Chacha Juma Magoko vs Mwita Juma Magoko & Another (Civil Appeal No. 32 of 2022) [2024] TZCA 781 (21 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: MKUYE. 3.A.. KITUSI. J.A.. And ISSA. J.A.^ CIVIL APPEAL NO. 32 OF 2022 CHACHA JUMA MAGOKO (As Administrator of the Estate of the Late GABRIEL MATIKO ................................... APPELANT VERSUS MWITAJUMA MAGOKO ................................................... 1 st RESPONDENT SUZAN MATIKO MAGOKO............................................... 2 nd RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Mgeyekwa, J.) dated the 7th day of November, 2019 in Misc. Land Application No. 141 of 2019 JUDGMENT OF THE COURT 15th & 21st August, 2024 ISSA. J.A.: The dispute between the parties is one of many stories of a family torn apart by greed and mistrust. The following brief background facts will serve the purpose of appreciating the essence of the present appeal. The 2n d respondent is the biological mother of the appellant and 1s t respondent. She was married to late Gabriel Matiko (the deceased) when the appellant and 1s t respondent were 3 and 4 years old. The deceased raised them as his own children and when he passed away in 2009, through a will, left them a house and a plot of land. The prospect

of getting money from ACACIA Gold Mine in exchange for the sale of the land caused a conundrum in the family. The 2n d respondent filed Application No. 10 of 2017 (land application) at the District Land and Housing Tribunal (the DLHT) for Tarime claiming that her two sons have invaded her land situated at Nyangoto-Matongo-Nyamongo in Tarime District in Mara Region and they were developing it without her consent. Further, that her sons were on the verge of having the land valuated so that it could be sold to ACACIA Gold Mine. The decision of the DLHT was delivered on 25th May, 2017 which declared the 2n d respondent a rightful owner of the disputed land, and that she should be paid compensation over her land, two graves, sisal and one house by ACACIA Gold Mine. The appellant was given a right over five houses he built on the 2n d respondent's land. Aggrieved with that decision, the appellant and the 1 s t respondent lodged their appeal to the High Court of Tanzania at Mwanza (1s t appellate court) vide Land Appeal No. 50 of 2017 (Appeal No. 50). Astonishingly, the appellant filed the appeal as administrator of the estate of Gabriel Matiko, the late husband of the 2n d respondent. The 1s t appellate court (Siyani, J. as he then was) found the appeal incompetent as the memorandum of appeal was not accompanied by a decree the

appellant was appealing against. The appeal was struck out on 28t h February, 2019. The 2n d respondent started execution proceedings at the DLHT vide Misc. Application No. 341 of 2019. The appellant was unhappy, he lodged Misc. Civil Application No. 35 of 2019 (Application No. 35) asking the High Court (Mgeyekwa, J. as she then was) to stay the execution and also to grant extension of time to lodge an appeal out of time. The application was dismissed on 12th April, 2019 for want of prosecution. Undaunted, the appellant lodged Misc. Land Application No. 141 of 2019 (Application No. 141) at the High Court (Mgeyekwa, J.) in which he asked the court to stay the execution proceedings at the DLHT and grant extension of time for the appellant to lodge an application to set aside the dismissal order in Application No. 35. Before this application was heard by the High Court, the DLHT finalised the execution proceedings on 5th July, 2019 and the appellant and 1 s t respondent were permanently restrained from entering the 2n d respondent's land. Turning to Application No. 141, the court was of the view that after dismissing the previous application for want of prosecution, the court had become functus officio and could not restore the dismissed application. Hence, it dismissed it on 7th November, 2019. It is

noteworthy that, in all these applications, the appellant filed them as administrator of estate of the late Gabriel Matiko @ Juma. Undeterred, the appellant has filed the instant appeal challenging the dismissal order in Application No. 141. The appeal is predicated on one ground which we will not reproduce for the reason that will be apparent shortly. The 2n d respondent, in her response to the appeal, filed a notice of preliminary objection in which she raised two preliminary objections which will not be reproduced either for the reason that will be apparent shortly. At the hearing of the appeal, the appellant was represented by Mr. Baraka Makowe, learned advocate whereas the respondents had the services of Mr. Hussein Kitta Mlinga, also learned advocate who out-rightly abandoned the points of objection against the instant appeal. Upon taking the floor, Mr. Makowe submitted that the institution of the land application and all proceedings that followed including the instant appeal were marred with irregularities that makes everything a nullity. He implored the Court to address those irregularities, instead of focusing on the appeal. In the interest of justice, we allowed Mr. Makowe to address us on those irregularities.

