thadeo fukuda rweyaba vs marry kaijage 2022 tzhclandd 88 23 february 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) DAR ES SALAAM LAND REVISION CASE NO.57 OF 2020 (From the decision ofDistrict Land and Housing Tribunalfor Coast Region at Kibaha in Land Application No. 08/2016) THADEO FUKUDA RWEYAMBA (The Administrator of the Estate of ramt the Late George Thadei Rweyamba) APPLICANT VERSUS MARRY KAI3AGE RESPONDENT R U L I NG Date ofiast Order:22/11/2021 Date ofRuling: 23/02/2022 T. N. MWENEGOHA,3 This Is an application for revision against the decision of the District Land and Housing Tribunal for Coast Region (Herein after the trial Tribunal) in application No. 08/2016 dated 31'^ October 2017. In which the respondent was declared the owner of Land in dispute. On the date of hearing, David Shadrack Pongolela, learned Advocate appeared for the applicant while Makanja Manono, learned Advocate represented the respondent. The Application is filed under Section 43(l)(a)(b)(2) of the Lands Disputes Courts Act Cap 216, R. E. 2019 (herein after Cap 216) and was supported by the affidavit of the applicant. The applicant was a part to the trial Tribunal case. In his affidavit and submissions, the applicant prayed for this court to revise the decision of the District Land and Housing Tribunal for Coast Region. The applicant stated in paragraph 6 of his affidavit that the proceedings and judgment in Application No. 08 of 2016 is sought to be revised on the following groups: a) The proceedings and the resultant judgment are illegal as the Tribunal was improperly constituted in that the matter was determined in the absence of the assessors; b) The decision was reached in gross error in that it does not finally and conclusively determine the facts in controversy; c) That the Tribunal erred in law and in facts by declaring that the land in dispute belongs to Belena Baraka, who was not a part to the Land application and without any evidence to that effect; d) The decision is problematic and fraught with serious inconsistent and irregularities in that the Tribunal reached to its decision in utter abrogation of the established principle that in Civil cases the standard of proof is at the balance of probabilities and not prima facie proof. Submitting in support of the ground, Mr. Pongolela submitted that according to Section 23(1)(2) of Cap 216 the Tribunal is dully constituted when it presided by the chairman and two assessors, and that these two assessors are required to give their opinion before delivering judgment or ruling. That the involvement of the assessors has to be throughout the hearing of the case. He cited the case of Edina Adam Kibona vs. Absolom Swebe, Civil Appeal No. 286 (unreported) where the court cited with approval the decision in the case of Tubone Mwombeta vs. Mbeya City council, Civil Appeal No. 287/2017 (unreported). Where the court held that; "In view ofthe settled position ofthe iaw, where the triai has to be conducted with the aid of the assessors ...they must actively and effectively participate in the proceedings so as to make their roie of giving their opinion before the judgment is composed... since Regulation 19(2) requires every assessor present at the trial at the conclusion ofthe hearing to give his opinion in writing, such opinion must be availed in the presence ofthe parties so as to enable them to know the ofthe opinion and whether or notsuch opinion has been considered by the chairman in the finai verdict." As reQards to the ground Mr. Pongolela submitted that under paragraph 8 of the judgment it is recorded that; "In the finai results, this application is devoid ofmerits. The same is dismissed. Iproceed to reiterate that, by prima facie proof, the iand in dispute belongs to the iate Beiena unless the contrary intention is proved. Based on the nature ofthis case that parties are relatives, I wiii not award costs." He submitted that the extract of the judgment does not conclusively determine the controversy as between the parties, because according to him the chairman proceeded to grant ownership of the land in dispute to the person who was not the party to the case before him. That Regulation 20(l)(b) of the Land Dispute Courts(The District Land and Housing Tribunal) (herein after the Regulation) mandatorily require a judgment to contain findings on the issues and decision. As for the 3'"'' ground, he submitted that, the chairman at page 7 of the judgment, he recorded that, "However, in view of the testimoniai tendered, the iand in dispute byprima facie prove to beiong to the iate Beiena unless contrary intention is proved." That, Beiena Baraka was neither a party to the case nor was she represented at the hearing therefore, it was improper for the chairperson to hold that she is the rightful owner of the land in dispute. He further submitted that the balance of proof was reduced to prima facie, that this is contrary to the principle of proof in the civil matters where is supposed to be on the balance of probabilities. When replying, Mr. Manono submitted that, the hearing of the matter before the trial Tribunal commenced on 16/11/2016 and as per S.23(l) and (2) of Cap 216 in the presence of Honourable Mbuga who sat with two assessors namely Mr. Mwesingo and Mr. Kihampa. He added that on the same day the applicant together with his witnesses gave their testimonies. However,that on the 06/04/2017 when the defense witness was called for hearing their testimony, it was unfortunate that both assessors were absent due to internal affairs, therefore, the chairperson invoked Section 23(3) of Cap 