abraham y bakari vs agnes justus mwita 2018 tzhclandd 505 3 august 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPEAL NO. 108 OF 2017 {From the Decision of the District Land and Housing Tribunal of Kibaha in Land case Appeal No. 129 of 2016 originating from Ward Tribunal of Fukayosi in Application No. 186 of 2016) ABRAHAM Y. BAKARI...................................... APPELLANT VERSUS AGNES JUSTUS MWITA................................ RESPONDENT Date of last order: 01/06/2018 Date of Judgment: 03/08/2018 JUDGMENT MGONYA, J. This appeal originates from the decision of the Ward Tribunal of Fukayosi in Land Complaint No. 186/2016 delivered on 20th day of July, 2016 in which the trial Tribunal declared the Respondent as the lawful owner of the land in dispute. The Appellant herein being aggrieved by the said decision, appealed to the Kibaha District Land and Housing Tribunal, Coast Region on Land Appeal No. 129 of 2016 where the first Appellate court upheld the decision of the Ward Tribunal that the Respondent herein is the lawful owner of the suit land measured two acres located at Fukayosi Village. The Appellant herein dissatisfied with that decision, appealed to this court on the following grounds: 1. That, the District Land and Housing Tribunal erred in law and facts entertaining and deciding upon extraneous matter which were not pleaded by the parties; 2. That, the District Land and Housing Tribunal erred in law and fact in calling and admitting new evidence against the Appellant; 3. That, the District Land and Housing Tribunal erred in law and in facts in questioning the legality of the sale agreement; 4. That, the District Land and Housing Tribunal erred in law and in facts in failing to acknowledge the facts that the Appellant was the 1st to purchase, to survey and obtain a documentary title which is better title than the Respondent's; 5. That, the District Land and Housing Tribunal erred in law and in facts in holding that the Appellant had tendered forged documents without expert proof; and 6. That, the District Land and Housing Tribunal erred in law and in facts in ordering that the Appellant should surrender two acres to the Respondent without legaljustification. The Appellant appeared in person unrepresented whereas the Respondent was represented by Mr. Kiondo Advocate. With the leave of the court, the appeal was disposed of by way of written submissions. Having gone through the grounds of Appeal raised and the entire record of this case, as well as having considered the rival submissions of both parties, the issue is whether the first appellate court properly evaluated the evidence on record before arriving at its decision. Before determining other grounds of appeal, I think it is prudent first to have brief history of this case. The Appellant lodged a complaint to the Ward Tribunal of Fukayosi claiming that the Respondent trespassed to his suit land by estimation of two acres. The Respondent alleged to purchase the suit land measured 30 acres to three different persons; PROTEST OSCA NDAYONGA, MTEBE VENANCE MAJIGO and VICENT BIEGELA MASHINJI. The Respondent obtained the customary right of occupancy on 2016 from Bagamoyo District Council. The Appellant alleged to purchase the land measured 5 acres including the suit land from one SHABANI HERI KURUNGE on 2015 and obtained the Customary Right of Occupancy on 2015 from Bagamoyo Council. Appellant called one witness who was the one prepared the said documents in respect of the disputed land, and the Respondent called two witnesses who were the farm caretakers. In discussing the grounds of Appeal, the Appellant generally strongly submitted that he is the lawful owner of the suit land measured two acres located at Fukayosi Village and the Chairman did not go to the reasons of appeal but proceeds with other issues which were not pleaded. Further submitted that the Chairman during appeal decided to admit new evidence, an extra evidence which was not fair to the Appellant. On the other side, Appellant submitted that the District Tribunal directed itself on the Sale Agreement and took it into consideration during Appeal, something that was not right. The Appellant further submitted that, according to the evidence he was the first one to get a good title over the suit land. However, the Hon. Chairman decided to declare the documentary evidence he tendered forged without calling an expert to prove the same as the person who came to testified was the one prepared the said documents in respect of the disputed land. Finally the Appellant submitted that, the act of Hon. Chairman to raise/frame absolutely new issue of two acres which was not at all in the complaint nor on previous judgement, was not proper in law. Responding on the ground of Appeal, Advocate Kionda for the Respondent contended that the Appeal is hopelessly since the District Land and Housing Tribunal delivered its