Richard Philipo Ngoloke vs Michael Mwela (Land Case Appeal No. 29 of 2016) [2016] TZHC 2964 (6 December 2016)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MBEYA AT MBEYA LAND CASE APPEAL NO. 29 OF 2016 (From Mbeya District Land and Housing Tribunal at Mbeya, Application No. 54 of 2010) RICHARD PHILIPO NGOLOKE (An Administrator of the Estate of the Late Philip o .[Vgoroke) ........................................................... VERSUS P!ICIiAEL, M1JELA ................................................ RESPONDENT JUDGMENT A.F. NGWALA, J. The Appellant Richard Philipo Ngoloke being the Administrator of the estate of the late Philipo Ngoloke is dissatisfied with the decision of the District Land and Housing Tribunal for Mbeya dated 01/03/2014 which entered Judgment in favour of the respondent and ordered the appellant to pay Tshs. 10,000,000/= and Tshs. 15,000,000/= for general damages. That decision is challenged on the grounds that the honourable trial tribunal erred both in points of law and facts to entertain a matter which was "Resjudicata" vide PageloflO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MBEYA AT MBEYA LAND CASE APPEAL NO. 29 OF 2016 (From Mbeya District Land and Housing Tribunal at Mbeya, Application No. 54 of 2020) RICHARD PHILIPO NGOLOKE (An Administrator of the Estate of the Late .F'hilipo I'.lgoroke) ........................................................... APPELLA.1'IT VERSUS 1VIIC}IAEL MWELA ................................................ ISPOI'1DENT JUDGMENT A.F. NGWALA, J. The Appellant Richard Philipo Ngoloke being the Administrator of the estate of the late Philipo Ngoloke is dissatisfied with the decision of the District Land and Housing Tribunal for Mbeya dated 01/03/2014 which entered Judgment in favour of the respondent and ordered the appellant to pay Tshs. 10,000,000/= and Tshs. 15,000,0001= for general damages. That decision is challenged on the grounds that the honourable trial tribunal erred both in points of law and facts to entertain a matter which was "Resjudicata" vide Pageloflo

the decision of Civil Case No. 103 of 2007 of Ruanda Ward Tribunal. The matter was wrongly filed against Philipo Ngoloke who had died on 29/09/2009. There was no proof for the sum of Tshs.10,000,000/= as loss of the expected income Tshs. 15,000,000/= as general damages. The Appellant insisted that the Preliminary Objection filed by the deceased respondent and an application for review filed against the deceased respondent and the Ruling on the review against him was also wrong in law. Mr. Mwakolo the learned Advocate who represented the appellant submitted that Application No. 54 if 2010 was "Resjudicata" by the decision of Civil Case No. 103/2007 by Ruanda Ward Tribunal. The District Land and Housing Tribunal Judgment in Application No. 1 of 2007 by Chairman Hon. Wagire ruled out that Application No. 1 of 2007 was "Resjudicata" vide Civil Case No. 103/2007. Therefore Application No. 54/2010 was a repetition of the matter that had already been decided and it was wrongly instituted against Philipo Ngoloke who died on 29/09/2009. The said Application No. was lodged on 11 / 05/2010 against Philipo Ngoloke who had already died. The Counsel for the appellant contended that the District Land and Housing Tribunal ought to have struck out the application which was filed against the deceased. A proper application ought to have been filed against the administrator of the estate of the said deceased. The District Land and Housing Tribunal ordered an administrator to be appointed on 17/04/2014 who was yet to be Page 2 of 10

