EZEKIEL KIMOLO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA

AT BABATI LAND APPEAL NO. 14322 OF 2024 (Originating from Land Application No. 40 of 2022, District Land and Housing Tribunal for Kiteto) EZEKIEL KIMOLO.....................................................................1st APPELLANT MOHAMED IDDI......................................................................2nd APPELLANT

VERSUS THOMAS SEBASTIAN NJAMA.................................................1st RESPONDENT LADISLAUS ATHANAS MASSAWE..........................................2nd RESPONDENT EMILY AUGUSTINO KANGATY...............................................3rd RESPONDENT DEOGRATIUS ATHANAS MASSAWE.......................................4™ RESPONDENT

JUDGMENT 14th August & 6th November, 2024 KAMUZORA, J. The respondents herein instituted a suit against the appellants herein before the District Land and Housing Tribunal for Kiteto (hereinafter referred to as the trial tribunal), for the recovery of land measuring about 150 acres (the suit land) situated at Napirikunya (Lengashu) hamlet, Partimbo ward, Page 1 of 19 within Kiteto district in Manyara region. According to the respondents, they purchased the suit land from Maiba Sakana in 2007 and in 2022, the 2nd appellant trespassed into the suit land and claimed to be the owner. That, sometimes later, the 1st appellant claimed to have purchased the suit land from the 2nd appellant. The respondents claimed joint ownership of the suit land which was being used by the 1st respondent on agreement from the other respondents. In their joint written statement of defence, the appellants disputed the respondents' claim. They claimed that the suit land is the property of 2nd appellant having been allocated the same by Kimana village in 2007 and sold the same to the 1st appellant. After hearing the parties, the trial tribunal declared the respondents as lawful owners of the suit land. The appellants were displeased with the trial tribunal's decision and preferred this appeal on 8 grounds of appeal but during submission, the 1st and 3rd grounds were argued jointly as well as the 2nd and 4th grounds and the 6th and 7th grounds. The 5th and 8th grounds were argued separately. From the submission, the grounds of appeal are reduced into 5 grounds as follows: Page 2 of 19 1. That, the honourable trial chairman erred in law and fact for failure to consider that exhibit PI did not prove ownership o f the suit land.

2. That, the trial tribunal erred in law and in fact by failure to properly analyze the evidence on record.

3. That, the trial tribunal failed to interpret the Village Land Act on who may be allocated land and how the village land is acquired and disposed.

4. That the proceedings o f the trial tribunal are tainted with illegalities and irregularities.

5. That, the trial tribunal erred in law and in fact for disregarding the evidence and exhibits tendered by the appellants. When the appeal was called for hearing, Mr. Pastor Kong'oke, learned advocate appeared for the appellants while Mr. Abdallah Kilobwa, learned advocate represented the respondents. In his submission in support of the first ground of appeal, Mr. Kong'oke submitted that the tribunal chairman erred in basing his decision on exhibit PI which did not prove ownership and which was not read for parties to understand its contents. That, the said exhibit shows thatc the 2nd Appellant surrendered land measuring 150 acres located at Napilikunya hamlet before Kimana village by the village council it does not mention the boundaries of Page 3 of 19 the land. He argued that, since the said exhibit does not show the boundaries or how the respondents came into ownership of that land, it does not prove ownership of land to the respondents. He was of the view that, the surrender of land by 2nd appellant did not give right of ownership to others. That, there was no strong evidence proving ownership to the respondents. The appellants' counsel further submitted that, the evidence of PW3 was supported by exhibits D2 and D3 tendered by the 1st appellant proving that he purchased 120 acres of land from Mohamed Idd located in Kimana village at Lengashu hamlet. That, exhibit D1 shows

