regina pancras vs adelaida pancras 2018 tzhc 2674 14 september 2018

IN THE HIGH COURT OF TANZANIA AT BUKOBA MISCELLANEOUS LAND CASE APPEAL NO.75/2016 (Arising from the District Land and Housing Tribunal of Bukoba appeal No. 14/2016 and original land application No.22/2012 from Ijumbi Ward Tribunal) REGINA PANCRAS....... APPELLANT VERSUS ADELAIDA PANCRAS....... RESPONDENT JUDGMENT 12.07. & 14.09. 2018 S. B. Bongole, J. At Ijumbi Ward Tribunal, the respondent filed a land application against the appellant for a piece of land which she claimed to have been given by her father-in-law one Fredinald Majulo (deceased). The Ward tribunal decided in her favour. i The appellant was aggrieved so she challenged that decision by way of objection proceedings to the District Land and Housing Tribunal of Bukoba in land case application No. 14/2016. The same was dismissed on ground of being inapplicable remedy. It is this dismissal order that the appellant seeks to impugn before this court on five grounds coached thus:- 1. That the learned Chairman of the Bukoba District Land and Housing Tribunal erred in law and in fact to struck out (sic) my application No. 14 of 2016 for objection proceeding basing on erroneous reason and without hearing the same interparties. 2. That the learned Chairman of the Bukoba DLHT went wrong in law and in fact to allow execution to take place, without taking into consideration that there were applications No. 14 of 2015 for revision and stay of execution pending with that Tribunal that contains controversy (sic) issues that needs (sic) to be decided after a full hearing of the same. 3. That in allowing the execution to take place vide an order dated 21st July, 2016 the Bukoba DLHT failed to take note that the exparte judgment /decree is null and void for being entered by the Ijumbi ward tribunal without having 2 jurisdiction over the matter. A copy of the said order is attached here with and Marked "B" 4. That the learned Chairman of Bukoba DLHT erred in law and in fact to uphold the exparte judgment of Ijumbi ward Tribunal and allow the execution to take place, without taking into consideration that the respondent had no locus standi to institute the suit before the ward Tribunal without joining or involving the Administrator of the estate of her late father in law. 5. That the learned Chairman misdirected himself to struck out (sic) my application by allowing execution to take place, without taking into account that the exparte judgment that gives rise to the intended execution and attachment of the disputed land is a nullity judgment that cannot be executed by a court of law or Tribunal pursuant to section 46 of the Evidence Act [Cap. 6 R.E2002]. The respondent filed a reply resisting the appeal. His reply is coached thus:- 1. THAT, the contents of paragraph1 is strongly denied as the said application No. 14 of 2016 was heard interparters (refers the order dated is (sic) 6.2015 as annexure "M" 3 2. THAT, the contents of paragraph 2 is strongly denied as the said application No. 14 of 2015 for revision and stay of execution was conducted through written submission and order was given (refers annexure ” R") and the same oral submission was conducted before the trial tribunal of Bukoba. 3. THAT, the contents of paragraph 3 is strongly denied as the Land dispute costing 2 Tshs. Million which is within pecuniary jurisdiction of the Ijumbi ward Tribunal. 4. THAT, the contents of paragraph 4 is strongly contested as the owner of the disputed Shamba is alive, and is the respondent herself. 5. THAT, the contents paragraph 5 is denied otherwise the Appellant has to put strictly (sic) there in. Briefly, the facts giving rise to this appeal is that, the suit land once belonged to one Frednald Majulo who is now no more. The latter was the father-in-law of the respondent. The suit land is said to have been given to the respondent who later on planted trees in it during the life time of the donor. The donee planted trees in the suit land and owned it separately from matrimonial properties or her husband's assets who had to wives .The two wives are the litigants in this appeal. 