Judgment Tindichebwa

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MWANZA

AT MWANZA LAND APPEAL NO. 5708 OF 2024 (Arising from the decision of the land and housing tribunal for Mwanza at Mwanza in Land Application No. 21 of 2018) 1. TINDICHEBWA NAMULILO 2. DAVID SYLVESTER ……………………………………… APPELLANTS

VERSUS 1. TEKE MASOBE 2. FIKIRI CHAMBA ………………………………………… RESPONDENTS 3. WILLIAM MASHAKA 4. MUTARINGI MASIKI

JUDGEMENT 12th July &23rd August 2024 CHUMA, J. The appellant being aggrieved by the decision of the District Land and Housing Tribunal for Nansio-Ukerewe (herein the DLHT) in Application No. 21 of 2018 decided to lodge this appeal. Briefly at the DLHT the applicants (herein respondents) sued the respondents (herein appellants) seeking ownership declaration of a disputed land within Itira Village at Nansio 1 Ukerewe. The respondents claimed to have obtained the disputed land from the village allocation program in 1976 and 1993 while the appellant alleged that the disputed land belonged to his late father Namulilo Chibuga and respondents were trespassers after he wanted to evict them it is when they sued at the DLHT. The DLHT declared the respondents to be lawful owners of the disputed land. Following those findings, the appellants preferred this appeal advancing the following grounds; - i. That trial tribunal erred in law and in facts for entertaining the matter against the respondents who had no locus standi to be sued ii. That the trial tribunal erred in law and in facts for entertaining the matter without a proper description of the suit land iii. That the trial tribunal erred in law and facts for delivering its judgment while omitting other parties who were featured in previous proceedings iv. That the tribunal erred in law and in facts for failure to properly evaluate the

evidence on record hence arriving at a wrong decision v. As a whole the decision of the tribunal was against the law applicable 2 At the hearing, the appellants were represented by Mr. Ally Zaid learned advocate while the respondents engaged Ms. Diana Daniel and Fidelis Cassian Mtewele for drafting purposes only. In his submission, Mr. Zaidi stated that locus standi means the right to bring an action or to be heard in a given forum and the said right applies not only to those who bring an action but also those who are defending the same. He referred to page 3 of the judgment paragraphs 2,3 and 4 that the suit land belonged to Namulilo Chibuga the father of the 1st appellant in this appeal who died in 1976 and for that case, it was improper for the tribunal to entertain the matter against the respondents who are now appellants who were not administrators to the estate of the late Namulilo Chibuga which is against the law as it is required every interest of deceased person to be protected by legally appointed administrator of his estate as per Section 71 of the Probate and Administration of Estates Act. He supported this position by citing the case of Malietha Gabo Vs. Adamu Mtengu, Civil Appeal No. 485 of 2022 (unreported). He further argued that the disputed land has not been described and only it is said to be land at Itira Village in Muriti Ward within Ukerewe

District 3 which is not sufficient because they had to state the size of the disputed land, surrounding neighbors, specification of boundaries and other related features in compliance to Regulation 3(2) of the Land Disputes Courts(the District Land and Housing Tribunal) but the judgment and decree of Application No.21 of 2018 declares the applicants to be owners of the suits land which appears to be more than one piece of land meanwhile in the application it was only one unspecified piece of land which leads to confusion. Also, on the 3rd ground of appeal, Mr. Zaid submitted that application no. 21 of 2018 filed on 20th February 2018 had 7 applicants (Martin Magogo, Myaga Mugusi, Kabara Makubura, Teke Masobe, Fikiri Chamba, William Mashaka and Mutaringi) versus Alphonse Namulilo, Mutundu Namulilo, Tindichebwa Namulilo and David Sylvester. On the 20th July 2022, Hon. Dorothy the chairperson ordered the 1st and 2nd applicants in application no. 21 of 2018 to be removed from the application hence stood with 5 applicants and 3 respondents and the judgment entered on 07/02/2024 had 4 applicants and 2 respondents with no clear reason thereto. Mr. Zaid considers this to be an irregularity citing the case of Salim Amour Diwani Vs. The Vice Chancellor Nelson Mandela African Institute of Science and 4 Technology & The Attorney General, Civil Application No. 116/01 of 2021 that parties

should appear the same as it was in previous proceedings. Lastly, Mr. Zaid Argued that the whole of the decision of the DLHT was irregular and against the law applicable citing what he stated in the 1st to 3rd grounds of appeal, and prayed this court to allow the appeal, quash and set aside the judgment of the trial Tribunal together with its subsequent orders thereto. In response, the respondents argued against the 1st ground of appeal contending that the tribunal correctly decided on the appellants being the people who had trespassed on their land hindering them from using it and the issue of locus standi should not be viewed in a narrow meaning because it has been extended to include sufficient interest as it was elaborated in the case of I.R.C Vs. National Federation of Self and Small Business Ltd, (1981) 2 ALL E.R 93. At the DLHT respondents were required to prove ownership per sections 110 and 115 of the Tanzania Evidence Act, (herein TEA) Cap 6 R.E. 2022 and the weakness of the appellant's side as to whether they had locus standi was immaterial because the 1st appellant restricted the 5 respondents maliciously from using their land hence causing a disturbance and the alternative way was to seek relief from the tribunal. As to the 2nd ground of appeal, respondents submitted that the suit property is surveyed and does not fall in the realm of Order VII Rule 3 of the Civil

