20180125 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA ) AT MBEYA LAND CASE APPEAL NO. 3 OF 2015 (From the Decision of the District Land and Housing Tribunal of Mbeya District at Mbeya Land Case No.3012012) 1. ABRAHAMU SAlMON MWALWEGA 2. ABDALLAH TAJI MOHAMED I .............APPELLANTS

VERSUS ANDREW 1VI.A}E:tJGE ......................................... I.ESPO NDENT

JUDGMENT Date of last Order: 2911212017 Date of Judgment: 2510112018 A.F. NGWALA, J: This is an appeal against the decision of the District Land and Housing Tribunal for Mbeya that ordered the respondent to pay an amount equal to the value of the erected "Pagala", the unfinished house. That tribunal had also decreed in the alternative that the appellants carry away the materials used to build the said "Pagala". The 1st appellant was ordered to pay the costs of the suit to both the respondent and the 2nd appellant. The appellants are aggrieved by both the Judgment and Decree. In the instant Appeal they are seeking an order to set aside the decision. Four grounds of Appeal are contained in this judgment. 1 It The brief facts giving rise to this appeal are that on 23rd February 2012 the Respondent sued the Appellants for recovery of a house on the Plot No. 123 Block "X" Mwakibete area in Mbeya City at the District Land and Housing Tribunal for Mbeya. The respondent purported to be the Administrator of the estate of the late Juston Mahenge who died on 20 1 h September 2011. He alleged that the said deceased left behind amongst other things an unfinished house, a "Pagala" situated on Plot No.123 Block "X" Mwakibete area, in Mbeya City. The deceased died before paying the 1st appellant a sum of Tshs.10,000,000/ being payment for the disputed plot of land as the 1st appellant claimed

to be the owner of the said plot. Later on the 1st appellant sold the said plot to the appellant at the consideration of Tshs 25,000,000/=. The respondent claimed and is still claiming the unfinished house to be handled to him as the administrator of the estate of the later Juton Mahenge his brother. At the hearing of the Appeal Mr. Mashaka Mfalla, the learned advocate represented the 1 St appellant. Miss Juliana Marunda learned counsel represented the 2nd appellant whist Mr. Ngonyani Jackson appeared for the respondent. In respect of the 1 st and 2nd grounds of Appeal that the tribunal chairman erred in law and facts by awarding compensation to the respondent who was a trespasser to the land, and ordering the 1St 2 appellant to pay costs to the 2nd. appellant despite the fact that the Respondent was a trespasser to the disputed land; Mr. Mfalla argued that the chairman having held that the applicant/respondent was a trespasser to the disputed land, he could not again turn and declare him the lawful owner of the suitland. The case of Frank Safari Kaduma v. Shaibu Ally Shendoiwa (1998) T. L. R. 278 was cited to support the contention that the respondent being a trespasser was not entitled to any compensation. Miss Marunda too averred that, since the respondent had been declared a trespasser then the orders for compensation and costs were wrongly issued basing on the principle

that once a trespasser always a trespasser. The case of Salum Juma Mzee v. Oman Ubaya (1984) T. L. R. 31 was cited to fortify the contention. As to the 3rd ground of Appeal that "the learned Chairman erred in law and fact to depart from the opinion of assessors which was of great value is reaching at a just and founded decision", Mr. Mafalla submitted that the chairman disregarded the opinion of the assessors who had opined for the appellants without giving reasons. This offended the provisions of Section 24 of the Land Disputes Courts Act, [Cap. 216 R.E. 2002]. This ground was cemented by Miss Marunda who submitted that giving reasons for departure from the assessor's opinion is a mandatory requirement of the law. 3 Hence the learned chairman offended the cited provision of the ,) Land Disputes Courts Act. On the 1st ground of Appeal that the Chairman wrongly considered the evidence of the trespasser and disregarded the evidence of the rightful owner of the disputed plot, Mr. Mfalla submitted that during trial, the evidence of the respondent was full of hearsay evidence. The respondent failed to bring the key witness on the sale agreement regarding the one who sold the disputed land to them. The respondent lied to the tribunal when he stated that the appellant had died and the title deed was lost. The first appellant however was and is still alive as he appeared before the

tribunal and tendered the original credentials of the disputed plot. On this point Miss Juliana Marunda submitted on the ownership of the disputed plot of land. The appellant made justification of purchase by producing the original certificate of occupancy and spousal consent during trial which were admitted as exhibits in evidence. Furthermore, Miss Marunda, argued that the respondent had no locus standi to file a suit in his own name as he did not show or produce the letters of Administration of the estate of his late brother as held in the case of Shubi Balonzi Senior v. The Registered Trustees of CCM [1986] T. L. R.

