aikos namundujee vs method milambo 2020 tzhclandd 1 25 november 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA < (LAND DIVISION)

AT DAR ES SALAAM (Holden at Ifakara) LAND APPEAL NO- 258 OF 2019 (From die decision of the District Land and Housing Tribunal ofIFAKARA/ULANGA District at IFAKARA in Land Application No. 51 of2017) AIKOS NAMUNDUJEE................... APPELLANT

VERSUS METHOD MILAMBO................................................... RESPONDENT

JUDGMENT ON APPEAL S-M- MAG HIM BI, J: This appeal emanates from the decision of the Ifakara/Ulanga District Land and Housing Tribunal ("the Tribunal") in Land Application No. 51/2017 in which the appellant herein was the applicant. He sued the respondent for trespass over a piece of land measuring 1 % acres situated at Kisawasawa area. Being aggrieved by both judgment and decree dated 11th day of October 2019, he has preferred his appeal before on the following grounds: 1. That the Trial District Land and Housing Tribunal erred both in law i ’ ' i and facts for allowing written statement of defence filed out of the i time without leave of the trial tribunal and without lawful reasons.

2. That the Trial District Land and Housing Tribunal erred both in law and' facts for failure to consider the heavy evidence adduced by the i Appellant and supported by adjacent neighbors of the disputed land, instead considers the weak evidence of the Respondent and the Respondents witnesses who are not adjacent neighbors of the disputed land.

3. That the trial District Land and Housing tribunal erred both in law and facts by failure to realize that there was no any material contradiction or inconsistence in the testimonies of the Applicants side resulted to the Trial Tribunal rejection of evidence 4. That the trial District Land and Housing tribunal erred both in law and facts for failure to realize that the land in dispute is un surveyed land and its size was just an estimated size as required by items 4 of the land application form No. 1 as 11/3 acre and 13/4 acre are almost nearby estimation and there was no dispute between the parties as to the estimated size of the land in dispute. On those grounds, the appellant had the following prayers to make: a) Whole appeal be allowed and a declaration that he Appellant is the lawful owner of the disputed land. b) Or whole appeal be allowed and with an order of quashing and setting aside the decision and remit back the file to the trial tribunal for the matter to proceed ex parte. c) Respondent bear the costs of this appeal. d) Any other order(s) this High Court may deem fit to the grant. When this appeal came for hearing on the 19/11/2019, Mr. Hassan Chande represented the appellant while Mr. Fumbuka Sikujua represented the 2 respondent. I appreciate the submissions made by both Counsels which shall be taken aboard in this judgment. The brief background leading to the

appeal at hand is outlined. The disputed is on a piece of land measuring 1 1/3 of an acre which the applicant alleges to have been trespassed by the respondent herein. The piece of land located at Keituu, Kisawasawa area in Kilombero District in Morogoro Region. The applicant claims that he owns a land measuring a total of land is 31/3 acres which he acquired in 1972 through clearing forest and he used it with his family to 2013 when the respondent invaded the 1 1/3 acre and commenced cultivation activities without the applicant's permission. All effort to settle the matter proved futile hence the Application at the tribunal which is a subject of this appeal. Determination of this appeal will start with the first ground of appeal, which is on the matter of both law and procedure. The ground is that the tribunal erred both in law and fact for allowing Written Statement of Defence (WSD) filed out of the time without leave of the trial tribunal and without lawful reasons. In his submissions to support this ground, Mr. Hassan Chande, learned Counsel representing the appellant, submitted that at tribunal, the respondent initially filed the WSD in Kiswahili language, as a result, when the matter came for hearing, the advocate for the respondent prayed to amend the WSD so as to put it in English Language as required by the law. That the trial tribunal granted only 14 days to amend the

WSD and contrary to the order of the tribunal, the respondent filed an amended 3 WSD after two months contrary to the order and without leave of the tribunal. He submitted further that when the matter came for hearing, the advocate of the applicant raised an objection that the WSD was filed out of time and the respondent's advocate admitted that fact. His concern was whether it was proper for the respondent to file the amended WSD out of time (out of court order) without leave of the court. He argued that the WSD was filed contrary to Order XIV Rule 1 of the Civil Procedure Code Cap 33. R.E 2019 ("the CPC") which explains the failure to present the WSD on time. In reply, Mr. Sikujua, learned Counsel representing the respondent, submitted that that Mr. Chande did not go through the records of the court properly. That if he did, this ground of appeal would not have been raised. He argued that when the matter came for hearing, the counsel for the applicant raised the concern and the tribunal struck out the amended WSD, hence the only question remaining is whether the struck out WSD affected the one filed in Swahili version. That the issue was also raised at the trial tribunal and the tribunal was of the view that since the respondent had filed the Swahili WSD on time then the struck put WSD did not affect the one filed in Swahili version. From that point of view, he argued, the

trial tribunal did not error whatsoever in allowing the WSD filed by the respondent as it was filed on time and this argument is supported by his admission. Further that the trial tribunal could have erred if it allowed the WSD filed out of time granted, arguing that Section 32 of the Land Disputes Courts Act, Cap. 216 R.E 2019 ("the Act") provides that the language of the tribunal shall be English 4 or Swahili and that it is the judgment and decree that shall be in English. He concluded that the ground of appeal has no merits and it should be dismissed. In rejoinder, Mr. Chande submitted that the court should look at all these technicalities. Before I embark to determine the issue, I must correct the submissions by both the learned Counsels which I find if left unattended, they will mislead the Court. I will start with Mr. Chande's submission on failure to file WSD which he submitted to be Order XIV Rule 1. With respect, the issue is covered under Order VIII Rule 14(1) which is provided is covered under Order VIII Rule 14(1) of the CPC which provides: "Where any party required to file a written statement of defence fails to do so within the specified period or where such period has been extended in accordance with sub rule 3 of rule 1, within the period of such extension, the court shall, upon proof of service and on ora! application by the plaintiff to proceed ex parte, fix

