IN THE COURT OF APPEAL OF TANZANIA
AT KIGOMA
(CORAM: MUGASHA, J.A., SEHEL. J.A.. And MWAMPASHI. J.A.1
CIVIL APPEAL NO. 485 OF 2022
MALIETHA GABO................................................................................ APPELLANT
VERSUS
ADAM MTENGU................................................................................ RESPONDENT
[Appeal from the Judgment and Decree of the High Court of Tanzania
at Kigoma
(Muqeta J.)
dated the 24th day of February, 2021
in
Land Appeal Case No. 21 of 2020
RULING OF THE COURT
6th & BhJune, 2023
MUGASHA. J.A.:
This is an appeal originating from the Ward Tribunal of Buhigwe
whereby the respondent instituted a case against the appellant claiming to
be the lawful owner of parcels of land which he had inherited from his late
father, Gabo Mtengu. It was alleged by the respondent that, the appellant
who was the administrator of estate of their deceased father had included
the said parcels of land into the estate of their deceased father. The
respective land is situated within Buhigwe Ward.
As the appellant did not enter appearance before the Ward Tribunal,
the matter proceeded exparte. Thus, upon exparte proof, being satisfied
that the respondent's parcels of land were wrongly included into the estate
of the deceased, the Ward Tribunal declared the respondent as the rightful
owner of the respective land. The appellant was condemned to pay costs.
Undaunted, the appellant unsuccessfully preferred an appeal before
the District Land and Housing Tribunal of Kigoma (the Tribunal). She raised
among others, a complaint faulting the Tribunal to have declared the
respondent as the rightful owner without considering that, the respective
land was part of the estate of their deceased father and being an
administratrix, she had already distributed the land in question. The appeal
was dismissed after the Tribunal had sustained a preliminary point of
objection and the appellant was directed to revert to the Ward Tribunal to
set aside the exparte decision before invoking the remedy of an appeal.
Still aggrieved, the appellant sought the indulgence of the High Court
to have the decision of the DLHT overturned. Before the High Court among
the grounds of complaint raised in the 3rd ground is as reflected at page 60
of the record of appeal as follows:
"THA T, both the trial tribunals erred in law and in
fact by entertaining the dispute as the appellant
was sued under the wrong/improper capacity
basing on the fact that the issue at dispute is
based on the administration o f estate o f the late
Gabo Mtengu which she is the appointed
administratrix".
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Yet her appeal was dismissed and hence the current appeal before
the Court. In the Memorandum of Appeal, the appellant has fronted three
grounds of complaint as hereunder:
1. That, the Appellate Court erred in law and facts by determining
the dispute without considering that the trial tribunal had no
jurisdiction based on the fact that the dispute was purely based
on Probate and Administration o f the Estate o f the Late Gabo
Mtengu, the Appellant being the Administratrix o f the same
estate.
2. The Appellate Court erred in law and fact on failure to consider
that the trial tribunal and Appellate Court failed to consider that
the said dispute was settled in Probate and Administration Cause
No. 25/2016 by Kasuiu urban Primary Court and the Respondent
never appealed to any competent court vested with powers to
entertain Probate issues.
3. That, the trial tribunal and the Appellate Court erred in law and
facts on failure to consider that the Appellant sued under his own
capacity instead o f suing as an administratrix o f the Estates o f the
deceased.
At the hearing, the appellant who was present in person had the
services of Mr. Michael Mwangati, learned counsel and the respondent
appeared in person unrepresented.
