adam paulo kiwia vs nasra joshua rhobi 2020 tzhclandd 3828 12 october 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 94 OF 2019 (Originating from Land Application No.58 of 2016 of Temeke District Land and Housing Tribunal) ADAM PAULO KIWIA..................................................... APPELLANT VERSUS NASRA JOSHUA RHOBI........................... RESPONDENT Date of Last Order: 12.08.2020 Date of Judgement: 12.10.2020 JUDGMENT V.L, MAKANI, J This is an appeal by ADAM PAULO KIWIA against the decision of Temeke District Land and Housing Tribunal (the Tribunal) in Land Application No. 58 of 2016 (Hon. Kirumbi, Chairman). At the Tribunal the respondent was claiming ownership of the piece of land situated at Mbagala with Residential Licence No. TMK/MBGK/MKM17/223 (the suit plot). She said she bought the said suit plot from Hassan Shamte Bora. At the same time the appellant said he bought the suit land from the same Hassan Shamte Bora. Basing on the evidence that was presented before it, the Tribunal found that the respondent was the lawful owner of the said suit plot. Being aggrieved with the decision of the Tribunal, the appellant has filed this appeal with the following grounds: 1. That the honourable chairman erred in law and fact buy disregarding the substantive opinions of assessors without sound reason. 2. The honourable chairman erred in law and fact by disregarding the most substantive testimonies ofPW2 one Jeieza Kibagi Lungo (a tenant who was told to vacate the house by the vendor to enable selling the premises to the appellant. 3. The honourable chairman erred in law and fact bu disregarding testimony of one Honest Mushi "DW3" who was called to ascertain boundaries of the premises before as vendor had intended to fence the premise immediately after the transaction (page 6 and 7 of the judgment). 4. The honourable chairman erred in law and fact by neglecting substantive and undisputed testimonies and based his decision upon what he himself said were doubtful matters. 5. The honourable Chairman erred in law and fact by deciding the matter basing on his firm view while neglecting substantive evidences tendered, opinions of assessors and testimonies adduced by witness. The appeal was, by leave of the court, argued by way of written submissions. Submissions by the appellant were drawn and filed by Victor Kessy of KM Law Experts; and the respondent personally drew and filed her submissions. Mr. Kessy adopted the contents of the Memorandum of appeal and as for the first ground of appeal he said that the Chairman disregarded the opinion of the assessors and he did not give reasons for such a departure. He said that the assessors were of the opinion that the 2 respondent was the lawful owner of the suit plot because he was the first to purchase it. On the second, third and fourth grounds Mr. Kessy said the Chairman disregarded the most substantive testimonies of Jeleza Kibagi Lungi (PW2) the tenant who was told to vacate the house on the suit plot after the said suit plot was sold to the appellant. Mr. Kessy said PW2 lived in the said house from 2002 to 2012 when he was told by Hassan Bora Shamte that the house has been sold to the appellant. He said this evidence was overlooked by the Chairperson. He said this was the same in the case of the evidence of Honest Mushi (DW3) who was called to ascertain boundaries of the suit plot as was requested by the appellant. He said the evidence of DW3 was not considered by the Chairperson. Mr. Kessy also said the Sale Agreements Exhibit D2 and D3 was also not considered by the Chairperson in his judgment. He said the appellant could not have advanced a loan as he was not a registered financial institution. He said according to the Agreement of Sale (not Sale Agreement) there was an intention of sale of the suit plot and not a loan. On the last ground, Mr. Kessy said the Chairperson erred in law and fact in making a decision basing on "his firm view"while neglecting the substantive evidence tendered and the opinion of the assessors. He prayed for the appeal to be allowed with costs. The Applicant responding on the first ground said that the Chairman was not wrong in differing with the assessors because he gave 3 reasons and he could differ according to section 24 of the Land Disputes Courts Act CAP 2019. As for the second and third grounds, the applicant said that the Chairman considered the evidence of Jeleza Kibagi Lungo and Honest Mushi but he found that their testimonies had no merit and were inconsistent with what the appellant said and the exhibits that were presented. She said the Chairman was therefore correct to disregard the evidence that did not have merit. As for the fourth and fifth grounds the applicant reiterated her position that the Chairman was correct to disregard the appellants evidence as the same lacked merit and was inconsistent with the one presented by this witnesses' vis a vis the exhibits presented by him in support of his case. She said the Chairman