Land Appeal 37 of 2023 Judgment Mrisha J

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA LAND APPEAL NO. 37 OF 2023 (Originated from the Judgment and Decree ofthe District Land and Housing Tribunal for Katavi at Mpanda in Application No. 51 of2022) BETWEEN ADAMU SAID ATHUMANI (As the Administrator of the estate of the late Said Mlambo)............................................................................................ APPELLANT VERSUS KASIMU RAYMONDI PANDISHA.............................................. RESPONDENT JUDGMENT 17th October & 10th December, 2024 MRISHA, J. The rivalry between the appellant and respondent in this appeal is all about a 7 acres pieces of land henceforth the disputed land, which is located at Katobo within Mpanda District in Katavi Region. Before the trial tribunal which is the District Land and Housing Tribunal for Katavi at Mpanda, the appellant sued the respondent alleging that the latter had 1 invaded the disputed land which is the estate of the late Said Milambo, the appellant’s father. On the other side, the respondent disputed that allegation and maintained that the suit land belongs to one Martin @Station Master who had purchased it from one Mathias Kaputa and hired him to take care of it. The records of the trial tribunal depict that each of the parties to this appeal, summoned his witnesses who testified and supported their stories regarding the ownership of the disputed land. Those who testified for the appellant, told the said tribunal that the disputed land is the property of the appellant’s father who passed away on 1998 and that the respondent who once married the appellant’s late father’s granddaughter one Tatu, was just borrowed the disputed land with his wife; however, after divorcing his wife, he was ordered by the appellant to vacate from the said land, but refused to do so. Hence, the land dispute arose. It was further the evidence of the appellant and his witnesses that formerly, his later father had lent his granddaughter one Tatu 5 acres, but after his demise and divorce between the said granddaughter and the respondent, the respondent invaded 2 acres thus making a total of 7 2 acres which he has been in occupation despite the efforts by the appellant to have him release the same. On the other hand, the respondent and his witnesses were firm that the late Said Mlambo had never been in occupation of the disputed land, rather the same was purchased by one Master from one Mathias Kaputa (SU3) at the consideration of Tshs. 50,000/=, who later tasked the respondent to take care of it. Based on the above contentious evidence, the trial tribunal found that the appellant failed to discharge his duty of proving his claim over the disputed land and resolved that the respondent is the lawful owner of the disputed land since he managed to show how he got the disputed land. As a result, it declared him to be the lawful owner of the disputed land and dismissed the applicant’s application with costs. It is that decision which prompted the appellant to air out his grievances by filing a memorandum of appeal with this court which contains the following grounds: - 1. That the trial tribunal erred in fact after failing to understand that the late one SAIDI MLAMBO did not give his land property to his (sic) grandchildren one TATU KASIMU but only (sic) permit his grandchildren to use the said land. 3 2. That the trial tribunal erred in law and fact after considering that witness SU2 HAMISA JUMA bought the land dispute from one MATHIAS KAPUTA (SU3) on behalf of STATION MASTER without any written agreement witnesses by Chairman of the Village contrary to the law and also make the evidence weak. 3. That the trial tribunal erred in law and fact by ignoring the evidence adduced by the appellant that the late one SAID MLAMBO has a good title in land dispute. 4. That the trial tribunal erred in law and fact by declaring the respondent as a lawful owner of the land property without (sic) consider that the respondent failed to prove how he was given the land property from one STATION MASTER, he didn’t even (sic) brought key witness to prove his ownership. 5. That trial tribunal erred in law and fact by raising SUO MOTU the issue of time barred to institute land dispute in the judgment at page number fiver of the trial judgment without calling parties to be heard. Contrary to the law, and hence make the whole judgment and decree Null and Void. 4 Armed with the foregoing grounds of appeal, the appellant has prayed that the present appeal be allowed with costs and the court be pleased to nullify both the judgment and decree of the trial tribunal. On the other hand, the respondent disputed the above allegations on the grounds that the trial tribunal Chairman did rightly to decide in the Respondent’s favour because the Appellant’s evidence was very weak and indeed contradictory, that, what is alleged in the second ground is a mere afterthought as Mathias Kaputa (SU3) proved beyond reasonable doubt (which the Appellant failed to shake) that he (SU3) was the lawful owner of the disputed land which he lawfully disposed to the Station Master who is the Master of the Respondent and, that the trial Tribunal did rightly to decide in the Respondent’s favour because the late Said Mlambo had no good title over the disputed land. He also contended that the trial tribunal did rightly to decide in the Respondent’s favour because the Appellant who was the Applicant in the original Application, failed to prove ownership over the disputed land and finally, that the trial Tribunal did rightly to observe that the Application was time barred which was in accordance with the evidence adduced by the Appellant and his witnesses. 