Before the hearing commenced, upon dialogue with the Court that,
what qualifies to be a ground of appeal is what has been certified by the
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High Court as a point of law, Mr. Mwangati abandoned the first two
grounds of appeal. In arguing the sole ground of appeal it was submitted
by Mr. Mwangati that, it was not proper for the respondent to sue the
appellant in her personal capacity instead of an administratrix of the late
Gabo Mtengu who was their father. In this regard, it was argued that, the
appellant was wrongly condemned. To support his proposition, he cited to
us the cases of IBRAHIM KUSAGA VS. EMMANUEL MWETA [1986]
TLR 26, LUJUNA SHUBI BALONZI VS. REGISTERED TRUSTEES OF
CHAMA CHA MAPINDUZI [1996] TLR 203 and OMARY YUSUPH
(Legal Representative of the late Yusuph Haji vs. ALBERT MUNUO,
Civil Appeal No. 12 of 2018 (unreported). With the said submission, Mr.
Mwangati urged us to allow the appeal and nullify the proceedings and
judgments of the High Court and both tribunals. Upon being probed by the
Court, he submitted that since the appellant was the administratrix, the
respondent had no cause of action to warrant suing the respondent in her
own capacity.
On the other hand, the respondent opposed the appeal. He was of
the view that, the appellant was properly sued and as such, the decisions
of both the DLHT and the High Court are justified. Finally, he implored on
the Court to dismiss the appeal.
Having carefully considered the contending submissions, the ground
of complaint and the record before us, the question to be answered is the
propriety or otherwise of the case which was commenced by the
respondent against the appellant.
It is glaring that; the appellant was the administratrix of the estate of
the late Gabo Mtengu who happened to be the father of the parties herein.
This was pursuant to her appointment vide Probate and Administration
Cause No. 1 of 2017. Apparently, the case before the Ward Tribunal was
commenced against the appellant after she had been appointed as the
administratrix and distributed the estate to the beneficiaries of the
deceased. In this regard, could the appellant be sued in her personal
capacity? Before the High Court although the learned Judge acknowledged
that the appellant was in fact the administratrix of estate of her deceased
father, he resolved the matter in the following terms:
"I agree to the fact that while the appellant
interfered with the respondent's land upon being
granted letters of administration, indeed, she was
sued in her personal capacity. This was an
irregularity. She was supposed to be sued in her
assumed capacity as administratrix. The question
which follows is how far did the irregularity
affect the proceedings? In normal practice,
this amounts to suing a wrong party which
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vitiates the proceedings. However, this is not
always the case with proceedings in the Ward
Tribunals and District Land and Housing Tribunals.
According to section 45 o f the Land Disputes
Courts Act [Cap. 216 R.E. 2019] proceeding in
those tribunals can be vitiated by an irregularity
identified on appeal or revision only if that
irregularity occasioned a failure o fjustice.
In one o f its several findings the ward tribunal had
this to say:
"Ni kweli Adam Mtengu Mashamba ambayo anadai
kuwa yameingizwa kwenye mgawo wa mirathi
ambayo yalinunuliwa na mdai Adam Mtengu ni
kweii yapo na baraza H/ipoinuka hiiyakuta na
kuyaona".
It follows, therefore, that the Ward Tribunal was
aware that it dealt with a matter involving a claim
for wrongful inclusion o f another person's
properties in the deceased's estate. Since in the
Ward Tribunal cases are not initiated by filing any
document, it was upon the Ward Tribunal to record
the appellant as administratrix o f the deceased's
estate."
However, having considered that the respondent was not to be
blamed, the learned High Court Judge concluded that, the irregularity did
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not occasion any injustice and as such, it was curable and saved by section
45 of Cap. 216 which provides:
"No decision or order o f a Ward Tribunal or District
Land and Housing Tribunal shall be reserved or
altered on appeal or revision on account o f any
error, omission or irregularity in the proceedings
before or during the hearing or in such decision or
order on account o f the improper admission
or rejection o f any evidence unless such
errorf omission or irregularity or improper
admission or rejection o f evidence has in fact
occasioned a failure o f justice".
[Emphasis supplied].
