IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY OF DODOMA

AT DODOMA
MISC. LAND APPEAL NO. 7 OF 2022

NELSON MSOKOLO.................................................... APPELLANT

VERSUS

NEEMA DANIEL MSOKOLO........................................ RESPONDENT

(Appeal from the Judgement of Dodoma District Land and Housing Tribunal-
O.Y. Mbega-Chairman)
Dated 10th day of January, 2022
In
Land Appeal No. 166 of 2020

JUDGMENT
25thJuly&2ndSeptember,2022

MDEMU, J:.
This is a second appeal. Briefly at Kibaigwa Ward Tribunal, in Land

Case No. 43 of 2020, the Respondent filed a land dispute claiming her

father's house which was under the custody of the Appellant since her

father's death. The Appellant was administering/taking care of such house

waiting attainment of age of majority of the deceased's children. Upon being

matured, the deceased's children (the Respondent inclusive) decided to

claim their house. The Respondent denied the claim stating that, the house

belongs to him and has a registered title to that effect. Following this, the

trial tribunal decided in favour of the Respondent, the decision which was

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upheld on appeal by the District Land and Housing Tribunal. The Appellant

was aggrieved by that decision hence, this appeal on the following grounds:

1. That, the Honourable Chairman erred in law in deciding

in favour of the Respondent herein as the lawful owner
of the premise in dispute without considering the
strong evidence of the Appellant.
2. That, the Honourable Chairman erred in law in deciding
on his on basis without having power to decide the
matter on himself.
3. That, the Honourable Chairman erred in law in deciding
in favour of the Respondent herein as the lawful owner
while the Respondent had no locus standi.
4. That, the Honourable Chairman erred in law and fact
in upholding the decision of the Ward Tribunal without
considering that the decision of the Ward Tribunal
differs with his decision.
5. That, the Honourable Chairman erred in law in not
giving reasons for differing with the opinion of
assessors.
6. That, the Honourable Trial Tribunal erred in law and in
fact in giving unreasonable and unjustifiable judgment.

On 25th of July, 2022 when this appeal was scheduled for

hearing, the Appellant was represented by Mr. Erick Shauri, learned

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Advocate whereas the Respondent had the service of Ms. Rahel

Kalinga, also learned Advocate.

I have considered parties' submissions, record of both the Ward and

District Land and Housing Tribunals as well as applicable laws. Beginning

with the fifth ground of appeal; the question is whether the learned Appellate

chairman assigned reasons in departing with opinion of assessors. On this

issue, the Appellant's counsel submitted that, the chairman didn't assign

reasons on differing with assessors who were of the opinion that, the matter

be remitted to the Ward Tribunal since the Respondent sued on personal

capacity instead of suing as the Admnistratrix of the deceased estate. The

Respondent on her party argued that, the chairman is not bound by the

Assessors opinion and that he was satisfied with the evidence and

compliance with the Law.

In the case at hand throughout the record, it is clear that, the Chairman

sat with two assessors namely, F. Mwedipande and K. Kitundu. Also, the

record tells it well that, on 10th day of January, 2022, the two assessors

submitted their written opinion and the same was read to the parties. It is

equally on record that, the chairman recorded and considered assessors'

opinion while making decision as reflected in his judgment at page four and

five as hereunder:

"Wazee wa Baraza nilioketi nao katika shauri hili waiikuwa

na maoni yafuatayo;

1. K.J. Kitundu
Baada ya kusikiiiza maeiezo ya pande husika na kusoma
mwenendo wa shauri hili kutoka baraza ia Kata ya
Kibaigwa,nimebaini kuwepo kwa dosari ya mjibu rufaa
kutokuwa na hati ya usimamizi wa mirathi Hi kudai haki ya
marehemu baba yake\.shauri Hkarudiwe katika baraza ia
kata baadaya mjibu rufaa kupaa hati ya usimamizi wa
mirathi.
2. F. C. Mwedipando
Bada ya kuwasikiiiza wadaaawa wote na kusoma
mwenendo wa Baraza ia Kata naona yafuatayo, shauri
Hkasikiiizwe upya katika baraza ia kata Una dosari ya mjibu
rufaa kutokuwa na hati ya usimamizi wa mirathi.

In considering such opinion, the Appellate learned chairman noted the

following in part:

Baada ya kupata maoni ya wazee wa Baraza pamoja na

kupitia mwanendo wa Baraza ia Kata,nimejieiekeza katika
sababu za rufaa kwa kesi ya Paulo Peter Semwaja
dhidi ya Intergrated Property Consultancy Co. Ltd
Rufaa Namba 21 ya Mwaka 2017 Mahakama Kuu ya
 Tanzania Dar es salaam, Hiamuriwa Kwamba Hi
kuthibitisha.....

He then concluded his analysis at page six of the impugned judgment

that:

Hivyo basi, kwa sababu hizo, naungana na hukumu ya

Baraza ia Kata kutamka kwamba eneo bishaniwa ni haki
ya mjibu rufaa na wenzake waiioachwa na baba yao, hivyo
warithi wa Daniel Msokolo ndio wenye haki nae neo hilo
na baba yao mdogo asidhulumu haki ya Watoto. Rufaa
imekataliwa kwa gharama"

Looking at the above quoted pages of the judgment of the first

Appellate Tribunal, did the chairman considered the assessors' opinion in the

course of making decision? In my considered view, a phrase "Baada ya

kupata maoni ya wazee wa Baraza pamoja na kupitia mwanendo wa Baraza

la Kata "deployed by the learned Appellate Chairman to the tribunal is in line

with the dictates of section 24 of the Land Disputes Court Act, Cap.216 on

the part of consideration of opinion of assessors which provides, thus:

"In reaching decision, the chairman shall take into

account the opinion of the assessors but shall not be

bound by it, except that the chairman shall, in the

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 judgment give reasons for differing with such opinion".