found the evidence presented by the appellant to be of much weight than that of the respondent. She prayed for the appeal to be dismissed with costs. In rejoinder Mr. Kessy reiterated what he submitted in the submissions in chief and proceeded to pray for the court to allow the appeal. Having heard the rival submissions by the learned Advocate and the respondent, the main issue for consideration is whether or not the appeal before the court has merit. I will consider the grounds of appeal as they were raised seriatim. The first ground was that the Chairman differed with the opinion of the assessors without giving a reason. Indeed, according to section 24 of the Land Disputes Courts Act CAP 216 RE 2019 the Chairman is 4 required to take into account the opinion of the assessors in his decision. Though he is not bound by the said opinion, but where he differs, he is obliged to give reasons for differing with the opinion. In the judgment subject of this appeal, the Chairman said at the last paragraph that "due to that I differ with the opinion of the assessors" With this remark my understanding is that the reasons for differing with the assessors were depicted in the summary he gave of the matter, that is, the facts of the case the evidence, his analysis and opinion resulting from the evidence. In any case, the Chairman might have also differed with the assessors because he was of the view that the respondent used the illiteracy of the seller who received the money in belief of taking a loan. And this was illustrated in the immediate sentence before stating that he differed with the assessors. This to my view amounts to a reason and so we cannot state with affirmation that the Chairman did not give his reasons for his decision. I am satisfied that the Chairman gave reasons, but maybe it was difficult to understand him out of the semantics in the language that was used by the Chairman which I may say did not come out clearly. In this regard this ground has no merit. I will deal with the second, third, fourth and fifth grounds of appeal together. These grounds revolve around the analysis of the evidence by the Chairman. The appellant complained that the Chairman did not take into account the evidence of DW2 and DW3 and did not consider other substantive testimonies. I would wish to state from the outset that the Chairman is not obliged to rely upon the evidence of each and every witness who has testified in the course of the 5 proceedings. And in this present case, it is apparent that when the Chairman raised a doubt in the Sale Agreements (Exhibits D2 and D3) he did not find it necessary to rely on the evidence of DW2 and DW3.1 tend to agree with the Chairman because Exhibits D2 and D3 were the basis of argument of ownership of the suit plot by the appellant; and since the Chairman questioned the authenticity of these documents and the manner in which they were signed, it is my considered view that he was not obliged to look into the question of occupation or boundaries as testified by DW2 and DW3. Indeed, the two sale agreements are questionable as they reflect that the plot that was sold to the respondent was TMK/MBGK/MKM17/224 which is opposed to the suit in dispute which is TMK/MBGK/MKM 17/223 which discrepancy was also raised by the Chairman. There is also Exhibit D5 tendered by the appellant, which is a letter to the Acting Registrar, Residential Licencing, Municipal Council Ilala directing him to issue a residential licence to the appellant in respect of the suit plot. However, in his evidence the appellant did not state the outcome of this letter, that is, whether or not a residential licence in his name was issued. It therefore comes as no surprise when the Chairman questioned the authenticity of the sale agreements because there was no supporting evidence as to the ownership of the suit plot. In the contrary the respondent is the one who was in possession of Residential Licence No. TMK/MBGK/MKM17/223 issued in her name on 03/03/2014 and was valid up to 02/03/2019 (Exhibit Pl). There was no evidence whatsoever that this residential licence was revoked. 6 It is settled law that where there is a dispute on ownership of land in a surveyed area the prima facie evidence of ownership is the certificate of registration of ownership. In this present case, the Residential Licence issued to the respondent was substantive evidence that she was the registered owner of the suit plot. There was therefore no reason for the Chairman to dwell on and/or rely upon the evidence of DW2 and DW3 while there was adequate evidence to establish ownership of the suit plot to the respondent. And as I have endeavoured to explain hereinabove, there was no substantive evidence that was left out. These grounds therefore have no merit. In the result therefore, I find no fault in the decision of the Tribunal and the said decision is upheld. The appeal is therefore dismissed with costs for want of merit. It is so ordered. V.L MAKANI JUDGE 12/10/2020