alhaji issa nkingilea vs bukoba district council 2020 tzhc 3927 20 november 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF BUKOBA

AT BUKOBA LAND APPEAL NO. 21 OF 2019 {Arising from land appeal No. 160/2015 of the District Land and Housing Tribunal at Bukoba} ALHAJI ISSA NKINGILEA............................................................ APPELLANT

VERSUS BUKOBA DISTRICT COUNCIL......... ,...................................... RESPONDENT

JUDGMENT Date of last order 21/10/2020 Date ofjudgment 20/11/2020 KHekamajenga, J. In 1978, plot No. 2 Block B at Katoro within Bukoba Rural District was offered to Mr. Azizi Mussa and Alhaji Issa Nkingilea as the guardian of Mohamed Amri under the umbrella of tenants in common. It is alleged that Mohamed Amri was a minor and his father died when he went for pilgrimage in Saud Arabia. Therefore, Alhaji Issa Nkingilea (appellant) cared for the plot until Mohamed Amri attained the age of majority. In 1979, Mohamed Amri attained the age of majority and decided to sell his share of the land to Janath Issa Nkingilea (the daughter of the appellant). In 2013, Janath Issa also gave the land to the appellant as a gift. On the other hand, in 2007, Azizi Musa also sold his share to his son called Abib Azizi. It is alleged further that Azizi Musa failed to cooperate with the appellant in acquiring the title deed. As a result, the appellant has been receiving claims for land rent in the names of Azizi Mussa and Alhaji Issa Nkingilea as the guardian of Mohamed Amri something which aggrieves the appellant. However, the respondent did not process the title deed because the documents alleged to transfer the land are in the hands of the appellant. Finally, the appellant sued the respondent at the District Land Housing Tribunal at Bukoba. In his application, the appellant alleged that the

respondent refused to process the title deed in his name. When the case was scheduled for hearing before the District Land and Housing Tribunal, the appellant briefly testified and prayed to tender some documents to support his case. The documents were objected because he prayed to tender copies instead of the original documents. The appellant was given time to bring original documents and the case was adjourned. When the case came for hearing, the appellant refused to testify and asked the tribunal chairman to recuse himself from the case. The chairman did not disqualify himself from the case. Because there was no substantial evidence to allow the defence to bring evidence, the chairman finally dismissed the case. 2 The appellant preferred the appeal to this Court calling upon the Court to quash the ruling of the trial tribunal and order the matter be heard de novo before another chairman. The appellant advanced the following grounds: 1. That, the learned chairman erred in law and fact to dismiss the matter without considering that there was no last adjournment; 2. The learned chairman erred in law by hearing the matter while lacking jurisdiction; 3. That, the learned chairman erred in law and fact in entertaining and deciding the matter while under total influence of biasness; 4. That, the learned chairman erred in law and fact to dismiss the matter after failing to determine

the fair reasons leading to his disqualification. When the parties appeared before this Court to argue the appeal, the appellant appeared in person whereas the learned solicitor, Mr. Daniel Mbaki appeared for the respondent. In the oral submission, the appellant submitted that he sued the respondent after failing to grant him a title deed on Plot No. 2 Block B which is located at Katoro -Bukoba Rural District. He informed the Court that the plot was purchased by Janeth Issa from Mohamed Amri in 1979. He further stated that the said plot was allocated to Azizi Mussa and Alhaji Issa Nkingilea as the guardian of Mohamed Amri. By that time, Mohamed Amri was below the age of 18 years. On 06th July 1979 when Mohamed Amri was 20 years old, he sold the plot to Janath Issa (the appellant's daughter). In 2013, Janath Issa gave her 3 share as a gift to the appellant. In 2007, Azizi Mussa sold his share to his son Abib Azizi. On 31st October 2014, the appellant requested Abib Azizi to cooperate with him in processing the title deed in their names. However, Abib Azizi later refused to process the title deed. The appellant sued the respondent for refusal to grant the title deed over the plot of land. He further stated that the respondent still recognize the owners of the plot as Azizi Mussa and Alhaji Issa Nkingilea as the guardian of Mohamed Amri. In response, the counsel for the respondent