, appointed until the submissions were made on 17/10/2016 before this court. The Application was illegally before the District Land and Housing Tribunal. Regarding the 3rd ground of appeal, Mr. Mwakolo, learned Counsel submitted that it was not proper for the District Land and Housing Tribunal to grant the award of Tshs. 10,000,000/=. On the evidence of the respondent that was weak. The award of Tshs. 15,000,000/= as general damages to the respondent was not proved by the respondent on how he suffered. It was submitted that, since the proceedings in Application No. 54 of 2010 was filed against the deceased, the effect of the Judgment by the trial tribunal was nullity. The Judgment by Honourable Wagire Chairman delivered on 06/11/2008 in Application No. 107 in favour of the deceased should not have been disturbed. The Respondent, who was represented by Ms. Mgaya, learned Advocate prayed for this court to disregard all the submissions by Mr. Mwakolo on the ground that they were misconceived. On the issue of "Resjudicata", Ms. Mgaya submitted that the Counsel for the appellant failed to produce the Judgment by Ruanda Ward Tribunal. She further submitted that Honourable Wagire never tried the matter between those parties as contended by the learned Counsel. The decision by the Ward Tribunal was not "Resjudicata" because it was nullified by the District Land and Housing Tribunal by Honourable Mbilinyi the Chairman of the District Land and Housing Tribunal on 23/03/2010. That Ruling by Honourable I' Page 3 of 10

Mbilinyi had never been challenged and the basis for nullification was the two contradicting decisions. Miss Mgaya argued that the District Land and Housing Tribunal exercised its powers after having noted the irregularity. The learned Counsel cited Section 36 of CAP. 216 together with the case of Village Chaiman KCU Mateka v. Anthony Hyen (1988) T. L. R. 188. As to the 2nd ground Miss Mgaya submitted that the said Philipo Ngoloke was the father of Richard Ngoloke who appeared as the appellant in this appeal. The said Philipo Ngoloke had never appeared before both tribunals. It was the appellant who was appearing on behalf of his father by a Power of Attorney. Richard Ngoloke made several applications using the deceased's name and had never disclosed the death of Philipo Ngoloke, his father. For this reason Miss Mgaya argued that at this juncture the appellant cannot turn and allege that the matter was filed against the deceased. She thus insisted that Application No. 54 of 2010 was proper. Regarding the specific and general damages as awarded by the District Land and Housing Tribunal, Miss Mgaya contended that the District Land and Housing Tribunal was proper to arrive at the conclusion basing on the evidence adduced by the Respondent. The Respondent proved that he owns a piece of land in dispute and that he obtained a building permit for construction of a business premise or building which was demolished by the appellant. Page 4 of 10

The Respondent further proved before the tribunal that upon such demolition, the respondent did not construct another building on time. His witnesses including the local leaders who resolved the matter testified in favour of the respondents and the appellant did not contradict such evidence. Miss Mgaya vehemently contended that, the appellant did not bring evidence to prove that he was the owner of the disputed land. The Counsel was of the view that since the disputed land was located at the prime area of Mwanjelwa market, the respondent had suffered loss of use and expected income. As to the general damages, she contended that the award of general damages was at the discretion of the tribunal which did so after visiting the locus in quo, and observed how the respondent had suffered. As to the last ground of appeal, the Counsel for the respondent submitted that the application for review was made against the Ruling of Hon. Nyaluke, because the Chairman Mr. Nyaluke had struck out Application No. 10/2014. The Ruling by Nyaluke of 29/08/2012 which he struck. out an Application basing on the point of "Resjudicata" was not seen by Hon. Mbilinyi. The Respondent therefore applied for Review of this Ruling which was accepted and determined on merit. Miss Mgaya submitted that this particular point lacked merit and prayed for dismissal of Appeal with costs. Page 5 of 10

