Bernard Chidodolo vs Said Ngaleni (Misc. Land Case Appeal No. 70 of 2016) [2017] TZHC 2180 (22 August 2017)

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) MISC. LAND CASE APPEAL NO. 70 OF 2016 (From the Decision o f the D istrict Land and Housing Tribunal o f Dodoma D istrict at Dodoma in Land Case Appeal No. 76 o f 2015 Originating from Mvumi Mission Ward Tribunal Land Case No. 10 o f 2015) BERNARD CHIDODOLO ............................................... APPELLANT VERSUS SAID NGALENI..........................................................RESPONDENT JUDGMENT 10/7 & 22/8/2017 KWARIKO, J. The appellant herein formerly filed a suit claiming a piece of land against the respondent herein. He won the suit whereas the respondent successfully appealed against that decision before the District Land and Housing Tribunal of Dodoma. Therefore, the appellant came to this court against the decision of the district tribunal where he raised four grounds of appeal as follows;

1. THAT, the appellate tribunal o f Dodoma D istrict erred in law and fact to have allow ed the appeal in favour o f the Respondent and against the Appellant.

2. THAT, the appellate tribunal o f Dodoma district erred in law and fact in adm itting that the respondent was appointed as an adm inistrator o f the estate o f the late Vumilia Masima (the respondent's divorced w ife's) property while no documentary evidence was tabled before the appellate tribunal to prove that he was adm inistrator.

3. THA T, the appellate tribunal o f Dodoma district erred in law and in fact in sw indling the evidence o f the two village leaders namely Esternati Tomm i aged 82 years old and that o f Silvester Muhoga o f 71 years o f age which they adduced at the Mvumi Mission Ward Tribunal that the land in dispute is the appellant's property as it belonged to the appellant's father one Elemea Chidololo who is now deceased.

4. THA T, the appellate tribunal o f Dodoma erred in law and in fact in not considering the fact that the Respondent and the late Vumilia Masima were divorcees since 1992 and that the late Vumilia died in 2006 while in the hands o f the parents. This is why the respondent has no documents which show that he is the adm inistrator o f the property o f the late Vumilia Masima as m entioned in paragraph 2 herein above. This appeal was heard ex-parte against the respondent herein as he did not appear though duly served on 6/5/2017. During hearing of the appeal the appellant did not offer any further explanation in respect of his grounds of appeal which he adopted.

Now, this court is required to decide whether this appeal has merit. Going through the grounds of appeal two complaints arise, first; that, the disputed land belongs to appellants father who is now deceased and second; that, the district tribunal erred to hold that the respondent was administrator of the estate of his late divorced wife without any documentary proof. Starting with the first complaint this court finds that if the appellant maintains that the disputed land belongs to his deceased father he ought to show under what capacity he filed the suit before the trial tribunal. In fact at the Ward Tribunal the appellant was not specific as to who was the alleged owner of the disputed land. At first he claimed that the disputed land was theirs as the grandfather and grandmother were deceased and that he informed his father of the trespass by the respondent hence he came to claim. Hence, this kind of evidence shows that the appellant did not show that the disputed land belonged to him to have capacity to sue. In its decision the district tribunal found that the appellant had not shown that he had locus standi to sue over disputed land. This court is of the same opinion since to be able to file action against another one has to show that his interest has been breached or interfered with (see also LUJUNA SHUBI BALLONZI, SENIOR V REGISTERED TRUSTREES OF CHAMA CHA MAPINDUZI [1996] T.L.R 203). Now, this court agrees with the district tribunal that the appellant did not show that the disputed land was his own property to have locus standi to sue or be sued. However, while the district tribunal was right to decide that the appellant had no locus standi to sue it erred to go ahead and 3

decide that the disputed land belonged to the respondent herein as lawful heir of the property of his deceased wife. That tribunal ought to end the matter where it decided that the appellant had no locus standi to sue and nullified the trial tribunal's proceedings where the matter would have reverted to the original state before the case was instituted. For the foregoing this court by its powers envisaged under section 43 (1) (b) of the Land Disputes Courts Act [CAP 216 R.E. 2002] declares the proceedings of the Ward Tribunal nullity and are therefore quashed. This goes to the proceedings of the district tribunal which originated in the null proceedings. This present appeal thus lacks base within which to stand and it is dismissed. Finally, the appellant, if he so wishes, can start afresh to sue according to law. No order for costs as the omission was contributed by the two tribunals. It is so ordered. M.A. KWARIKO JUDGE 21/8/2017 DATED at DODOMA this 21st day of August, 2017 JUDGE 21/8/2017

Date : 22/08/2017 Coram : Hon. D.FL Lyimo - DR Appellant : Present Respondent : Absent c/c : R. Mahamoud Court : The case is conning for Judgment today. D.R. LYIMO DEPUTY REGISTRAR 22/8/2017 Court: Judgment delivered on this 22n d day of August, 2017 in the presence of Appellant and in the absence of Respondent. Court Clerk Mahmoud present. /< ‘ ' - V D. R" LYIMO v . DEPUTY REGISTRAR \ r_ , 22/8/2017

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Court: Right of Appeal Explained. D. R.1LYIMO DEPUTY REGISTRAR 22/8/2017 6