5 At the hearing of the present appeal, both parties appeared in person without legal representation and apart from making their brief oral submissions, each of them adopted their filed documents to wit: a memorandum of appeal (by the appellant) and reply to memorandum of appeal (by the respondent) to form part of their submissions in chief. The appellant began to address the court by submitting that he was aggrieved by the decision of the trial tribunal because in his evidence the respondent testified that he is an administrator of the disputed land and not the owner of the said land. That was his address regarding the first ground of appeal. And, in regards to the second, he submitted that despite testifying before the trial tribunal that he was given the disputed land by one Martin to administer it, the respondent did not bring that person before the trial tribunal prove that evidence. Apart from that, the appellant submitted that during trial, the respondent failed to identify the disputed land by claiming that the disputed land is 60 acres while the same is only 7 acres. Also, the appellant had it that it is not true that one Tatu Kassimu cohabited with the respondent for more than 12 years; hence, the trial tribunal erred in law and fact to hold that the respondent was entitled to be declared the 6 owner of the disputed land due to his long occupation of the disputed land. He concluded by requesting this court to allow his appeal and nullify both the judgment and decree of the trial tribunal. In response, the respondent briefly submitted that he was introduced by his mother to one Martin Mollel who was the employee of the Tanzania Railway Company. He also submitted a prayer that this court be pleased to dismiss the appellant’s appeal with costs and upheld the decision of the trial tribunal. This is a first appeal and therefore, this court is entitled to only interfere with the findings of the lower court where it finds that there was misdirection or misconception on the part of the trial tribunal. In the absence of any such misdirection or non directions of the law, the appellate court cannot disturb the findings of the lower court. (See: DPP vs Jaffari Mfaume Kawawa [1981] T.L.R. 149 and Richard s/o Mgaya @ Sikubali Mgaya v R, Criminal Appeal No. 335 of 2008). Having revisited the typed proceedings of the trial tribunal and scanned the impugned judgment and the parties’ rival submissions as well as the presented grounds of appeal, I will straightaway determine whether or not the present appeal has merits. 7 In the first ground, the appellant’s complaint is that the trial tribunal erred in fact by failing to understand that the late one Said Mlambo did not give his land to Tatu Kassim, his granddaughter, but just permitted her to use it. Looking at page 4 of the impugned judgment, it appears that the learned trial chairman was of the view that the appellant had contradicting versions as to whether one Tatu Kassimu was given the disputed land or just lent the disputed land by her grandfather. However, looking at 5 of the trial tribunal’s typed proceedings, it appears that in the course of his testimony, the appellant did not say his late father gave his grand daughter part of the disputed land to be her own property. Had that been so, the appellant would not chase the respondent from the disputed land; rather one could expect that to be done by Tatu Kassimu. By chasing the respondent from the disputed land, it implies that the disputed land was the estate of the appellant’s late father and the appellant was justified to do so as the administrator of his late father’s estate in order to protect that piece of land. Also, I have gone through the proceedings of the trial tribunal and noted that the appellant’s evidence that he chased the respondent from the disputed land in 2010 and that the latter had invaded 2 acres of the disputed land, was not shaken by the respondent during cross 8 examination. Hence, based on the above reasons, I find this ground of appeal to be meritorious. Coming to the second ground, the appellant has faulted the trial tribunal for believing the evidence of SU2, Hamisa Juma who claimed to have purchased the disputed land from SU3, Mathias Kaputa on behalf of one Martin @Station Master without any written agreement witnessed by the Village Chairman which is contrary to the law. On this, I wish to say that it is not necessary that any agreement must be reduced into writing. Section 10 of the Law of Contract Act, Cap 345 R.E 2019 provides that all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object. It