Roman 31584 scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 31584 OF 2024 (From the judgment of tKibaha District Land and Housing Tribunal by Hon. S. Mbuga, Chairperson in Land Application No. 181/2017) ROMAN OTHMAN............................................................... 1st APPELLANT SABINA ROMAN................................................................. 2nd APPELANT VERSUS MARIA THOMAS ULIZA (Administratix of the estate of deceased Thomas Uliza Msengwa)................... ..RESPONDENT JUDGMENT 10/03/2025& 14/03/2025 k. MSAFIRI, J. The appellants, having been aggrieved by the decision of the District Land and Housing Tribunal for Kibaha (trial Tribunal) in Land Application No. 181 of 2017, has lodged the instant appeal advancing a total of seven (7) grounds of appeal which I shall not reproduce herein. The appeal was heard by way of written submissions and the submission in chief by the appellants was drawn and filed by Mr Frederick D. Mwakinga, learned Advocate while the reply submissions by the respondent was drawn and filed by Mr Wilson K Magoti, learned Advocate. i I have gone through the submissions by the rival parties and well considered the contents, along with the cited authorities and I will not reproduce each and everything which was submitted. Before determination of the grounds of appeal, I will briefly narrate the background of this appeal. Initially it was the respondent Maria Thomas Uliza (the administrator of the estate of the late Thomas Uliza Msengwa) who instituted the case against the appellants. The respondent claimed that the appellants has trespassed into the land owned by her late father, Thomas Uliza. That the disputed land is located at Koo, Mikoroshini, Chalinze, Bagamoyo in Coast Region. During the trial, each party claimed to own the disputed land and after hearing the evidence of both sides, the trial Chairperson found that the disputed land belonged to the respondent and that the appellants were trespassers, and order that they should vacate the disputed land immediately. The appellants were aggrieved by the decision and judgment of the Tribunal and lodged the instant appeal advancing seven grounds. I shall start by determining the first ground of appeal which state that; the trial Tribunal erred in law and fact for entertaining a dispute in which the appellants had no capacity to be sued. I L- 2 Submitting in support of this ground, Mr Mwakinga stated that during the hearing and before the matter at the trial Tribunal was disposed to its finality, the 1st appellant who is also known as Roman Athuman Kingwala died on 08th June, 2022. That although proof of death and of the 1st appellant and letters of the administration of the deceased estate were filed in the Tribunal, the pleadings were not amended to accommodate the changes. That the judgment of the trial Tribunal was eventually delivered on 05th September 2024 showing Roman Othman and Sabina Roman as the 1st and 2nd respondents. Mr Mwakinga was of the view that, failure to make changes to the pleadings rendered the appellants to have no locus standi on the matter. He said that the 1st appellant is a deceased with no representation. That the 2nd respondent was sued in her own capacity while she was appointed the administratrix of the estate of the deceased, the 1st respondent. He maintained that both respondents had no locus standi to be sued either before the trial Tribunal or in this court. To bolster his point, the counsel cited the case of The Registered Trusteed of SOS Children's Village Tanzania vs. Igenge Charles and others, Civil Application No. 426/08 of 2018 in which the Court of Appeal nullified the judgment and proceedings of the subordinate court for lack of locus standi. ML- 3 He prayed that the proceedings and judgment of the trial Tribunal to be declared a nullity. In response, Mr Magoti submitted in contention that the appellants had the capacity to be sued in terms of their ages, sound mind and free from encumbrances. That the 2nd respondent was a legal representative/ administratrix of the Roman Othman upon applying to the trial Chairperson who granted the same to be joined. Mr Magoti argued further that the law requires the legal representative or the administrator of the estate of the deceased to be joined to the trial, the act which the trial Tribunal did by joining the 2nd respondent to represent the 1st respondent (1st appellant) and amendment of the proceedings is not required. He added that the 2nd respondent was a co­ respondent to the suit before the trial Tribunal hence she has a locus standi to be sued. I had opportunity to go through the proceedings at the trial Tribunal. The records show that at the beginning of the trial, the 2nd respondent informed the Tribunal that the 1st respondent who is her father was an old man and ill and therefore could not attend the court proceedings. The 2nd respondent prayed to represent the 1st appellant by power of attorney. This is shown on the proceedings dated 06th June 2018. The subsequent^j^ 4 proceedings show that the hearing of the suit was adjourned on several times to enable the 2nd respondent to file the power of attorney. On 10th June 2019, the records shows that the 2nd respondent informed the court that she has already been authorized by the 1st respondent to represent him in the suit, but she has not yet filed the authorization in court. The Tribunal again adjourned the matter to give chance to the 2nd respondent to file the authorization in court. Surprisingly, there is no record to show whether the 2nd respondent filed the authorization in court and whether the Tribunal received it in court and made it part of the records. The proceedings are silent on that although in the documents which are in the records, the power of attorney of the 1st respondent authorizing the 2nd respondent to act on his behalf, is included. On 16th September 2020, the hearing commenced with the applicant (PW1) and her witness (PW2) adducing their evidence on diverse dates. On 13th December 2022, the coram shows