the date for hearing the plaintiff's evidence on the claim." I will then address Mr. Sikujua's submissions which are seriously erroneous and they don't conform to the court records. He submitted that the ground of objection was raised at the tribunal and the tribunal struck out the English version of the WSD. I had to go back and peruse the records of the tribunal and to my dismay; I found that Mr. Sikujua was totally misleading the court. Contrary to what he submitted, the records show that on the 22/01/2019 the court delivered its ruling on Mr. Chande's objection that the WSD was filed out of time and overruled Mr. Chande's objection. The 5 question remains whether it was right for the tribunal to overrule the objection, which is the substance of Mr. Chande's objection. Having gone through the contested ruling, surprisingly in the said ruling, the tribunal turned to the defence counsel by defending the delay in issuing the receipt of payment of filing fee for 3 months by throwing the blame on the Government payment systems and that the money was left with the Clerk. This surprised me because even if the system could have been slow, it has never taken three months to issue a receipt of payment of Tshs 4,000/- (say four thousands only). I am even questioning the integrity of the said Clerk who took custody of the money that was to be paid to the Government and kept for three

good months; after all it was not her/his job to be custodian of Government money. Therefore since proof of filing is on the receipt of payment, and the receipt shows that the filing fee was paid three months after the order of the court, as correctly argued by Mr. Chande, it was an error of the tribunal to have continued to retain the WSD filed out of time in the court records. That said, the English version of the WSD that was filed out time is hereby expunged from the records of the tribunal. The next point of controversy here is whether having so expunged the WSD from the records, after failing to file an amended WSD on the time prescribed by the tribunal, the respondents WSD filed in Swahili was valid and formed part of the records. Mr. Sikujua cited Section 32 of Cap.

216. The Section provides: "The language of the District Land and Housing Tribunal shall be either English or Kiswahiii as the Chairman holding such tribunal 6 may direct except that the record and Judgment of the Tribunal shall be in English. "(Emphasis supplied) From the above provisions, it is clear that the records of the tribunal should be in English. The records of the court include all pleadings which, in the case of the tribunal, include the Application and the WSD. These form part of the "records" which are required to be filed in English. Therefore whatever it may be, the WSD that was initially filed in Swahili was not competent as it was contrary to the requirements of Section 32 of the Act. The above notwithstanding, even if we were to argue that the Swahili version of the WSD was properly before the court, we also have to analyse whether upon application for amendment of the WSD, the said WSD remained in the records, in other words, what is the effect of an order of amendment of the pleadings in the previously filed pleadings. It is trite law when a pleading (a plaint/application or WSD) is amended, the previous filed no longer form part of the record. Therefore even if we were to argue that the Swahili version of WSD was valid (which is not), the order for amendment removed the WSD from the records. Having expunged the WSD from the records, the question remains on

the validity of the proceedings before the Tribunal, having expunged the respondents WSD. In the case of Kanji Devji Vs Damoder Jinebhee and Company, (1934) 1 E.A.C 87 the East African Court of Appeal emphasized that the defendant who fails to file a defence put himself out of court and no longer has any locus stand cannot be heard. The current case is of no exception, since the respondent filed an incompetent WSD which was in Swahili, and failed to filed a proper WSD within the time 7 extended by the tribunal, the position of the parties were that no WSD was filed in court. This left the respondent with no legs to stand at the tribunal. The effect of it is as good as if the respondent did not file any defence, he had no locus; the remedy therein is to have the WSD expunged from the records. The absence of the WSD on the part of the Respondent gave him no opportunity to bring witnesses no right to cross examine the applicants witnesses. Therefore the WSD, all questions in cross examination of the appellants witness and the respondent's evidence during trial are hereby expunged from the records of the trial tribunal. Having so expunged the WSD and the respondent's evidence from the records, my work here is to see whether the appellant's evidence that was adduced during trial was sufficient to establish his ownership to the disputed land. His evidence included that of himself,

who testified to have acquired the land in the year 1974 by clearing the forests. As correctly pointed out by Mr. Chande, neighbors of the disputed land testified and support the applicant. This is the evidence of AW2, who testified to have been the appellant's neighbor since 1974 where he found him at the suitland and they cleared the lands together. On his part PW3 testified that he knew the appellant's land and he saw the invasion by the respondent in 2008. I find that in the absence of the evidence to the contrary, this evidence was sufficient to prove that the appellant is the lawful owner of the suitland. That said, this appeal is allowed, the judgment and decree of the tribunal are hereby set aside. The appellant is declared the lawful owner of the suit land measuring 1 % acre located at Keituu, Kisawasawa are in Kilombero 8 District and he shall be left with peaceful enjoyment therein. The appellant shall have his costs for this appeal. Appeal Allowed. rsM) v\ i ■■ s. mSiaghimbi \ i J CT

JUDGE ' 25/11/2020 9