Procedure Code [Cap 33 R.E. 2019]. They submitted that the requirement to describe the property is to enable the trial court to identify or specify it from other pieces of land around it, effectively resolve the controversy between the parties, and make a definite order for execution as elaborated in the case of Daniel Kanuda Vs. Masaka Ibeho & 4 Others, Land appeal No. 26 of 2015 (unreported) but for the surveyed land its sufficient to mention the location of the suit property and its size and that paragraph 3 properly describes the suit property is at Itira Village in Muriti ward Ukerewe District and the same kind of description is said to have been enough and proper. He referred this court to the case of Mbwana M. Chuma & 2 Others Vs. Dar es Salaam Parkland Holding Limited, Land appeal no. 34 of 2022 (unreported). Regarding the 3rd ground of appeal, the respondents argued that the omitted parties were removed for the interests of justice as the 3rd respondent 6 Kabara Makubura died in 2021 while the suit was still pending and Order XXII Rule 4(1) (2) (3) of Civil Procedure Code Cap 33 R.E. 2019(herein the Code) gives power to the court to proceed with the proceedings when there is no any application made within a given time to represent the deceased who died pending any proceeding. They also argued that the provision of section 95 of the Code gives inherent powers to the

court to make such orders as may be necessary for the ends of justice or to prevent abuse of the court process. Furthermore, the provision of section 97 of the same code provides that: “The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made to determine the real question or issue raised by or depending on such proceeding”. Therefore, the court was correct to remove those parties in the application, and if the Tribunal in the absence of the application to represent the 3rd applicant and 2nd respondent would not decide to omit these parties it could be difficult to reach the final determination of the suit, and therefore justice could be denied. They further stated that the court also has the power to add or remove a part to the proceedings where it thinks just as per Order I Rule 10(2) of the Code. 7 Moreover, on the 4th ground of appeal, the respondents submitted that the DLHT had no irregularity in the determination of application No. 21 of 2018 and called this court to dismiss the appeal with costs. In his rejoinder, Mr. Zaid submitted against the respondents’ arguments regarding the 1st point of appeal that the issue of locus standi cannot be looked at from a different angle as so submitted by the respondents by citing a 1981 case of I.R.C

(supra) disregarding a 2022 case of Malietha Gabo (supra) cited earlier. He stated that the Suit land belonged to one Mr. Namulilo who died in 1976 and the appellants to be sued personally instead of suing an administrator of the deceased estate was improper. He also pointed out that the counsel for the respondents touched on the issue of evaluation of evidence wrongly while on the 24th May 2024 leave was sought to abandon the same. On the second ground of appeal, Mr. Zaid pointed out that about the description of land, the respondents counsel used Order VII rule 3 of The Code which has no connection to this matter and the cited case of Mbwana M. Chuma (supra) seems similar but has distinguishable circumstances as the suit in question was said to be a piece of land at Kisinza Street, Kibada Dar 8 es salaam which is surrounded by graves which suffices description contrary to the respondent’s counsel’s submission in Application No. 21 of 2018 which effects were seen in execution. Concerning the 3rd ground Mr. Zaid submitted that the court does not have the power to remove or add parties in proceedings without assigning reasons and the respondent counsel admits to having been 7 applicants and 4 respondents at the beginning citing the demise of the 3rd respondent, yet judgment had 2 respondents instead of 3 if at all the 3rd was dead of which is against the cited case above of

Salim Amour Diwani (supra) and that the said irregularities are enough to nullify the whole proceedings. Having gone through both parties’ submissions for and against this appeal, the issue for determination is whether this appeal is meritable or otherwise. I will commence deliberating the 1st ground of appeal whether the respondents in the tribunal had locus standi for that matter. Counsel for the appellants argued that the Judgment of the tribunal court on pages 3 and 4 stated that the suit land belonged to Mr. Namulilo Chibuga the father of the 1st appellant who died in 1976 and for that reason, it was wrong for the tribunal to proceed against respondents who were not administrators of the 9 estate. On the contrary counsel for the respondent’s argument was that the appellants were the ones who caused a disturbance by obstructing them from using the land which they got from the village allocation program and they only had a duty to prove ownership of the land as per section 110 and 115 of TEA. It is cardinal law that when it comes to a deceased person's estate, one cannot institute a suit without suing the administrator of the estate. However, my close look at the trial court’s proceedings application No. 21 of 2018 paragraph VI provides that the suit is against them as they were allocated the disputed land by the village Executive officer of Itira village. The said paragraph