that the land was surveyed with coordinates and sketch map thus, it was wrong for the chairman to rely on exhibit PI as proof for the respondents' ownership. On the 2nd ground, the learned advocate submitted that the trial chairman failed to evaluate the evidence properly thus arrived at a wrong decision. He argued that, the issue before the trial tribunal was who is the lawful owner of the suit land. That, ownership is proved by evidence showing how the person acquired the land. He pointed out that, the village land can be owned either by inheriting the land from parents, by being allocated by the village or by purchase. That, since the respondents claimed to have Page 4 of 19 purchased the suit land, the trial tribunal ought to have assessed if the purchase was legal by assessing the legality of the purchase contract namely; exhibit P4. He submitted that, since the respondents were not residents of Kimana village therefore, as per section 30(2) (a) of the Village Land Act, [Cap 114 R.E 2019], (hereinafter referred to as the VLA), the purchase of the land was to be approved by the village council. That, exhibit PE4 was stamped by the chairman of Mbigiri village while the land claimed is located at Kimana village. He argued that, Mbigiri village chairman had no powers to authorize sale of the land in the village which he had no jurisdiction. He was of the view that, the sale

was illegal for not being authorized by Kimana village where the land in question is located. To buttress his arguments, the learned advocate referred the case of Metusela Paulo Nyagwasa Vs Christopher Mbote Nyirabu, [1985] TLR 103. The appellants' counsel further submitted that, exhibit P4 which is the sale contract was recorded in two sides of the paper while they are two different documents. That, while one side of the document shows that the buyer is Joshua Loilale, not indicating if he was buying on behalf of others and no boundaries of the land the second side lists the respondents as buyers. That, in their evidence, the respondents never mentioned if Joshua Page 5 of 19 Loilale was authorized to buy land on their behalf. The appellants' counsel was of the view that, the exhibit is contradictory thus, it cannot be regarded as valid sale contract. On the 3rd ground Mr. Kong'oke submitted that, the chairman failed to properly interpret the VLA on who may be allocated village land, how the village land is acquired and disposed. He argued that, section 22 (1) of the VLA lists people who can own the village land as; family members, clan members or organization/association. He submitted that, the respondents were not among the list of people mentioned but they claim to own land jointly contrary to the law and without a special court's permit. He insisted that, the procedures in

buying village land under section 30(2)(a) of the VLA were contravened. On the 4th ground, Mr. Kong'oke submitted that, the trial chairman created his own evidence and that the proceedings before the trial tribunal are tainted with irregularities and illegalities. He argued that, Rule 12 (1) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations of 2003 (hereinafter referred to as the Regulations), requires the chairman of the tribunal to read the claim to the parties before hearing could commence. That, such requirement was not complied with by the trial Page 6 of 19 chairman. He added that, the trial chairman failed to record all evidence of the appellant and cross examination. He pointed out that, PW1 was asked in court if he was in love with her husband DW2 and she clearly stated that she hated him but such response was not recorded by the chairman. That, PW4 was asked and admitted that the purchase contract had two papers, but such response was not recorded by the chairman. That, there was a question regarding power of attorney of Joshua Loilale authorizing him to buy land on behalf of the respondents, but the answer was not recorded. That, at page 35 to 36 of the typed proceedings the chairman recorded that the respondents were present but that was not true because, only advocate Ayubu Suday appeared holding brief for Mr. Mosses Basila, advocate

for the respondents but his attendance was not recorded. That, the records indicated that the witness was cross examined but, it does not indicate the name of the person who cross examined that witness. That, at page 39 of the proceedings it is recorded that the appellants' advocate was present on the judgment date but he was not present. He insisted that, the chairman was not recording other matters and he was making his own facts which were not true. He referred page 8 and 9 of the judgment where the chairman referred exhibit PI and claimed that it was executed before 2014 when the 1st appellant was selling land to the 2nd appellant while that fact which is not in record. That, the judgment also shows that the 1st appellant claimed to have been allocated land by the village but such fact was not in the 1st appellant's evidence. The appellants' counsel agreed that he was aware of the position that, the records of the court cannot be challenged but was of the firm view that, the integrity of the proceedings of the trial tribunal is questionable and full of doubts hence, the same be quashed and set aside. On the 5th ground, the learned advocate for the appellants submitted that, the tribunal chairman erred for failure to consider the evidence and exhibits tendered by the appellants. He argued that, Exhibits Dl, D2 and D3 were strong evidence proving that the sale contract for