In rejoinder Mr. Mwakolo insisted that even if there was legal representation vide the Power of Attorney, the same ceased to operate on 29th September, 2009 when late father of the appellant died. The proceeding after 29th September, 2009 were a nullity. Even if Richard had made several applications including Application No. 166/2009 and No. 52/2009, in the absence of Letters of Administration the same too were a nullity. Thus Application No. .54/20 10 was not properly filed because it was against the deceased who was not legally represented. Mr. Mwakolo submitted that even if there was any Ruling made by honourable Nyaluke in Application No. 54/20 10, the same was made against the deceased who was unrepresented. The learned Counsel prayed for this court to allow the appeal with courts. Having heard the respective advocates for the parties, the issue for the court's determination in this appeal is whether or not Application No. 54/20 10 was properly filed in the District Land and Housing Tribunal for Mbeya. In ascertaining this issue, I have perused the records in Application No. 54/2010 it is titled, "Maiko Mwela ..........Applicant Versus Philipo Ngoloke ......Respondent." Page 6 of 10

It was filed in the District Land and Housing Tribunal for Mbeya on 12th February, 2013. The Judgment and Decree appealed against had the same parties. The Written Submissions made by the parties in the District Land and Housing Tribunal for Mbeya had the same names of parties of Michael Mwela as Applicant and Philipo Ngoloke as the Respondent. The contention by the Counsel for the Respondent that it was proper for one Richard Philipo Ngoloke to stand for his deceased father who had already died and was dead since 2009 by way of a Power of Attorney is wrong in law because this was a strange and unknown procedure adopted by the District Land and Housing Tribunal for Mbeya. It is my considered view that Philipo Ngoloke was neither a necessary party to an Application No. 54 of 2010 nor a party with the capacity to be sued or sue because he was dead. He could be sued or sue through the appointed Administrator or Administratix of his estate. That is a legal representative as defined under Section 3 of theCivil Procedure Act, [CAP. 33 R. E. 2002] to mean:- "Any person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sue or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued." Page 7 of 10

In the book titled "Civil Procedure in Tanzania, A Student's Manual at page 31, Chipeta B. D. wrote that the necessary party in the proceedings is the party whose presence in the record of the court is necessary for the purpose of disposing of the proceedings completely and effectively and conclusively." The necessary party is therefore any party without his presence in the record of the court there can be no effective proceedings, the Judgment and the Decree. These words were also adopted in the case of Juma B. Kadala v. Laurent Mnkande (1983) T. L. R. 103. Again the presence of a necessary party in Civil litigations is indispensable as it was held in the above case of Juma B. Kadala v. Laurent Mnkande (supra) that in the suit for recovery of land sold to a third party, the buyer should be joined with the seller as necessary parties. These authorities cited herein above, all insist the presence of a party to a suit. The District Land and Housing Tribunal had improperly proceeded with the suit in the name of a party who had no locus stand before it. The proceedings without a legal representative or the necessary party, renders the Judgment, the Decree or Ruling and Orders there from to be ineffective. Consequently the arguments by the learned Counsel for the appellant that the Proceedings, Judgment and its subsequent Decree by the District Land and Housing Tribunal in Application Page 8 of 10

No. 54 of 2010 were nullity are valid. In the upshot I find that the I Application was not properly made before the tribunal. That being said it suffices not to discuss and analyse the other grounds of Appeal as contended by the Counsels for both the parties to this Appeal, as the whole of the Proceedings, Judgment and Decree in the District Land and Housing Tribunal are a nullity. In law they are considered as if nothing was done under the eyes of the law. For the said reason, this appeal has merit. Consequently it is allowed with costs; The Proceedings, Judgment and Decree of the District Land and Housing Tribunal for Mbeya are hereby declared null and void. Order Accordingly. k JR \ 7 \ ' \ I * 4' A.F. Ngwala Judge 06/12/2016 Page 9 of 10

Date: 06/12/2016 Coram: A. F. Ngwala, J. Appellant: Present For Appellant: Mr. Chapwa for Mr. Mwakolo Respondent: Present For Respondent: Miss Mgaya (Advocate) Court: Judgment delivered in the presence of the parties and their respective Advocates. Court: Right of Appeal to the Court of Appeal of Tanzania explained. J~~ 11 A.F. Ngwala Judge 06/12/2016 Page 10 of 10