does not say oral agreements are not recognized under the eyes of the law, provided they are witnessed. The records of the trial tribunal reveal that the alleged sale agreement between one Hamisa Juma and Mathias Kupata, was made orally in presence of witnesses. This is shown at pages 17 and 19 of the trial tribunal’s typed proceedings which show that at the time of that sale agreement, the witnesses were one Said Mlambo, the appellant’s late father, and the young brother of Hamisa Juma. 9 The only problem with the evidence of the respondent and one Hamisa Juma, is that they did not summon the young brother of Hamisa Juma and the Village Chairman of the place the disputed land is situated in order to corroborate their evidence before the trial tribunal. This convinces me to agree with the appellant that the respondent failed to prove before the trial tribunal that there was existence of such sale agreement. Thus, I find the second ground to be meritorious. As for the third ground of appeal, the appellant has complained that the trial tribunal erred in law and fact by ignoring his evidence to the effect that the late Said Mlambo had a good title over the disputed land. Despite the fact that the respondent disputed that argument, I am of the considered opinion that his denial is not substantiated by any evidence. This is because the records of the trial tribunal depict that the appellant testified that the disputed land is the property of his late father and, his evidence despite not been shaken during cross examination, as it appears at page 6 of the trial tribunal’s typed proceedings, was corroborated by the evidence of Yasini Kassim (SM2) and Yahaya Said Athuman (SM3), as it is shown at pages 8 to 9 of the said proceedings. Besides that, I have observed that at page 5 of the impugned judgment, the learned trial chairman had the view that even if the appellant could 10 be able to prove ownership of the disputed land by his late father, still the respondent would have been regarded to have occupied the disputed land by considering the period of over ten years he has been occupying the said land. With all due respect to the learned trial chairman, that was misdirection because during the trial before him, the issue of long occupation of the disputed land by the respondent, was not raised and discussed. This means that the trial chairman made his own findings on extraneous matter which was not part of the proceedings and testimonies of the appellant’s side. This vitiates the proceedings and consequently the judgment of the trial tribunal. The foregoing makes me to find merit in ground 3 of the appellant’s memorandum of appeal. Regarding ground 4, the appellant’s grievance is that the trial tribunal erred in law and fact by declaring his counterpart as the lawful owner of the disputed land without considering that the respondent failed to prove how he was given the land by one Station Master. On my part, I am of the considered opinion that such argument has merit because looking at the evidence of the respondent, one will find that in the course of testifying before the trial tribunal, he did not say that he was given the disputed land by one Station Master as his own 11 property, rather he said he was hired to take care of it. The same story was given by one Hamisa Juma (SU2) who told the trial tribunal that the respondent was hired by one Station Master to take care of the disputed land, and that when the latter wanted to shift to some other place, he directed the respondent to dispose the said land, but the latter sold part of it and spared another for his own. That evidence indicates that the respondent was not the owner of the dispute land. Also, I have observed that the impugned judgment of the trial tribunal depicts that the respondent led evidence to the effect that the disputed land was the property of one Station Master who purchased it from one Mathias Kaputa. However, in the course of delivering its judgment, the trial tribunal declared the respondent as the owner of the disputed land. I wonder why the trial tribunal reached at that finding while, even assuming that was the case, the disputed land was said to be the property of one Station Master. This is another reason why I have found the appellant’s argument in that ground, to be meritorious. In regards to ground 5, the same has already been addressed in the course of dealing with ground 3. Hence, I also find the same to be meritorious because it is obvious that the issue of time barred was an extraneous matter which is not allowed to be injected in the judgment of 12 the trial court. (See: Florence Mobili & Others vs DPP, Criminal Appeal No. 98 of 2019 (CAT at Mbeya, unreported). Thus, owing to the foregoing reasons, it is my settled view that the present appeal has merit and therefore, I allow it with costs. Consequently, I hereby nullify both the judgment and decree of the trial tribunal and in lieu thereof, declare the disputed land to be the property of the late Said Mlambo. It is so ordered. A.A. MRISHA JUDGE 10.12.2024 DATED at SUMBAWANGA this 10th day of December, 2024. A.A. MRISHA JUDGE 10.12.2024 13