208. In this case the phrase or term locus stand has been defined. 4 In Reply Mr. Jackson Ngonyani submitted that on 291h August 2012 the respondent attached the copy of the Letter of Administration of the deceased estate in the Written Submission. The respondent therefore had all powers to pursue the case. The learned trial chairman properly analysed the evidence of both parties and arrived at a correct decision. That was in accordance with the cardinal principle in civil justice that it is the heavier evidence than the other that has to be considered; the case has to be decided on balance of probabilities, and the winner has to be awarded the costs. The case of Heined Said v. Mohamed Mbilu [1984] T. L. R. 113 was cited as authority to his averments. Mr. Ngonyani further submitted that the respondent is entitled for payment of the amount equal to the value of the erected "Pagala" and should be ordered to carry the materials used to build the said building on the contested plot. As to the opinion of the assessors, the said learned counsel, Mr. Ngonyani submitted in the light of the case of NHC v. Ettienne's Hotel, Civil Application No.107 of 2005 that the issue of assessor's opinions is on technicalities. So he prayed the appeal to be dismissed with costs. Mr. Mfalla while rejoining insisted that in the judgment by the trial tribunal the names of Andrew Mahenge v. Abraham

Salmon Mwalwega and Abdallah Taji Mohamed appears. There is nowhere it is indicated that the respondent is the administrator of the estate 5 of his late brother Juton R. Mahenge, hence the omission calls or ' makes the respondent to have filed the application in his own capacity. The case cited by the counsel for the respondent supports the appellants' case as they were able to tender documents in relation to ownership. On the contended "Pagala" (unfinished house) the learned counsel for the lsL appellant argued that everything affixed to the land becomes part of the said land. The cited case of NHC (supra) is distinguishable on that basis. On Section 24 of Cap 216 (supra) it is very clear that the word "shall" has been used. Miss Marunda insisted that Section 24 imposes a mandatory duty to the chairman to give reasons for the departure from the assessor's opinion. On the evidence on record, there is no credit for compensation to be awarded because there is no proof in testimonies before the tribunal. The two respective learned counsels for the appellants altogether prayed for tribunal's judgment and orders to be quashed. The 2nd appellant to be declared the lawful owner of the disputed plot. On reflection of the submissions by the parties through their learned counsels, and the proceedings in records it has been submitted that, the learned chairman held that the respondent

was a trespasser on the disputed plot hence he is not entitled to compensation. Upon perusal of the court record, it is clear at page 12 of the typed judgment by the trial tribunal that the learned chairman had this to say:- "The late who was conned, the incident which to a large extent was attribute by the failure of the 1st respondent to act on the condition given on the certificate of occupancy cannot be condemned without being compensated on what he had done on the land. I say so because the principle is open that a trespasser has to be evicted from the land together with anything he/she has placed on the land". In view of the above quoted finding of the learned chairman there is no dispute that the deceased Juston R. Mahenge wrongly erected a building "pagala" purported to own the disputed plot of land. The deceased proceeded to erect a building unlawfully, hence he was a trespasser. I hold so because it is on record that the 1st appellant tendered a certificate of occupancy over the disputed plot and the spousal consent implying that he owned it legally. His wife consented to the sale/disposition. The respondent who claimed that the disputed plot belonged to his deceased brother just told the trial tribunal that he got the information from the land authority. The respondent had never called any officer from the land authority to support his allegation. It is clearly that a person who fails to call a material witness, the court can draw a negative inference that if such a witness would have been called could give evidence contrary to the wishes of the party who called him. 7 These words were clearly held in the cited case of Hemed Said v. Mohamed Mbilu (1984) T. L. R.

