abas samwel vs julietha samwel 2023 tzhc 16657 8 february 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA {LAND DIVISION)

IN THE DISTRICT REGISTRY OF KIGOMA

A T K IG O M A

APPELLATE JURISDICTION LAND APPEAL NO 01 OF 2022 (Arising from Land Appeal No. 53 of 2021 of the District Land and Housing Tribunal for Kigoma and original Land Application No. 07 of 2020 of Kalela Ward Tribunal) ABAS SAMWEL---------------------------------------------------APPLICANT

VERS U S JULIETHA SAMWEL--------------------------------------------RESPONDENT

JUD G EM E N T 06/10/2022 & 08/02/2023 MANYANDA, J. Abbas Samwel, the Appellant, is not happy with a judgment of the District Land and Housing Tribunal for Kigoma, hereafter referred to as "the District Land and Housing Tribunal" in its appellate jurisdiction dated 19/11/2021 w h ic h reversed th e decision of Kalela Ward Tribunal that favoured him. Before th e Kalela W a rd Tribunal, th e Respondent unsuccessfully sued the Appellant for a piece of Land (Shamba) measuring five (5) acres. Page 1 oflO ~/ Following her appeal, th e District Land an d Housing Tribunal reversed the trial Tribunal's decision and favoured the Respondent by declaring her a lawful owner of the suit land. Hence the instant appeal. It is premised on four grounds namely: 1. That the Appellate Tribunal erred in law and facts in holding that involvement of the Village Executive Officer did not occasion injustice to the petties, an act which amounts to improper coram of the Ward Tribunal.

2. That the Appellate Tribunal erred in law and facts for wrongly evaluating the evidence on record hence coming to its own decision.

3. That the Appellate Tribunal erred in law and facts for creating its own evidence that Samwel Bobewe agreed to have hired the farm in dispute/ evidence which is not reflected in the record.

4. That the Appellate Tribunal erred in law and facts by allowing the appeal while the Appellant proved the case at the balance ofprobabilities against the Respondent Hearing of the appeal was conducted by way of written submissions. While the Appellants submissions were drawn and Page 2 of 10,J,A. filed by M r. Eliutha Kivyiro, le a r n e d Advocate, those for th e Respondents were drawn and filed by the Respondent herself. Submitting in support of ground one, Mr. Kivyiro for the Appellant, a rg ue d tha t m e m be rs of village council a re no t qualified to be nominated as members of the Ward Tribunal per the provisions of section S(l)(b) of the Ward Tribunal Act, No. 7 of 1985. That, at last page of the trial Tribunal's judgment, it is clearly indicated that the Village Executive Officer acted as a Secretary of the Ward Tribunal, which is not proper. The Counsel added that although the Village Executive Officer is a Secretary of the Ward Tribunal his duty is to record the proceedings, but n o t to participate in its decision. He was of the views that participation o f the Village E x e c u t iv e Officer vitiated th e t r ia l Tribunal's judgment. In respect of ground two, M r. Kivyiro basically reiterated what is stated in the complaint that the first appellate Tribunal did not properly re-evaluate the evidence, he invited this Court, been a second Appellate Court to

re-evaluate the same. He relied on the authorities in the cases of Registered Trustees of Joy in Haversty vs Hamza K. Sungura, Civil Appeal No. 149 of 2017 (unreported) where it was held that a general statement P;:i i:, p 3 nf 1 n ,J, . . . , that evidence was re-evaluated without such re-evaluation been vivid on record is an abrogation of the duty of a first appellate court. Also, in Hassan Mzee Mfaume vs. Republic [1981] TLR 167 where it was held that where a first appellant court fails to re-evaluate the evidence, th e se c o n d appellate court may re - evaluate the same. According to the counsel a finding by the first appellate court that Samwel Bobewe was a tenant on the suit land was a result of improper evaluation of evidence. T hen , th e Counsel concluded in ground four th a t th e Appellant proved h is case on th e balance of probabilities as required in Civil Cases. He relied on the case of Hemed Said Vs Mohamed Mbilu [1 9 8 4 ] T LR 113 w h ere it was h e ld that evidence in civil cases cannot tie, one side must be heavier than th e o th e r. In reply, the Respondent opposed the complaint in ground one arguing that mere presence of the Village Executive Officer occasioned no injustices to the parties. It was her views that the Appellant's counsel failed to point out the prejudice occasioned o th e r th a n imaginary one s. She arg ue d fu rth e r th a t a

Ward Page 4 of 10~ / Tribunal can regulate its own procedures under section 15 of Ward Tribunals Act, [Cap. 206 R. E. 2019], and section 13(1) and (3) of the Land Disputes Courts Act, [Cap. 216 R. E. 2019]. In respect of ground two the Respondent submitted that the first Appellate Tribunal thoroughly re-evaluated the evidence and made correct findings that the Respondent's father was a lessee of the suit land. She concluded that the Appellant failed to prove his case. I will start with ground one. The issue here is whether the Village E x e c u t iv e Officer (V E O ) participated in th e decision m a k in g , if in affirmative, th e n w h e th e r suc h participation occasioned injustice to the parties. The Counsel for the Appellant pointed that at the last page of the judgment of the trial Tribunal, the Village Executive Officer participated in the proceedings. The District Land and Housing Tribunal noted su c h participation an d r u le d that suc h participation was not prejudicial, hence curable under section 45 of the Land Disputes Courts Act. My perusal of the coram of the trial Tribunal on the date of delivery of ju d g m e n t dated 26/02/2021 mentions th e Village P;:ipp i; nf 10 ,{. A. 1 E x e c u t iv e Officer as a se c r e ta r y to th e Tribunal. In my understanding of the law a secretary is the one who records the proceeding of the Ward Tribunal. This is the