that the 1st respondent is deceased. On the very same date, the hearing of the defence started and the 2nd respondent adduced her evidence as SU1 and closed her case. On 16th December 2022, it seems that there were prayers although the proceedings are not clear. It only shows that the Tribunal ordered the respondents to bring more witness and to be reheard. On 17th December- 5 2022, the records shows that the 2nd respondent informed the Tribunal about the 1st respondent's death. She said that the 1st respondent passed away since 08th June 2022. The Tribunal ordered that the hearing could not proceed until the administrator of the estate of the 1st respondent has been appointed. The matter was adjourned to 24th January 2023 for purpose of checking whether the administrator has been appointed. On 24th January 2023, the 2nd respondent informed the court that she has been appointed the administratrix of the estate of the deceased, the 1st respondent. The Tribunal ordered the hearing to proceed on 26th January 2023. On 15th March 2023, the hearing of the defence case proceeded with the witness of the respondents one Simon Ramadhani Dunia testifying as SU2. There was no application to amend the pleadings to reflect the fact that the 1st respondent was now a deceased and the 2nd respondent has stepped into his shoes as the administratrix. Furthermore, the proceedings do not show whether the 2nd respondent produced the letters of the administration and they were admitted in court. The letters are seen only in the documents in the records but the procedure on how they were admitted in court is not revealed. JVI n. 6 This court has observed that there was no any application from the parties to amend the pleadings to reflect the changes of the parties particularly the respondents. Neither did the Tribunal ordered the changes suo motu. The Tribunal was aware that the 1st respondent is deceased, but went on to hear and determine the matter as if the 1st respondent was still alive. This is omission is also seen in the impugned judgment. In the whole judgment, the Trial Chairperson did not show these important facts; i.e the fact that at first, the 1st respondent was being legally represented by the 2nd respondent by the power of attorney, and second, that the 1st respondent passed away during the trial and the 2nd respondent was appointed the administratrix of his estate. In the impugned judgment at page 5, the trial Chairperson only stated that there was no evidence of 1st respondent and that the 2nd respondent kept telling the Tribunal that the 1st respondent was sick and that the Tribunal ordered the 2nd respondent to get the authority from the 1st respondent to proceed with the case but she did not do so. To put this clear, I will reproduce that part of the trial Chairperson statement at page 5 of the typed judgment as herein below:- M I j 0. 7 "Hapakuwa na ushahidi wa mdaiwa na.l pamoja na kuwa kita mara mdaiwa na.2 aiieieza mdaiwa na.l ni baba yake na kuwa anaumwa na kwamba ni mzee, Baraza HHwaeiekeza apate kibaii cha kuendeiea na shauri, hata hivyo hiio haiikufanyika." Here, it is clearly noted that the trial Chairperson, for unknown reasons, chose to ignore the fact that first the 2nd respondent filed in the Tribunal, the power of attorney from the 1st respondent authorizing her to legally represent the 2nd respondent but the Tribunal did not admit that power of attorney during the proceedings, second, the trial Chairperson ignored the fact that the 1st respondent died during the trial and the 2nd respondent was appointed his administratrix but the proceedings and the judgment remained with the status as if the 1st respondent was still alive. The property in dispute was subject of contest of ownership between the then applicant suing as an administratrix of the estate of the late Thomas Uliza Msengwa and the 1st respondent. The applicant claimed that the suit property belongs to the late Thomas Uliza while the respondents claimed that the suit property belong to the 1st respondent. Ifl L 8 Thus, immediately after the Tribunal receiving the news of the death of the 1st respondent and recorded him as deceased on 13th December 2022 as per the coram of that day, then both the respondents ceased to have locus standi on the matter. The 1st respondent had no locus standi because he was of course, a deceased and the 2nd respondent ceased to have locus to represent the 1st deceased as she was in an individual capacity not yet as an administratrix. The proceedings however remained the same without any changes reflecting the changed status of the respondents. The records still show the 1st respondent while he is deceased, and the records does not show the changed status of the 2nd respondent as an administratrix. The 2nd respondent was supposed to change as now she was an administratrix and also, she could be added to the suit as an individual in her own capacity if she had any interest in the suit property. Since these necessary amendments were not done during the proceedings and were neither reflected in the impugned judgment, then it is the considered view of this court that the proceedings from the date the 2nd respondent was pronounced to be deceased, were 9 vitiated hence nullity. Likewise, the judgment of the trial Tribunal has no legs to stand upon for being a product of a nullity. Since the first ground suffice to dispose of this appeal, I shall not discuss on the rest of the grounds. For the above reasons, I hereby quash and set aside the proceedings of the trial Tribunal in Land Application No. 181 of 2017 from 13th December 2022 and the subsequent judgment and orders and order retrial. I remit the case file and the records to the trial Tribunal that is the District Land and Housing Tribunal of Kibaha District at Kibaha for the expedited retrial. The previous proceedings before 13th December 2022 remains intact. Due to the fact that gross errors are not linked to the parties but rather the Tribunal, then I issue no order as to the costs. Appeal is allowed to such extent. io