the 1st appellant was approved by the village council. That, the village council allowed him to survey the land and the same was surveyed by the district surveyor save that he was not issued with customary right of occupancy due to this dispute. He was of the view that, the appellants' evidence was strong and ought to be so considered by the trial tribunal. In concluding the counsel for the appellants prayed for the appeal to be allowed with costs. Page 8 of 19 I In his reply to the 1st ground, Mr. Kilobwa submitted that, exhibit PI was correct for it was also signed by the 2nd appellant. That, the 2nd appellant was aware of the land referred in that document thus, the argument that the said exhibit contained no boundaries is baseless. He added that, the tribunal's judgement did not rely only on exhibit PI for it also considered other exhibits including the sale contracts, the application and the evidence in totality. That, in their evidence the respondents clearly mentioned the boundaries of the suit land and they also proved that they purchased the suit land from Maiba Sakai who also claimed allocation from the village council. To him, the argument that the respondents did not prove source of ownership, is baseless. In reply to the 2nd ground, Mr. Kilobwa conceded that, agreement between the respondents and Maiba Sakana shows that it was verified by the leaders of Mbigiri

village and not Kimana village. He however pointed out that Kimana village was created from Mbigiri village thus, at the time the agreement was executed, all official activities of Kimana village were being conducted at Mbigiri village. On the argument that there was no power of attorney, Mr. Kilobwa submitted that, the contract has two parts; the first part was executed on Page 9 of 19 01/05/2007 showing that the actual contract will be entered after survey and upon payment of the second instalment and the second part was executed on 20/05/2007 showing that the actual contact was executed and the boundaries and size of the land were indicated. He added that, it was explained in the contract that Joshua Loilole who first signed the contract was acting on behalf of the respondents. To him, the argument that Joshua had no power of attorney is baseless because the respondents have no any dispute with Joshua Loilole. On the 3rd ground, Mr. Kilobwa submitted that what was referred by the appellants' advocate is the procedure for allocating village land to the villagers which has nothing to do with the agreement by individual villagers or a villager and any other person. He pointed out that, the VLA does not prohibit the villagers from selling the land which they individually own. That, since there is no dispute that the seller was allocated land by the village, he was not prohibited

from selling the land to any person of his choice. On the 4th ground Mr. Kilobwa submitted that, there is no evidence to justify the allegation that the chairman did not record facts raised by any of the parties. He argued that, the proceedings are sensitive and he believed that what is in the proceedings is what transpired before the tribunal. He Page 10 of 19 was of the view that, if the court will allow each party to claim otherwise, it will result into questioning the integrity of the proceedings of the court something that can cause chaos. On the argument based on the proceedings at pages 35 and 36, the respondents' counsel submitted that, the appellants' counsel failed to demonstrate on how failure to record if each of the respondents cross examined the witness affected the rights of the appellants. On the argument based on the proceedings at page 39, he submitted that indicating that the appellants' counsel was not in attendance was a typing error which does not go to the root of the rights of the parties. On the argument that the application was not read to parties, the respondents' counsel submitted that, since both parties were given chance to testify and submit their exhibits, the omission to read the application did not affect the rights of the parties in hearing and composing the judgment. On the 5th ground Mr. Kilobwa submitted that, the trial tribunal

