Kekora Masoka vs Robert Machine (Misc. Land Appeal No. 156 of 2015) [2017] TZHC 3362 (22 August 2017)

, '• ·• ~ '° . /: d .. ,6'7-1) ) -· j ;j '- ' ;/ IN THE HIGH COURT OF TANZANIA AT MWANZA MISC. LAND APPEAL NO. 156 OF 2015 {From the Decision of the District Land and Housing Tribunal of Mara at. Musoma in Land case Appeal No. 153 of 2013 Ward Tribunal of Salama Ward in Application NO. 32 of 2012} KE KORA MASOKA ... .................... ■ I ■ •• I. ■ I ••• ••• APPELLANT VERSUS ROBERT MACHINE .. - ................................ RESPONDENT ·oate hearing concluded .. 03/07/2017 & Date judgment delivered .. 22/O8/2017 GWAE, J. JUDGMENT The appellant successfully filed a land dispute in the Salama Ward Tribunal (to be referred hereinafter as trial tribunal) within Bunda District, on appeal before the District Land and Housing Tribunal for ~usoma at Musoma '· (appellate tribunal), the trial tribunal decision was reversed. 1 Aggrieved by the appellate tribunal dated 17 th July 2015, the appellant on 14 th September 2015 filed thi_s appeal consisted of five grounds of appeal and one additional ground of appeal. However the appellant via his counsel, Mr. Duttu during hearing of the appeal opined to abandon 1, 2 ~ 1

and 4 and leave to that effect was granted, thus three grounds remained for the purpose of this land appeal, notably;

1. That the appellate tribunal chairperson in fact for failure to consider the historical perspective of disputed piece of land.
2. That the appellate tribunal chairperson erred in law and in fact by not considering the fact that the ward tribunal properly. evaluated the evidence before the same and discovered the appellant was a real owner of the land in dispute.
3. That the appellate Tribunal had seriously misapprehended the evidence on record and in that way disagreed with the assessors who sat with him without assigning sufficient reasons As earlier indicated, the appellant had legal servics of Duttu, the learned advocate whereas the respondent was duly represented by an advocate known by names of Cosmas Tuthuru. Mr. Duttu, regarding 1 st (3 rd ground in the former appellant's ground of appeal) ground submitted that the Land in question was granted to the appellant's father since 1990 by Masaze village and that the same has been under use and development even after 2005 when the appellant's father died. ' 2

The appellant's advocate further argued that purported subsequent grant of the suit land to the respondent was illegal as _the former grant of the disputed land was not revoked, thus if the appellate tribunal had properly evaluated the evidence on record it would have not arrived at that decision subject of this appeal (2 nd or 5 th ground). Mr. Duttu also stressed the 3 rd ground of appeal in that the chairperson of the appellate tribunal did not consider evidence adduced by both sides and that he did not give valid reason for his departure from assessors' opinion and therefore contravention of section 24 of Land Disputes Courts Act, Cap 216 R. E, 2002 and then referred this court in SDA Church V Nyekabe Masale, Civil Appeal No. 112 of 2015 where Court of Appeal held reason for departure is mandatory. Vigorously attacking the appellant's appeal, Mr. Tuthuru submitted that the respondent us a lawful owner of the suit land as allocated by the Village Land Council. The counsel for the respondent added that that the time the land was allocated to the respondent the same was vacant adding that the appellant did not bring any documentary evidence to establish that he was allocated by the Village Authority.~ _ 3

Mr. Tuthuru went stating that the appellant did not establish relationship that existed between him and his deceased father. Mr. Tuthuru also argued that the appellate tribunal's record revealed that the appellant's father was granted a piece of land different from the suit land and that in the event of error or irregularity by the appellate tribunal the same is curable under section 45 of the Land Disputes Courts' Act which cures defects or omissions or error unless that error, omission or irregularity occasioned injustice. In his rejoinder, Mr. Duttu stated that the appellant is interested in the suit land and therefore had Locus standi, emphasizing his submission Mr. Duttu cited a decision of this court at Tabora in Misc. Land Appeal No. 63 of 2010 H.C at Lusasula v. Lugito Bulaya (Unreported). Brief background of the dispute between the parties is simple and as follows; that the respondent applied for grant of a piece of land for residential and farming purposes in 2006 as evidenced by the respondent (DWl), Kabaka Mtarimbo (PW4) and Matutu Mashine (DW2) and that he wrote a reminder letter on 18 th lune 2010 and was granted a piece of land vide allocation letter dated 12 th October 2010. ~ 4