113. If it is true that the disputed plot was the property of the respondent's brother then the land officers for Mbeya could testify in his favour or he could produce either documentary or oral evidence to that effect. Surprisingly the said officers testified in favour of the 1st appellant as per the testimony of (DW3, Land Officer). The existence of the evidence that the 1st appellant possessed the title deed of the plot in dispute unlike the respondent, clearly indicate that the said plot is the property of the 1st appellant. The 1st appellant as a lawful owner of the said plot can in law transfer that plot or bequeath it if he wishes to do so. The respondent's brother (deceased) was a trespasser over that land, under the principle that once a trespasser always a trespasser. The only remedy available was for the trespasser always a trespasser to vacate the land and the lawful owner to come into possession. The gists in this principle is that once a person is declared a trespasser he/she has to remain as he was at the time he entered/trespassed in the said land. For these reasons I am of the firm view that the 1 st ground of appeal has merit. Accordingly it is upheld. Since the 1st ground is less similar to the 2d ground of appeal, I am of the view that it was wrong to make order that the 1St appellant pay cost to the 2nd appellant. Regarding the 3rd ground of appeal, the law

is clear that in reaching at the decision, the chairman shall take into account the opinion of the assessor though he shall not be bound by it. However the same 8 - chairman is mandated to give reasons for the denial or departure ' j from the assessor's opinion. The provision of Section 24 of Cap 216 (supra) reads:- "In reaching decisions the chairman shall take into account the opinion of the assessor but shall not be bound by it, except that the chairman shall in the judgment give reasons for deffering with such opinion". The gist of the above cited provision of the law is that, the chairman of the District Land and Housing Tribunal though not bound by the opinions of the assessors is mandated to take into account the assessors opinion. If he finds nothing in their opinion, he has to state in the judgment the reasons as to why he is against such opinion. The Section is anchored with the word "shall". The provisions of Section 53 (2) of the Interpretation of Laws Act [Cap. 1 R. E. 2002] gives a direct interpretation or translation of the word "shall" to mean:- "(2) Where in a written law the word "shall" is used to conferring a function, such word shall be interpreted to mean that the function so conferred must be performed". The learned Chairman of the District Land and Housing Tribunal in his judgment by stating as follows; at page 13 of the typed judgment: - "The Jsl Respondent is the source of the dispute, to pay costs of the suit to both the Applicant and the 271d Respondent. I depart with the assessors B.B. Kalongole and R. Kangele who have opined for the Respondents". The above quoted statements by the chairman do not in any how suit or fall within the ambits of the provisions of section 24 of the Land Disputes Courts Act, Cap. 216 R. E.

2002. It is a must ora mandatory requirement as stressed by section 53 (2) of Cap 1 (supra). The Baland Singh Rule of practice requires that when a Magistrate, a Judge or a Chairperson departs from his assessors in assessing evidence, he must record his reasons for departing from his assessor's opinion. This was stated in the case of Usi Athuman Matu v. Republic (1988) T. L. R.

78. The Court of Appeal of Tanzania held that:- "The learned trial judge in this case complied with the Ba/and Singh Rule of Practice that he gave good and convincing reasons for reaching a different conclusion from those of his assessors." The learned counsel for the respondent while responding to the submission by the counsels for the appellants stated that the provision of Section 24 Cap. 216 is on technicality, hence should not be given much weight. It is however for the interests of justice that once the law specifically provides for a certain procedure to be adhered, then it should be strictly adhered to, and it should not be treated as an issue of technicality. That can afford no excuse under article 107A (2)(e) of the Constitution of the United Republic of Tanzania (1977) as amended from time to time. Notice shall be 10 taken that in determination of matters of civil nature, courts of law are warned to dispense with issues of technicalities as per the above provision of the constitution. The issue of technicality in jurisdiction has been discussed in a numbers of cases; to mention a few; the case of Zuberi Musa v. Shinyanga Town Council, Civil Application No. 100 of 2004 the Court of Appeal of Tanzania at Mwanza (Unreported). The court held that:- "Article 107A (2) (e) did not do away with all rules of procedure and administration of justice in the countnj, the article