216 and proceeded alone. He continued to submit that the above cited provision is to the effect that in the absence of one or both assessors the trial chairman is allowed to proceed alone to the conclusion. He continued to submit that the case of Edna Adam Kibona's Case (supra) cited by the applicant is distinguishable to the circumstances of the case at hand. That in the case of Edna Kibona(supra)the assessors were presentfrom the start to the end of the case but they were not conferred with an opportunity to give their opinion before the chairman delivered the judgment. On the 2"^ ground Mr. Manono submitted that, the decision of the trial Tribunal was properly formed and it sufficiently determined the matter as between the parties. He added that the issue of who is the lawful owner of the land in dispute was finally and conclusively determined by the trial Tribunal and was as per the evidence presented before the Tribunal the Tribunal declared that the late Belena Baraka as the lawful owner of the Land in dispute and of whom the respondent acquired title of the said land. As regard as to the 3'^'^ ground, Mr. Manono argued that, the trial Tribunal s judgment was proper. Having heard the evidence tendered by both parties together with their witnesses the trial Tribunal found the respondents evidence was heavier than the evidence adduced by the applicant. He added that there is nothing wrong for the chairperson to use word ""^prima facie proof when giving reasons for her decision, that the word does not mean the burden of proof in the civil matters is reduced. That the burden of proof in civil matters is on balance of probabilities. Mr. Manono stated further that, prima facie proof implies that, the case that is more probable should succeed. That the trial Tribunal weighed up the evidence and decided that the respondent's evidence is most probably true. In his rejoinder the applicant reiterated what he submitted in his submission in chief. Having gone through the submission of both counsels and the records of this Application, I find that I must first address the issue as to whether the Court can invoke her revisionary jurisdiction in this situation. Although parties were silent, I considered the issue whether it was proper to institute an application for Revision instead of filing an Appeal. I have observed the applicant's affidavit particularly under paragraph 6 (a), (b), (C)and (d) where the applicant stated the reasons which moved him to file this application. The contents of the quoted paragraph show that the applicant was aggrieved by the decision of the trial Tribunal. I expected that the applicant would have appealed against that decision. The applicant resorted to an application for Revision. It is a settled law that except under special circumstances a party to proceedings cannot invoke the Revisionary jurisdiction unless it was shown that the appellate process has been blocked by judicial process. See Halais Pro-Chemie Industries Ltd. v Weila A. G [1996]TLR 269 and Chama cha Walimu Tanzania v.the Attorney General E A L R [2008J2 EA 57. Also See Section 79 (1) of the Civil Procedure Code, Cap 33 R. E. 2019, which deals with Revision, it provides as follows; "The High Court may call for the record ofany case which has been decided by any court subordinate to it and in which no appealiies f^ereto/'CEmphasize applied)". However, upon reading the submissions from both counsels for the parties, and the records of this application particularly paragraph 6 (c) of the applicant's affidavit and the impugned judgment of the trial Tribunal,I have discovered an irregularity which attracted my attention to invoke my revisionary power. In the Land Application No. 8 of 2016, the applicant sued the person with no locus standi. At page 7 of the trial Tribunal's judgment the trial chairperson provide that the respondent is a child of the Late Belena Baraka. The records reveals further that the respondent was sued in her own personal capacity as the child of the deceased (Belena) since there was no single proof tendered to show that she is an administratrix of the estate of her late mother. The fact that she was not sued as an administratrix, was the fundamental reason why the trial Tribunal failed to declare the respondent as the lawful owner of the land in dispute; most probably in order to avoid the risk of excluding other heirs from benefiting the estate of their late mother. Declaring the respondent as the lawful owner of the land in dispute, the person who was sued in her own personal capacity, would have the effect of granting her ownership of the property which in really sense belongs to the estate of her beloved mother. The respondent was required to be sued as the administratrix of the estate of the late Belena Baraka, it was not proper for her to be sued in her own personal capacity. In the absence of the clear evidence that the respondent herein was before being sued, appointed as the administratrix of the estate of her late mother Belena Baraka, this renders the entire proceeding and the subsequent judgment a nullity in the eyes of the law. Owing to the above observation and pursuant to section 43(2) of the Cap. 216, I quash the proceedings and set aside the judgment of the trial Tribunal. The matter can be taken back to the Tribunal for trial with proper parties, if any party will be interested to do so. Based on the nature of the application, the parties are relatives, consequently, no orders as to costs is awarded. It is so ordered. Dated at Dar es salaam this 23^^ day of February, 2022 T EGOHA JUDGE s t- ★ rf