states as follows: - (vi) “To their surprise on August 2017, the applicants were informed by the village Executive Officer of Itira Village that they will be evicted from their properties as Alphonce Namulilo, Mutundu Namulilo, Tindichebwa Namulilo, and David Sylvester now respondents were allocated to those pieces of land vide Civil case no. 29 of 2000-Nansio Primary Court” This paragraph proves that the land was allocated to the appellants personally. I will refer to the case of Omari Yusuph (legal representative 10 of the late Yusuph Haji Vs. Albert Munuo, Civil Appeal No 12 of 2018 the CA had this to say; - “Locus standi is all about the directness of a litigant's interest in proceedings which warrants his or her title to prosecute the claim asserted…” The application in itself provides that appellants were allocated with that disputed land and not the late Namulilo Chibuga. Therefore, by the above elaboration, I find no merit in the 1st ground of appeal raised by the appellant’s counsel. As to the 2nd ground of appeal that the disputed land lacks proper description, Appellant's counsel submitted that the land has been said to be at Itira Village in Muriti Ward within Ukerewe District which is not sufficient. On the other side, Respondents stated that the way it has been described is sufficient as it was held in the case of Daniel Kanuda (supra) and because is unsurveyed

land paragraph 3 suffices. From the records, paragraph 3 reads; - “The suit land is situated at Itira Village, in Muriti Ward-Ukerewe District” 11 The Respondents argued against the application of Order VII Rule 3 of the Civil Procedure code, Cap 33 to the present matter stating that the rule concerns surveyed land while in this matter such land is not surveyed. The above Order states as follows; - “Where the subject matter to the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it and in case such property can be identified by a title number under the Land Registration Act, the plaint shall specify such title number”. I find the above provision applies to both surveyed and unsurvey land. The term in case such property can be identified by a title, the plaint shall specify such title number means where the disputed property has title then it can be described by title number. This does not mean the order is not applicable in surveyed land. The submission by the respondent in this aspect is then out of context. From the trial records, according to paragraph 3 of the application and as stated earlier, the disputed land is said to be 40 acres, but has been generally defined and there is nowhere that such acres are defined or marked to easily make it understood and that is why one of the reasons stated by the appellant's

counsel is that it was hard for the trial tribunal to 12 execute the judgment. In the case of Joel Kondela Maduhu Vs. Siya Ndeja, Land Appeal No. 3 of 2021 (unreported); - The court had this to say; - “It is a settled principle of law that, any claim of land should contain a proper description of the suit land for definite and complete execution order” See also the decision of the Court of Appeal in the case of Martin Fredrick Rajabu Vs. Ilemela Municipal Council & Synergy Tanzania Company Limited, Civil Appeal No.197/2019. Regarding the third ground of appeal, I subscribe to the respondent's submission on one hand that the trial tribunal had the power to remove parties in line with the cited provisions of law. It also gives power to the court to proceed with the proceedings when there is no application made within a given time to represent the deceased who died pending any proceeding. However, before acting so reasons have to be assigned as rightly submitted by Mr. Zaidi advocate for the appellant. The record does not reflect the time according to the parties or any incentives for the appointment of an administrator before invoking the provision of Order XXII Rule 4(1)(2) and (3) of CPC. But also, the removed parties in application No 21 of 2018 in its decision dated 7.2.2018 were done without assigning reasons. For clarity and 13 neatness of proceedings, the reasons ought to

have been given failure of which will lead to challenges in the execution stage. Given the circumstances of the case and the foregoing analysis, I think, this Court is justified to invoke its revisional powers under section 43 (1) of the Land Dispute Land Disputes Courts Act, (Cap. 216 RE 2019) and revise all the trial tribunal's proceedings. Both the decision and proceedings of the trial tribunals are quashed and set aside orders issued there. This takes the parties to the original position they were in before the filing of the application subject to this appeal before the District Land and Housing Tribunal. Any interested party may, if so wishes, re-institute a fresh matter in line with the law. The appeal is then allowed to the extent stated in this judgment. Owing to the fact that no party is to blame for the irregularities pointed out. I order each party to bear its own cost. It is so ordered. DATED at MWANZA this 23rd day of August 2024. W.M. CHUMA

JUDGE 14 Judgment delivered virtually in attendance of Mr. Ally Zaidi advocate for appellant and the respondents Mr. Teke Masobe, Fikiri Chamba and Mutaringi Masiki this 23rd day of August 2024. W.M. CHUMA

JUDGE 15