couched that in itself it is both conclusive and exclusive of any apposite interpretation. A purposive interpretation makes it plain that it should be taken as a guideline for the court action and not as an iron dade rule which when properly employed help to inchance quality of justice delivered. It recognizes the importance of such rules in the orderly and predictable administration." On the general issue of technicalities as provided under Article 107A (2)(e) of the Constitution of the United Republic of Tanzania in the case Mobamed Enterprises (T) Ltd v. Mosoud Mohamed Nesa, Civil Application No. 33 of 2012, the Court of Appeal of Tanzania at Dar es salaam (Unreported) the Court of Appeal of Tanzania observed that: - "In our considered view article 1 07A (2) (e) of the constitution do not in any way subjugate the power and intention of relevant provision of laws and rules of 11 - procedure dully enacted. In fact the later (statutory provision of laws) obtain their validity from the very provisions of the constitution." All in all the 3id ground of appeal has merit too. It is hereby upheld. The learned trial Chairman did not in anyhow comply with the requirement of the law in connection with the assessors. Regarding the 4 11, and the last ground of appeal, I have already discussed that the respondent's evidence did not on balance of probabilities establish that the disputed

plot of land belonged to his deceased brother. There was no evidence to support his claims. The appellants proved ownership over the suit land. The documents were admitted in evidence and they were admitted and marked as exhibit "P5". It is not known whether the learned Chairman during his analysis of evidence clearly directed his mind on those exhibits as he never said a word on them in the entire judgment. The learned trial Chairman failed to analyse the evidence that was adduced by both parties to the suit which was placed before him for adjudication. Consequently he arrived at an erroneous decision. For this reason I appreciate the 4th ground of appeal; and find if to be meritorious. In the submission, Miss. Marunda introduced the issue of Locus stand, that the respondent had no power to pursue the case against the appellants. Mr. Ngonyani, learned counsel argued that the respondent is the administrator of the estate of his late brother and that they annexed the copy of the letter of administration to the 12 written submission which was filed in the trial court. It is clear in the record that the respondent in this matter sues in his own capacity and not as an administrator of the late Juston. R. Mahenge. I hold so because both in the tribunal and at this level, the parties are "Abraham Simon Mwalwega & another v. Andrew Mahenge ". There is nowhere it is indicated that

"Andrew Mahenge as the Administrator of the estate of the late "Juston R. Mahenge". The argument by Mr. Jackson Ngonyani, the learned counsel for the respondent that the copy of the Letters of Administration was annexed to the Final Written Submissions during trial is afterthought. The same ought to have been produced at the commencement of trial and shown in the pleadings. This argument in its very nature suffices the court to accept the contention by the learned counsel by the appellants that the respondent had no locus standi to sue the appellants. Locus stand is not a technicality. It is a mandatory requirement in law for a person before he sues any person to ascertain whether he has a cause of action against the defendant, whether he has the capacity to sue, or he or she can sue and that his rights or interests in the matter has been breached, or interfered to entitle him or her a remedy in law. The cited case of Shubi Balonzi (supra) is relevant here. Since locus standi is a legal point, it can be raised at any time of the case that is at any stage, even at the stage of Appeal. Accordingly this court is satisfied that the respondent had no locus standi to sue the appellants at the time of institution of this suit. 13 It is unknown whether he was appointed after he had filed the suit in the District Land of Housing Tribunal or he forgot to indicate this fact as stated in

his Application. If the Appellant and his advocate decided to attach the said Letters of Administration to the written submissions then that was improper because the proceedings do not reveal that the respondent was suing as an administrator of the late Juton Mahenge. It is my considered view that the said document was only a supporting document like case laws that can be annexed to the copy of the written submission. That document was irregularly and unprocedurally accepted to form part of the evidence in record. For the foregoing reasons, this Appeal has merit. It must succeed. Accordingly the Judgment and Decree of the District Land and Housing Tribunal is quashed. The Appeal is allowed with costs to the Appellants. That is the respondent shall have to pay the costs to the appellants. Al?'~ ) A.F. Ngwala Judge 25/01/ 2018 14 ) Date: 25/01/2018: Coram: A.F. Ngwala, J. 1st Appellant: Absent. 2' Appellant: Absent. For the Vt Appellant: Absent For the 2 Appellant: Absent. Respondent: Present. For Respondent: Absent. Court: Judgment delivered in court in the presence of the respondent, and is the absence of the Appellants and the respective counsels for the parties. Court: Right of Appeal to the Court of Appeal of Tanzania explained. • o `~e~ A.F. Ngwala I 10 Judge 25/01/2018 15