silvester ntani vs raymond zenda 2014 tzhc 2375 6 february 2014

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT SONGEA LAND CASE APPEAL NO. 20 OF 2013 (Originating from Songea District Land and Housing Tribunal Land Case Appeal No. 49 of 2010 and Ward Tribunal of Maposeni Land Case No. 27 of 2010) SILVESTER N TAN I........................... APPELLANT VERSUS RAYMOND ZEN D A........................ RESPONDENT JUDGMENT 28/ 11/2013 - 06/ 2/2014 KWARIKO, 3. The appellant sued the respondent herein over Plot No. 132 A Peramiho area in Songea before the Ward Tribunal of Maposeni where in the end he lost the suit. His effort to gain ownership of that land was not a success l before the District land and Housing Tribunal of Songea. He has brought this appeal protesting that he is administrator of the disputed land as it is a family property and this the alleged sale was illegal. Briefly, the evidence which the appellant presented during the trial reveal that the disputed premises belonged to his uncle one Gilead Ribolius Ntani who passed away in 1992. That, in 2010 he was appointed administrator of his estate and when he discovered the respondent was collecting rents from the disputed premises he sued him. On his part the respondent evidenced that the disputed premises is his own property after he bought it from one Brigita Mkaranga in 2006. That, the said Brigita is the mother of the original owner of the disputed premises. The respondent evidenced that after he bought the premises he registered the sale in the Land Office where the ownership of the same was transferred to his name and a Letter of Offer was granted to him. This Offer was tendered and admitted as exhibit at the trial. Both the trial and district tribunals found that the disputed land belonged to the respondent after he brought it from BRIGITA MKARANGA. Before this court the appellant raised two grounds of appeal which essentially complain that the district tribunal erred in law and fact when it failed to declare that the sale of the disputed premises was illegal since the seller had no legal capacity to enter into any sale transaction. And that the district tribunal erred to hold that his appointment as administrator of the deceased estate was doubtful. This appeal was duly heard where the appellant appeared in person and argued the same whereas the respondent was represented by Mr. Ndunguru learned Advocate. Though, for reasons that will be apparent soon this appeal will not be decided on merit. Upon my consideration of the available court record I discovered that the facts of the case show that the disputed premises was sold to the respondent by a third party one BRIGITA MKARANGA. This third party was not sued in order for her to present her side of the story. BRIGITA MKARANGA ought to have been sued together with the respondent herein who is shown to have bought the disputed premises from her. It was important to sue the seller of the disputed premises in order to safeguard the rights of both parties. In this case in the absence of the said BRIGITA being made a party it would be difficult to make any order that will affect her rights. Since for any order to be made against BRIGITA she must be heard after being made a party to the suit. This omission was thus fatal to the proceedings (see also JUMA B. KADALA V. LAURENT MKANDE [1983] T.L.R. 103). For the foregoing, I find that the proceedings before the trial tribunal was illegal and thus declared null and void and are hereby quashed. Likewise, the appeal proceedings before the district tribunal which originated in the null proceedings are declared null and void and are also quashed. This appeal thus has no legs to stand and is thus dismissed with costs to the respondent. It is ordered accordingly. JUDGE 06/02/2014 DELIVERED AT SONGEA 06/02/2014 Appellant: Present Respondent: Absent/Mr. Ndunguru Advocate C/C: Miss Hobokela. M.A.KWAR] JUDGE 06/02/2014 Court: Right of Appeal Fully Explained. JUDGE 06/02/2014