(emphasis mine)

From the foregoing provision, it is obvious that, opinion of assessors

was taken into account by the Appellate Chairman. Next now is whether

reasons towards such departure got assigned. Again, the words of the

learned Appellate chairman that "Hivyo basi kwa sababu hizo, naungana na

hukumu ya Baraza ia Kata... "used in the judgment, particularly after his first

pronouncement in consideration of the opinion of assessors indicate that,

reasons were assigned. What perhaps is in the mind of the Appellant is want

of express words by the Appellate Chairman on departure from opinion

assessors. The language of the judgment as a whole after recording opinion

of assessors, without using the word "departure" or "differing", may connote

that reasons were assigned. This ground is accordingly dismissed.

On the issue of locus standi complained in the third ground of appeal,

the record is clear that, in probate cause No. 3 of 2019 in the Primary Court

of Kibaigwa, the Respondent herein was appointed as an Administratrix of

the estate of the late Daniel Jeremiah Msokolo. The latter was the

Respondent's father. In the proceedings to that probate cause, particularly

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at page 7, all the estate of the deceased was under the custody of the

Appellant. Let the record in this speak of itself as hereunder:

Hoja za Mahakama;
Hawa;
Marehemu kaacha nyumba moja ya kuishi na nyumba moja

ya biashara na mashamba pia. Mali hizo kwa sasa zipo chini

ya shemeji yangu ambaye anaitwa Nelson Jeremiah

Msokoio.

As it is, is not clear if the house in dispute is among the estate of the

deceased or is the sole proprietorship of the Appellant. What however is

clear is that, the Respondent herein claimed to the Ward tribunal a house

which the Appellant herein refutes to belong to estate of the deceased. Of

course, he went further showing certificate of occupancy indicating

ownership of landed property in Plot No. 192 Block 'A' which the Responded

claimed to be a forged one. In it therefore, and since there is no evidence

that the house in dispute was divided to the Respondent as a heir, then it is

obvious that, whatever legal action the Respondent wanted to take, or took

as in this land dispute, have to be in the capacity of Adminstratrix.

In the Registered Trustee of SOS Children's Villages Tanzania

vs. Igenge Charles & 9 Others, Civil Application No.426/08 of 2018

(unreported) cited to me by Mr. Erick Shauri, in its ruling dated 14th July,

2022 observed that, locus standi is a jurisdiction issue requiring a person

bringing an action in court to have rights or interest breached or interfered.

Specific on a person bringing an action in respect of the deceased estate,

the Court of Appeal had the following observation as seen at pages 10

through 11 of the ruling:

In the light of what was specifically pleaded by the 1st

respondent, the shamba and the subject matter in dispute

belonged to his late father the late Michael Msuma who died

in 1994. According to the certificate of death No.00144710

issued by the Registrar of Births and Deaths, Nyamagana

District, and the 1st respondent was appointed as the

administrator of the estate of his late father by the Primary

Court of Nyamagana. A follow-up question is whether the 1st

respondent had locus standi to commence a suit against the

2nd to lCfh respondents. In other words, did he have the

capacity to commence litigation in his own name and capacity

against the 2nd to l&h respondents over the land which

belonged to his late father. Our answer is in the negative. We

are fortified in that regard due to what was pleaded by the 1st

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 respondent that, the land in dispute belongs to the late

Michael Msuma considering that, the record is silent if that

land was eventually distributed to heirs including the 1st

respondent given his appointment as the administrator. In

this regard, before the tribunal, the 1st respondent had not

showed that his right or interest has been breached for him

to sue the 1st to l(fh respondents in his own name, instead,

the 1st respondent being an administrator, ought to have sued

as a personal and legal representative of his late father which

was not the case.......

Given the above position, facts which are similar to the instant appeal

where the Respondent herein, being an Adminstratrix of the estate of her

father the late Daniel Jeremiah Msokolo, filed a land dispute in the ward

tribunal of Kibaigwa claiming that the house belonged to his late father, thus

wanted the tribunal to declare so. The dispute was filed in her name and not

as an Adminstratrix of the estate.

As observed in Registered Trustee of SOS Children's Villages

Tanzania vs. Igenge Charles & 9 Others (supra), the remedy available

is to nullify proceedings and judgments in both tribunals, as I hereby do. In

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case the Respondent herein so wishes, may commence a land dispute in a

tribunal of competent jurisdiction as an Adminstratrix of the estate of the

late Daniel Jeremiah Msokolo. The move may not be in her personal capacity,

save where the estate in dispute was divided to her as a heir.

Since these two grounds suffice to dispose of the whole appeal, the

remaining grounds of appeal are not going for deliberation. I make no order

as to costs. It is so ordered.

JUDGE
02/09/2022
DATED is 02nd day of'September, 2022

Gerson J.
JUDGE
02/09/2022

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