judgement according to the law and nothing was erred by Chairman. The Respondent's referred the court to Section 34 (1) (a) and ( c) of the Land Disputes Courts Act, Cap 216 where in sub (a), the District Land and Housing Tribunal is empowered to look into matters from the lower Tribunal. On the issue of new evidence, the Respondent's Counsel averred that the Chairman was right to call additional evidence according to Section 34 (1) (b) of Cap 216 where the District Land and Housing Tribunal in its hearing can call additional evidence so far both parties were available to ask questions. On the issue of existing of two Sale Agreements, the Counsel for the Respondent submitted that there was no error for the Chairman to question the two Sale Agreement as to which among them was correct as the two documents differ to the effect that, one stated that the land in dispute was three acres and it has the Village Chairman's signature while the other one was 5 acres without signature. Hence the Chairman was right as was acting on line with Provision of Section 34 (1) (a) and (b) of Cap 216. On the 4th ground, the Respondent submitted that at page 1 - 2 of the Judgement, the same clearly indicates that the Respondent bought a suit land on 25/10/2014 and the Appellant bought the same in 2015 but was the one who surveyed the land first; the fact that didn't give the Appellant the right to be the rightful owner. On the issue of forged documents; it is the Respondent's concern that the same does not need an expert examination as it suffice that the relevant witness who prepared the documents denied to prepare the 5 acres Agreement from the Appellant and recognised and admitted that of the 3 acres Agreement belonged to the Respondent hence that alone proves the Sale Agreement of 5 acres be forged. Looking at the Judgement on page 11 at paragraph 2, and page 8 last paragraph as well as page 9 the 2nd and the 3rd paragraphs the same shows that the Village Chairman whom was said to witness the 5 acres sale denied the said allegation. On the last ground, the Respondent submitted that the issue of the two acres came from the fact that the Appellant added 2 acres to make 5 acres. Hence the Respondent prayed that the Appeal be dismissed for lack of merits. Having considered the rival submissions of both parties, I will now determine the grounds of Appeal as herein below: It is trite law that where an appeal is heavily based on the weight of evidence it is the trial court which is better placed to assess the credibility of witnesses and evaluation of evidence. This principle was enunciated in a number of decision including ALI ABDALLAH RAJABU V; SAADA ABDALLAH RAJABU AND OTHERS [1994] TLR132 AND OMAR AHMED V. R [1983] TLR 52f to mention a few. In the case of ALI ABDALLAH RAJAB V. SAADA ABDALLAH RAJABU AND OTHERS (supra) it was held that: "Where the decision of a court is wholly based on the credibility of the witnesses, then it is the trial court which is better placed to assess, their credibility than an appellate court which merely reads the transcripts of the record" In the case of Omar Ahmed v. R (supra) it was held: "The trial court's finding as to credibility of witnesses is usually binding on an appeal court unless there are circumstances on the record which call for a reassessment of their credibility". Having gone through the submissions and record there is no doubt that the District Land and Housing Tribunal reached a fair decision. According to the record the Appellant brought the suit land on 2015 and the Respondent bought the suit land on 2014. The record further revealed that the witnesses whom were called to testified, testified the same line with the Respondent especially the Village Chairman of Fukayosi who agreed to be one of the leaders who witnessed the sale of the land to the Appellant, as the Appellant purchased three acres and not five acres, and also, show the Tribunal the copy that remain in their office that it was three acres. Therefore it is from what parties have been testified before the Fukayosi Ward Tribunal and the additional evidence taken onto the District Land and Housing Tribunal at Kibaha. 8 As correctly reasoned by the Chairman in its decision and from the evidence from the record adduced by the parties, I do not find any justifiable reasons to disturb the findings of the first Appellate Court and of the Ward Tribunal. I thus uphold the decision of the Kibaha District Land and Housing Tribunal in Land Appeal No. 29 of 2015 and Land Complaint No. 186/2016 of the Ward Tribunal of Fukayosi. In the circumstances I find no merit in this Appeal. I hereby dismiss the Appeal in its entirety with costs. It is so ordered. Right of Appeal Explained. L. E. 1^ JUDGE 03/08/2018 COURT: Judgment delivered in the presence of Advocate Kiondo for Respondent and in absence of Appellant and Ms. Theresia on 3rd hamber No. 17. JUDGE 03/08/2018