Mr. Makowe started with the land application which was filed by the 2n d respondent and he submitted that the following irregularities were observed: One, the pleadings were incomplete as the appellant and 1s t respondent failed to file Written Statement of Defence (WSD). He wondered how the DLHT managed to frame issues without the presence of WSD. Two, the DLHT had no jurisdiction to determine the issues framed on page 8 of the record of appeal, particularly, the issues of will and paternity. Three, the land in dispute was not sufficiently described in the land application. There is no address of the location of the land in dispute. Therefore, it will be hard to enforce a decree, he argued. Four, the application was silent about when the cause of action arose. Five, the proceedings of the land application do not show if the assessors gave their opinion, and if they did give their opinions they were not read to the parties. Mr. Makowe bolstered the point by citing the Court's decision in Edina Adam Kibona v. Absolom Swebe (Sheli) (Civil Appeal No. 286 of 2017)[2018]TZCA 310 (12 December 2018, TANZLII) where the Court said if the opinions of assessors were not read the judgement is a nullity. Sixth, he submitted that land application was filed in 2017 without including the administrator of estate of late Gabriel Juma Magoko, one Vincent

Chacha Juma who was appointed on 28th September, 2016. He therefore submitted that the judgment and the whole proceedings before the DLHT were a nullity. Mr. Makowe added that the appeal that followed, Appeal No. 50 was also marred with irregularity. It was filed by the appellant as the administrator of estate of late Gabriel Matiko @ Juma who had no locus standi as he was not the administrator of estate. The administrator of estate was Vincent Chacha Juma, he said. Therefore, the ruling and proceedings were also a nullity. In fact, he said, all that followed up to the instant appeal were a nullity. He prayed to the Court to invoke section 4(2) of the Appellate Jurisdiction Act, Cap. 141 (the AJA) and quash the proceedings of the DLHT and set aside its judgment. The Court should also quash all proceedings from Appeal No. 50. Mr. Mlinga, on his part, joined hands with Mr. Makowe on everything. Perusing the record of appeal, we agree with Mr. Makowe that the proceedings were marred with irregularities. Starting with the land application, it suffered from various ailments. Firstly, at paragraph 3 of the application which talks about location and address of the suit premises, the 2n d respondent did not provide sufficient description of the land in dispute. She wrote: situated at Nyangoto-Matongo-

Nyamongo in Tarime District The description is too general and will be hard to identify the land in dispute. Secondly, on paragraph 6 of the application which talks about the cause of action and brief statement of facts constituting the claim, the 2n d respondent failed to mention when the cause of caution arose. Therefore, it cannot be determined whether the suit was filed within time or was time-barred. With these anomalies the application ought to have been rejected by the DLHT. Turning to the proceedings before the DLHT, Mr. Makowe argued that, the respondents did not file the WSD and faulted the chairman of DLHT for framing issues in the absence of WSD. Perusing the record of appeal, we found on 10th March, 2017 the Chairman ordered the respondents to file WSD on 17th March, 2017. On 18th April, 2017 the Chairman remarked in the proceedings that, all parties were present and the pleadings were complete. This remark shows that the WSD was filed. Therefore, we do not agree with Mr. Makowe that the WSD was not filed at the DLHT. Similarly, we do not agree with the argument that the issues were framed in the absence of the WSD. What is evident is that the record of appeal is incomplete as the WSD of the respondents was missing in the record. Further, on 9th May, 2017 the DLHT framed the following issues:

