20181010 TZHC Mwanza2

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY ATMWANZA MISCELLANEOUS LAND APPEAL NO. 91 OF 2017 (From the decision of the District Land and Housing Tribunal of Chato District at Chato in Land Appeal No. 08 of 2017 and original Ward Tribunal of Nyamirembe Ward in Application No. 22 of 2017) THE FAMILV OF SCYPILIAN LUKAZAWA .................... APPELLANT VERSUS THE COTTON BOARD ............................................ RESPONDENT JUDGMENT 15/08 & 10/10/2018 RUMANYIKA, J.: It is against the 09/08/2017 judgment and decree of the District Land and Housing Tribunal for Chato at Chato (the DLHT). Having upheld decision of even date of Nyamirembe Ward Tribunal. Whereby the Cotton Board of Tanzania I suppose, were declared lawful owners of the disputed land. The 5 grounds of appeal only revolve around three (3) points namely:- (1) that the appellant was denied right to be heard. (2) that the DLHT erred in law and fact having given the judgment instantly. 1 ~ t (3) that the DLHT mistook the disputed land. t . .'. Therefore misapprehended the evidence. Whereas Rwehumbiza Scypilian a member of household appeared for the appellants, Ms. Elizabeth Msuya learned counsel appeared for the Cotton Board (the respondents). Very briefly, the appellant submitted that the DLHT improperly evaluated the evidence. That his father died in 2008 but none of them was appointed administrator of the estate Ms. Elizabeth Msuya on reply submitted that the records clearly showed that the appellants were infact fairly heard. That the appellant's land only boarded the disputed land. That the DLHT therefore properly evaluated the evidence. That is it. Questioned by court for clarification, Ms. Elizabeth Msuya submitted that they built the godown in 1975 (per sketch map). But the case was instituted on 28/02/2017. Save for the missing documentary evidence. It is in a nutshell evident that whereas Rwehumbiza claimed it as a family land, the respondents owned it with effect from 1975 and developed it for so long undisturbed. The central issue, but before embarking on the merit part of the appeal, is whether the appellant had a locus standi. The answer is no. It is very unfortunate however that, from the very beginning the case was instituted by omnibus party i.e. The family of Scypilian Lukazawa. In which case therefore, .whatever the results, execution of the decree/orders was next to impossible. 2 The father (whose estate is at stake) may have died yes! But very unfortunately even on lapse of eight good years no probate proceedings had been instituted (the said Rwehumbiza Scypilian admitted this material fact). Perhaps during his life time the deceased father had not interest. Who knows? There is no wonder why the case was instituted say eight (8) years upon demise death thereof. Until the said Rwehumbiza sought, and was duly granted the letters of administration. The purported appellant in any ways had no locus standi. He could not have sued in his capacity or even been sued. It is very unfortunate that the DLHT did not at once observe this legal requirement. Suffices the point to dispose of the appeal. Proceedings and concurrent decisions of the two tribunals below are hereby nullified and quashed respectively. Parties, whoever further interested may now wish to institute the case but in accordance with the law. Each party will bear their costs. Ordered accordingly. Right of appeal explained. NYIKA JUDGE 29/09/2018 Delivered under my hand and seal of the court in chambers this 10th day of October, 2018 in the presence of the appellants in person and Ms. Elizabeth Msuya for the respondent. -✓• ~o> , - ' UlT Op ~ M.A. MOYO '·. 'I ' ~ DEPUTY REGISTRAR ( 10/10/2018 3