Village Executive Officer. His presence in the Tribunal was by virtue of his duty as a "rapporteur" to the Ward Tribunal. He had no right to vote nor did he vote. In my view his appearance in the coram, being part of the Tribunal officials, has no adverse effects to the parties because that alone does not mean he/she participated in making the decision complained of, but he just recorded the same. I am fortified b y th e decision in th e case of G ib so n Kalishanga Vs Mariam Yothan, Misc. Land Appeal No. 32 of 2021 (unreported) where this court, Hon. Mlacha, J said: "It is obvious that the Secretary of the Ward Tribunal is Just an official of the Council attached to the Tribunal for record keeping" I find that the complaint in the first ground has no merit. Grounds two, three an d four a ll co nce rn issues of evidence. While ground two complaint is that the District Land and Housing Tribunal failed to re-evaluate properly the evidence, ground three Page 6 of 10~ 1 complaint is that the District Land and Housing Tribunal created it s o w n e v id e n c e not borne out by the record. Ground four complaint is that the decision of the District Land and Housing Tribunal was not backed up by evidence. My perusal of th e judgment of the District Land an d Housing Tribunal is, in my opinion, exhaustive. It evaluated the evidence thoroughly and came at a correct decision as I

will demonstrate hereunder. The evidence by the Respondent who filed the complaint before the trial Tribunal was brief and straight forward that the Appellant had trespassed into her shamba and started to destroy crops. She testified that the shamba belonged to her husband and the Appellant's father was an invitee. She stated as follows: ''Swa/i: Hilo shamba ana miaka gani yuko anakata migazi au ni mwaka huu? Jibu: Zamani baba yake alikuwa ananipa pesa ya kukodi sasa wakati nuu hanipl nimekuja kulala/amika. , ✓ Literally means in the past, his father used to pay rent but now no rent is paid, hence, the complaint. P;:i i; p 7 nf10 ~, On his side the Appellant stated as follows: ''Mwaka 2002 mwezi wa 9 ni/ipotoka mikoani nikakuta baba na mama wanalima hilo shamba.... niksrudi mikoanl mwaka 2003 nikakuta wanaende/eaa hadi 2017 baada ya hapo mzee akapata otemsvu: Literally means in 2002 when he returned from "th e regions" where he lived, found his parents using the farm, he left again in 2003, then he came back .... up to 2017, his parents were still cultivating the farm until when his father got disability. As it can be seen, the evidence of the Appellant's father leasing th e farm was established by the Respondent. The Appellant's evidence is that he found his parents cultivating it. He did not know whether they cultivated it as their own farm or leased it. In other words, the

Appellant knew nothing about his parent's status in cultivating the farm. The evidence of the Respondent that the Appellant's father hired the farm is corroborated by SM 1 one Blalagilije Dyitege who stated that he witnessed th e a g re e m e n t betw een the Respondent's husband and the Appellant's father to hire the farm at Tshs. 100,000/= to be paid 10,000/ each year. Paee8of10 ~' That Appellant's father Samwel Bobewe used to p a y th e r e n t u n t il h e d ie d . The Appellant who took over the farm refused to pay rent on grounds that the farm belonged to his late father Samwel Bobewe. However, as I have said above, the Appellant had no tangible evidence on how his father obtained the farm. The District Land and Housing Tribunal, after analysing the evidence stated as follows: "Ushahidi wa Samwel Bobewe unadhihirisha wazi kwamba eneo hi/o alikodishiwa hakupewa moja kwa moja ndiyo maana alihama mwaka 2017 kwenda Janda na kuliacha shamba hilo/~ Literally means, the evidence of Samwel Bobewe is clear that the suit land was leased to him, not given, that is why he shifts to Janda in 2017. In my considered v ie w , th e District Land and Housing Tribunal was analysing the already tendered evidence before the trial Tribunal. It did not invent evidence out of the recorded one. As far as the evidence is concerned, the fact that the Appellant's father h ire d th e s u it land as

testified by th e Respondent and SMl, is, in my views, heavier than that of the P;:i1?F>9nf10J,..u,. , Appellant because the testimony of witnesses of the Appellant including Samwel Bobewe was basically to the effect that the respondent was given the farm to cultivate, however the same did not mean he was given permanent ownership thereof. It is from this re-appraisal of the evidence that I find g ro un d s 2, 3, and 4, as I d id for ground one, are no ne m e r it o r io u s . In the upshot, for reasons stated above, I find the entire a p p e a l n o n - m e r it o r io u s . Consequently, I do h e re by dismiss this a pp ea l in it s entirety. The Appellant shall pay the costs of this appeal. Order accordingly. Date at Kigoma this 02nd day of February, 2023. ~~ F~NDA

JUDGE Page 10 of 10