was satisfied that the respondents' evidence was stronger as opposed to the appellants' evidence. That, the sale agreement between the appellants was not justified for the 2nd appellant had already surrendered the suit land to Page 11 of 19 the respondents therefore, not proper for him to sale the land which was not in his ownership. He urged this court to dismiss the appeal with costs. In rejoinder Mr. Kong'oke essentially reiterated his submission in chief. Having gone through the parties' rival submissions and the record of the trial tribunal, there are three issues for determination. The first issue is, whether the trial tribunal properly evaluated and considered the evidence on record, this essentially is the complaint in the 1st, 2nd and 5th grounds of appeal, the 2nd issue is whether the learned trial chairperson correctly interpreted the VLA which is essentially the complaint in the 3rd ground of appeal. The 3rd issue is whether the proceedings of the trial tribunal are tainted with illegalities and irregularities which essentially is the complaint on the 4th ground. Starting with 3rd issue on the illegalities of the proceedings, it was argued that there was non-compliance with Regulation 12 (1)(2)(3) of the Regulations for failure to read the claim to the parties before hearing had commenced. I have keenly gone through the record and indeed, the learned trial

chairperson did not comply with Regulation 12 (1)(2)(3) of the Regulations which requires the trial chairperson to read the substance of the claim to the respondent before issues are framed. However, I find such Page 12 of 19 omission in the circumstance of this case did not vitiate the trial. I subscribe to the holding of this court in Land Appeal No. 7226 of 2024, Zakayo Tluway Vs Yuda Awari at Manyara that there are circumstances under which the omission to read the claim does not vitiate the trial. In the matter at hand, the record shows that, both the appellants and the respondents were ably represented by learned advocates. They both exchanged documents filed for the case and filed defence accordingly. The advocates being officers of the court were also bound to remind the trial tribunal of that procedure. Besides, nothing was submitted by the appellants' counsel to justify how the appellants were prejudiced by such omission. The record shows that they were served with the claim and through their advocate, the appellants filed their joint written statement in which, they disputed the respondents' claim showing that the appellants were aware of the respondents' claim before hearing had commenced. They also testified before the trial tribunal disputing the claim and presented two more witnesses to support their defence. In that regard, I do not see how the omission to read

the claim affected the trial. On the argument based on the inconsistencies in recording the proceedings by the learned trial chairperson, this court finds that the same Page 13 of 19 aims at impeaching the record but it is settled position of the law that tribunal/court's record is a serious document which cannot be impeached lightly. Again, the claim that the tribunal chairperson recorded his own facts which never transpired is a serious allegation which touches the ethical issues and code of conduct for the tribunal chairpersons. That needs proof and not mere allegations therefore, I find no merit on the 4th ground of appeal. On the 2nd issue that there was non-compliance of the law in disposing the village land as required by VLA, I find such argument baseless. The respondents claimed to have purchased the suit land from PW3 thus, the same was not a village land. Therefore, the provision of VLA was related to the disposal of village land was inapplicable in the circumstance of the matter at hand. The trial tribunal was only required to determine whether PW3 had good tittle to pass to the respondents. I therefore find no merit on the 3rd ground of appeal. Reverting to the 1st issue on the evaluation and consideration of evidence, I have carefully gone through the judgment of the trial tribunal. I do not agree with the appellants' argument that there was no evaluation

or consideration of evidence in totality. From page 6 to 11 of the typed Page 14 of 19 judgment, the tribunal chairman vividly evaluated and tested weight of evidence of each witness and exhibits from both sides before concluding that the respondents' evidence was stronger as compared to that of the appellants. I do not agree with the appellants' argument that the trial tribunal based its decision only on exhibit PI for the judgment shows clearly that apart from exhibit PI other exhibits and evidence were also considered. Thus, the arguments that exhibit PI did not indicate boundaries or prove ownership, are baseless for it was not the only evidence relied upon. Exhibit PI shows that the 2nd appellant promised to vacate the suit land meaning that he admitted to have no title over the same. The said exhibit was considered together with other evidence and exhibits which in totality, convinced the trial tribunal to conclude that the respondents proved ownership over the suit land. In its analysis, the trial tribunal also captured PW4's evidence showing that the suit land was purchased from PW3 who also supported to that fact. The purchase price and boundaries of the suit land were well shown in the sale agreement (exhibit P4). In his evidence, PW3 claimed to have been allocated the suit land by the village council in 2007. Although PW3 testified that he sold the suit land to 2nd