4 Upon demise of the litigants' husband, the co-wife that is, the appellant was appointed as administratrix of her husband's estates. In the process of administering the said estates, she sought to combine the suit land as one of the estates of the deceased husband thus the respondent resisted the move at Ijumbi Ward Tribunal. As stated before, the respondent was successful in the lower tribunals hence the present appeal before this High Court. At the hearing before this court, the parties were unrepresented. Being laypersons they had nothing to add in expounding their petition of appeal and the reply there to instead, they prayed this court to adopt the respective documents. In determining this appeal I will deal with the grounds of appeal and reply thereto as presented to this court by the parties. Let me commence with the first ground. In this ground the appellant faulted the decision of the District Land and Housing Tribunal of Bukoba in that it erred in law to dismiss her application for objection proceedings on erroneous reasons and without hearing the parties. On her part, the respondent had it that the decision was correct and that the parties were heard interparte. It is apparent on record that the appellant had moved 5 the District Land and Housing Tribunal by way of chamber summons in the nature of objection proceedings. When the same was scheduled for hearing on 23rd August, 2016; she was absent and the same was dismissed on the ground that it was a wrong remedy. My observation on this is that, since it was the appellant who moved the tribunal by way of chamber summons and later on absented herself without assigning any reason when the application came up for hearing, the application was rightly dismissed. Besides all that, the application was scheduled to be argued by way of written submission as per the order dated 13.05.2016 thus the complaint that the parties were unheard has no merit. Further, it was unprocedural for the appellant to file objection proceedings while she was a party to the original suit/ application. In law, objection proceedings is a remedy to a party who was previously not a party to an original case. (See Omoke Oloo V Werema Magira 1983 TLR 144 (HC). On the second ground, the appellant lamented that the learned Chairman erred in law to dismiss her application for stay of execution without taking into account that there was another application for revision. On this, I have paused and asked myself if revision was a proper remedy in this circumstance instead of appeal. The answer is emphatically no. There is a plethora of 6 authorities including but not limited to the case of Hailas Pro- Chemie Industries LTD V. Wella A.G[1996] TLR No.269 that, revision is not alternative to appeal and that this remedy is reserved in exceptional circumstances especially where the doors for appeal are closed. In the matter at hand, the doors for appeal were not closed to the appellant yet she opted to file revision. In the line of the above authority this was wrong. Hence, as the application for revision could not stand, there was no choice for the learned Chairman of the District Tribunal but to dismiss the application for stay of execution as the same could not be granted unless there was a pending legal step. In respect of the third ground, the appellant has raised jurisdiction issue, in that Ijumbi Ward Tribunal had no jurisdiction to determine the matter. I have read the record and noted that the cause of action arose at Ijumbi ward, the suit land is located at Kanombero and estimated at Tshs.2,000,000/- hence within both territorial and pecuniary jurisdiction of Ijumbi Ward Tribunal in terms of section 15 of the Land Courts' Disputes Act [Cap.216 R.E.2002]. Besides, this ground was just raised at this stage without featuring in the records of the tribunals below so it would be unfair to raise it at the appellate stage. To this end this ground fails. This conclusion also takes care of ground five in 7 which the appellant challenges the judgment of the ward tribunal to be nullity. The fourth ground is on the complaint that the respondent had no locus to institute the suit. Going by record, it is not disputed that the respondent was claiming the suit land at Ijumbi Ward Tribunal as her separate property which she had been given by the late Frednand Majulo. The same was not part of the latter's estates by the time of instituting the suit. For this reason it is unattainable at law that the respondent ought to be administratrix in order to have locus standi in the suit land. In the upshot, this appeal is devoid of merit. Consequently, it is 8 Date: 20/9/2018 Coram: Hon. J. M. Minde - DR Appellant: Respondent: -Present B/C: A. Kithama Order: Judgment delivered this 20/9/2018 in the presence of Appellant and Respondent. J. M. Minde DEPUTY REGISTRY 20/9/2018 CERTIFIED TRUE COPY OF THE ORIGINAL ............ .......................................... Deputy Registrar Bukoba 9