1. Whether the applicant is the legal owner o f the disputed land.
2. Whether the applicant husband was the father o f the respondent.
3. Whether the will was a valid will.
4. Who is the lawful owner o f the disputed land between the applicant and respondents.
5. Relief It is our take that issue no. 2 and 3 are not land matters and do not fall under the jurisdiction of the DLHT, but the Chairman of the DLHT in his judgment on page 40 determined the issue of will and concluded that the will was not a valid will. Regarding, the issue of paternity the Chairman on the same page concluded that the respondents were not biological sons of the late Gabriel Magoko @ Juma. It is our firm view that the DLHT stepped overboard and determined issues not in its jurisdiction. This is a fatal irregularity which rendered the whole proceedings a nullity. The learned counsel have urged us to step into the shoes of the first appellate court and quash the proceedings and set aside the judgment of the DLHT. We are aware that this is a second appellate court, but the law is settled that where the courts below fail to consider such evidence, this Court can step into the shoes of the first appellate

court and do what it was supposed to do and evaluate the evidence not considered by it. See - Director of Public Prosecutions v. Jaffari Mfaume Kawawa, [1981] T.L.R. 149, Musali Lukanya and Another v. The Republic (Criminal Appeal No. 625 of 2021) [2023] TZCA 17745 (6 October 2023, TANZLII) and Stephano s/o Victor @ Mlelwa v. The Republic (Criminal Appeal No. 257 of 2021) [2023] TZCA 152 (29 March 2023, TANZLII). Therefore, we happily assumed that task and it is our finding that the proceedings of DLHT were marred with irregularities, and in fact it had no jurisdiction to determine those two framed issues. Therefore, we invoke section 4(2) of the AJA and quash the proceedings and set aside the judgment of the DLHT. Reverting to Appeal No. 50 and other applications that followed it, it was argued by the learned counsel that the appellant in that appeal and the applicant in the applications that followed was Chacha Juma Magoko as administrator of the estate of Gabriel Matiko @ Juma. It was evident from the proceedings of the DLHT that the administrator of estate of Gabriel Matiko @ Juma was not a party to the application before the DLHT. It is settled law that such a person who was not a party to the suit cannot impugn the decision otherwise than by revision. See - Victor Rweyemamu Binamungu v. Geofrey Kabaka and

Another, Civil Application No. 602/08 of 2017 [2020] TZCA 290 (10 June 2020, TANZLII) and Mehar Singh t/a Thaker Singh v. Highland Estates Limited and Others (Civil Reference No.2 of 2014) [2016] TZCA 825 (11 July 2016, TANZLII). In the later case, the Court stated: "the Court has, upon numerous decisions, held that a person whose rights or interests have been prejudiced by a High Court may approach this Court in revision even if he/she was not a party to the proceedings giving rise to the impugned decision." Therefore, in that respect the administrator of estate could not appeal against a decision in which he was not a party. In addition, the appellant, Chacha Juma Magoko had never been appointed as administrator of estate of Gabriel Matiko. The person appointed as the administrator of estate of Gabriel Matiko was Vincent Chacha Juma. Therefore, the appellant had no locus standi to appeal against the decision of the DLHT or file all those applications at the High Court or the appeal in this Court. Hence, the Appeal No. 50 was incompetent before the 1s t appellate court as the appellant had no locus standi. This applies to all the applications made thereafter and the appeal before this Court. 10

In the circumstances, we have to intervene under section 4(2) of the AJA and we declare that all proceedings starting from Civil Appeal No. 50 of 2017 were a nullity. The decisions and orders arising therefrom are therefore quashed and set aside. We make no order as to costs. DATED at MWANZA this 20th day of August, 2024. R. K. MKUYE JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 21s t day of August, 2024 in the presence of Mr. Hussein Kitta Mlinga, learned Counsel for the Respondents and also holding brief for Mr. Baraka Makowe learned Counsel for the Appellant, is hereby certified as a true copy of the original. ii