That immediately after the purported grant of the suit land located at Maseze area by the Salama village authority, neither of the parties attempted to make development in the disputed, consequently institution of this case. That, the appellant's father one Masoka Kihili had married two wives, the appellant's mother (Yunis Marwa-PW2) inclusive. That the appellant's father died in 2005 and another wife (Maria Elbarody) of the appellant's father died in 2008. Since question of locus standi is fundamental one and pre-requisite to litigation, I am therefore bound to dwell to it before jumping to the appellant's grounds of appeal. The counsel for the appellant strongly argued that the appellant had locus standi as he is interested party to the land in dispute and urged this court to refer to the decision of this court in Lusasula v. Lugito Bulaya (supra) while the respondent in his reply to the appellant's petition of appeal challenged appellant's locus standi and at the hearing via his counsel, stated that the appellant before the trial tribunal did not establish relationship that existed between him and his deceased father.~ 5

In the former case of Lusasula v. Lugito Bulaya where respondent was a deceased's son and the same issue was not raised at the trial tribunal moreover it is evident from the judgment that the respondent initially happened to have locus standi and from the same was said to have been missing. In the former case his lordship, justice Rumanyika held that and I I quote; "A person cannot, while already nursing his wounds, wait for someone else prepare and then come up for action. Trespass on land is potentially a threat by all circumstances. The injuries could be nuisance of any kind like it happened in this case that the appellant, having trespassed on the cemetery, he harmed the grave. He paid the fine on admission". In our instant, case we are informed that the PW2, appellant's mother was in separation or was divorced since 2001 and that the appellant's father had married two wives. Moreover in this case as opposed to the former case where the respondent initially had locus standi while in the later dispute the appellant had no authorization from his clan taking into account that the shifted their residence immediately after 2001 when marriage fracas occurred between the appellant's father and mother. ~ 6

.• In this case the appellant had sued in his own name, had said nothing about other his deceased father's heirs, particularly those of Maria Elbarody who alleged to have passed away in 2008. In this instance matter, the appellant could not sue on his own name unless established that he bequeathed the land in dispute and that he was only son of the deceased person, which is not the case in this present dispute. The appellant ought to have a leg to stand (locus standi), right to bring an action in a court of law or quasi judicjal body, the appellant according to the evidence on record is a mere heir of his late father, worse still children born by his step mother had not been mentioned nor did they, if any, turn up during trial or his clan. In our present case the appellant did not vividly tender letters of administration nor did he say anything about administration of the estates of his late father, this is not proper as consistently held by this court and the Court of Appeal, how can one step into shoes of a deceased person without being appointed administrator and stands or sues on his or her own name, for instance, for instance Alli Kalulu Nyanda v lleo lustini ~ 7

& S Others Misc. Land Appeal No. 92 of 2015 and Kagera Karani v Philemon Makonyera and another, Land Appeal No. 81 of 2014 High Court at Mwanza (unreported) Thus in order for him to have a right of standing in a case (law suit) he must have a letter of administration as administrator or will as executor, failure to have such power, a court or tribunal will be justified to strike out the matter before it. Hypothetically, if the respondent who is suing in his own names is declared a lawfully owner of the suit land and while not appointed administrator, what will be the position of other heirs if any in respect of the land in dispute, obviously, that declaration might yield other dispute between the deceased's heirs-and the appellant, this is why Probate and Administration of Estates Act comes into play. Having found the appellant, in the circumstances of this case, lacked locus standi to bring this dispute as well as mis-joinder of Salama village Government, I am now compelled to decline to further determine other grounds of appeal as this issue is capable of disposing of the appellant's appeal and nature of its consequential order requires me to end here.~ 8 <,.

In the light of the reasons given herein, I think interest of justice of this particular case invites an order of this court nullifying the proceedings and subsequent orders made by the tribunals below though it may appear to be rigorous act but interest of justice of this particular case demands so. Consequently, the proceedings and decisions of the Ward Tribunal and the District Land and Housing Tribunal for Mara at Musoma are quashed and set aside, the appellant is at liberty to lodge an application against the respondent in an appropriate tribunal but subject to law of limitation. The appellant if wishes to re- file must have been granted an authority of doing so by family members and court as well. It is so ordered. ~-----.. Judge 22/08/2017 Right of appeal or any other rem:~~ned Judge 22/08/2017 9