respondent, he mentioned the sold land as Page 15 of 19 150 acres, conceded to the existence of sale agreement and never disputed to have signed the sale contract for the respondents (exhibit P4). This suggests that, there was no dispute that the respondents purchased the suit land from PW3. It was contended by the appellants that the sale agreement (exhibit P4) contained serious contradiction. Looking at the said agreement, it appears that the agreement was initiated on 01/05/2007 when Joshua Loilole signed the agreement and paid the first instalment and concluded on 20/05/2007 when the respondents signed the agreement and paid the remained purchase amount. The agreement signed on 01/05/2007 is very clear indicating that part payment was made pending survey when the actual agreement was to be executed. The agreement signed on 20/05/2007 referred the prior agreement signed on 01/05/2007 indicating that such agreement was made on behalf of the respondents. PW5 was the village chairman who witnessed the said agreement and he supported the fact that PW3 sold the suit land to the respondents. Since there is no claim by Joshua Loilole to the contrary, this court supports the tribunal's arguments based on exhibit P4. Page 16 of 19 PW3 testified that he acquired the suit land after being allocated by the same by the village council. Although he tendered no document to that effect, the

fact that he was allocated land by the village council was never disputed by the village chairman who testified before the trial tribunal as PW5. The contention that he tendered no allocation document is baseless since even the defence evidence reveals that allocation documents were maintained at the village office. PW5, being the village chairman, was in a better position to negate the allocation to PW3 if not was not registered at the village office. On the other hand, the 1st appellant referred the suit land as 35 acres which he purchased from the 2nd respondent. The sale agreements were admitted as exhibits D2 and D3. The 2nd appellant claimed that he acquired the suit land in 2007 when was allocated 20 acres by the village council and purchased 15 acres from one Omari. That, he sold 20 acres to the 1st appellant in 2012 and 15 acres in 2020 and allowed him to proceed with survey process. The evidence that the 2nd appellant sold the land to the 1st appellant was supported by DW3 and DW4, the hamlet chairman who witnessed the sale. Exhibits D2 and D3 show that the first sale agreement between the 1st appellant and the 2nd appellant was executed in 2014 for 20 Page 17 of 19 acres and the second agreement was executed in 2020 for 15 acres. Exhibit D2 does not indicate the location of the land sold while exhibit D3 indicates that the land was located at Napilikunya hamlet

within Kimana village. Exhibit D1 shows that the 1st appellant initiated the survey process in 2022 and beacons were fixed on the land as evidenced by exhibit D4. However, the fact the he initiated survey process is not in itself a conclusion that he is the legal owner of the suit land. There is a need for evidence proving how the 1st appellant legally acquired the land before he started processing for survey. From the appellants' defence, no evidence was submitted to provs that the 2nd appellant was allocated 20 acres by the village council or purchased 15 acres from Omari. Exhibit D2 which refers 20 acres does not even indicate the location of the land. The appellants neither tendered purchase agreement for 15 acres nor paraded one Omari to verify the fact that the 2nd appellant purchased land from him. Therefore, upon re-appraisal of the evidence on record, I have arrived to the same conclusion that the respondents' evidence was stronger as opposed to the appellant's evidence. In that regard, I find no merits in the 1st, 2nd and 5th grounds of appeal. Page 18 of 19 l Basing on the above discussion, I find the appeal to have no merits and dismiss it with costs. The judgment of the trial tribunal is hereby upheld. DATED at BABATI this 6th day of November, 2024. D. C. KAMUZORA

JUDGE Page 19 of 19