the respondent also holds brief of Mr. Tuguta Learned counsel for the appellants this 26th day of July 2024. J. MSAROCHE DEPUTY REGISTRAR 14