With respect, we do not agree with the High Court Judge's
interpretation or rather construction of the cited provision and we shall give
our reasons. Before that, it is crucial to point out that, although there are
different canons of statutory interpretation, it is elementary that the
meaning of a statute must in the first instance, be sought in the language
in which the act is framed. If it is plain, the sole function of the court is to
enforce it according to its terms. See: RESOLUTE TANZANIA LIMITED
VS. COMMISSIONER GENERAL, TRA, Civil Appeal No. 125 of 2017,
COMMISSIONER GENERAL. TRA VS. ECOLAB EAST AFRICA
(TANZANIA) LIMITED, Civil Appeal No. 35 of 2020 and PAN AFRICAN
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ENERGY TANZANIA LIMITED VS. COMMISSIONER GENERAL, Civil
Appeal No. 81 of 2019, THE REPUBLIC VS. MWESIGE GEOFREY AND
ANOTHER, Criminal Appeal No. 355 of 2014, (all unreported). In the
latter case the Court held:
"Indeed, it is axiomatic that when the words o f a
statute are unambiguous, judicial inquiry is
complete. There is no need for interpolations, lest
we stray into the exclusive preserve o f the
legislature under the cloak o f overzealous
interpretation. This is all because:
Courts must presume that a legislature says in a
statute what it means and means in a statute what
is says there. CONNECTICUT NAT'L BANK i/
GERMAIN, 112 SCt. 1142, 1149(1992)".
In the light of the stated principle governing the construction of a
provision of a statute when the language used is plain, it is glaring that
section 45 plainly sets out the curable irregularities on improper admission
or rejection of any evidence which do not have the effect of occasioning a
failure of justice. The legislature did not intend any stretch to cover
omissions or irregularities vitiating the trial proceedings such as, instituting
a claim against a wrong party like it is the case at hand. We are fortified in
that regard because suing a wrong party has serious consequences which
include rendering the trial vitiated or subjecting execution to untold
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hurdles. Indeed, it is a matter which must be determined at the earliest. In
the premises, since the learned High Court Judge was satisfied that, the
claim initiated against the appellant had the effect of vitiating the trial
proceedings, he ought to have acted promptly and the matter would not
have reached this far.
On our part, in the event the appellant was the administratrix, it was
irregular for the respondent to initiate a case against the appellant in her
own capacity instead of pursuing action against her as the administratrix of
the late Gabo Mtengu. We are fortified in that regard because the only
person who can act as a representative of the deceased, is the grantee of
the letters of administration as provided under the provisions of section 71
of the Probate and Administration of Estate Act [CAP 352 R.E.2002] which
stipulates as follows:
"71. After any grant o f probate or letters o f
administration; no person other than the person to
whom the same shall have been granted shall have
power to sue or prosecute any suit, or otherwise
act as representative o f the deceased, until such
probate or letters o f administration shall have been
revoked or annulled".
[See also the case of OMARY YUSUPH (Legal Representative of the
late Yusuph Haji vs. ALBERT MUNUO (supra) whereby, the Court had
to nullify judgments and proceedings of the courts below because the wife
of the deceased who was granted the letters of administration had initiated
a case in her own capacity on behalf of her deceased husband.
In view of what we have demonstrated, the appellant who was the
administrator was wrongly sued by the respondent in an action involving
the estate of her deceased father, the proceedings before both tribunals
were vitiated and so was the appeal before the High Court. Thus, the
resulting judgments cannot be spared and as such, we nullify the entire
proceedings and judgments of the two tribunals and the High Court.
Consequently, the appeal is merited and it is allowed.
DATED at KIGOMA this 7th day of June, 2023.
S. E. A. MUGASHA
JUSTICE OF APPEAL
B. M. A. SEHEL
JUSTICE OF APPEAL
A. M. MWAMPASHI
JUSTICE OF APPEAL
The Ruling delivered this 8th day of June, 2023 in the presence of Mr.
Michael Mwangati, learned counsel for the Appellant, and Respondent
appeared in person, js hereby certified as a true copy of the original.
D. R. LYIMO
\S|PUTY REGISTRAR
)»OOURT OF APPEAL
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