submitted that according to the letter of offer with Reference Number ZM/BK/AR/726/3/LPKM dated 04th January 1978, the owner of the land in question is Azizi Mussa and Alhaji Issa Nkingilea as the guardian of Mohamed Amri. According to the appellant's testimony, the land has been transferred from Mohamed Amri to Janath Issa and finally to the appellant as a gift. The share of Azizi Mussa was transferred to Abib Azizi Mussa. If this information is true, the appellant who has an interest in the land should get the documents supporting the sale of the plot from Mohamed Amri to Janath Issa. The appellant should thereafter apply for transfer of the land. If Abib Azizi does not cooperate in securing the title deed, the appellant may apply for subdivision of the plot. This process will only be possible if the alleged transfer of the plot was valid. 4 On the first ground of appeal, Mr. Mbaki argued further that the grounds of appeal do not bear any merit and the trial tribunal was right in dismissing the application. On 24th January 2019, when the appellant prayed to tender copies of documents, the case was adjourned and the tribunal demanded for the original documents. On 28th March 2019, the appellant appeared without the original documents. When the trial chairman rejected the admission of copies of documents, the appellant alleged that the chairman was biased. The chairman did not

recuse himself from the case hence the appellant declined from testifying. The chairman finally dismissed the case. On the second ground, the appellant estimated the value of the land to be Tshs. 20,000,000/=. The property is located at Bukoba Rural District and therefore the trial tribunal had jurisdiction to try the matter. On the third ground, Mr. Mbaki submitted that the tribunal gave the appellant the right to be heard. He supported the argument with the case of Registered Trustees of Social Action Trust Fund and Another v. Happy Sousage Ltd and Others [2004] TLR 265. On the fourth ground, he argued that the allegation on biasness leveled against the trial chairman was not true. The chairman gave reasons for dismissing the case. Mr. Mbaki fortified the argument with the case 5 of Alhaji Issa Nkingilea v. Sudi Ameir and two others, Civil Case No. 6 of 1999. He finally urged the Court to dismiss the appeal. When rejoining, the appellant insisted that he submitted the original documents and he was given a receipt to that effect. I have gone through the whole file and the appellant's copious letters of complaints; in my view, the appellant needs proper advice than this case. However, before my advice, it is pertinent to address the grounds of appeal advanced in this case. On the first ground, the appellant argued that the case was dismissed while there was no last adjournment.

Despite the fact that the appellant did not argue this ground, it was addressed by the counsel for the respondent. According to the trial tribunal proceedings, on 24th January 2019, the appellant tendered the copies of documents to support his case, he was advised that under the law, photocopies cannot be admitted. He was requested to bring the original documents the next day. Thereafter, the case was adjourned until on 23rd March 2019. When the appellant appeared, he alleged that he had no confidence in the chairman of the tribunal. The appellant declined to neither testify nor tender any document and the case was dismissed. In my view, there was no need to offer another adjournment while the appellant 6 refused to testify. The appellant therefore failed to prosecute his case and the dismissal order was an appropriate decision. On the second ground, the appellant questioned the jurisdiction of the trial tribunal. I have perused the application lodged by the appellant which estimated the value of the disputed property to be Tshs. 20,000,000/=. Under the law, this pecuniary value does not fall within the ambits of the Ward Tribunal; instead it is within the jurisdiction of the District Land and Housing Tribunal. Again, it does not bring any sense for the appellant to raise the issue of jurisdiction at this stage because he was the one who filed the case before the District Land

and Housing Tribunal. On the third ground, the appellant alleged that the trial chairman was biased. The issue of biasness was raised after the appellant's documents were rejected. I do not find any crew on whether the trial chairman was biased. Therefore, the chairman could not recuse himself from the case without any justifiable reasons. Not every complaint against the chairman my lead to recuse from the case and the Court of Appeal of Tanzania has already provided guidance on this. In the case of Registered Trustees of Social Action Trust Fund and Another v. Happy Sausages LTD and others [2004] TLR 264 the Court stated that: 7 'It is our considered view that it would be an abdication ofjudicial function and an encouragement of spurious applications for a judicial officer to adopt the approach that he/she should disqualify himseif/herseif whenever requested to do so on application of one of the parties on the grounds of possible appearance of bias. A judicial officer should no automatically stand aside whenever requested to do so.' The above stance was amplified in the case of Laurean G. Rugaimukamu v. Inspector Genersl of Police and Another, Civil Appeal No. 13 of 1999 CAT (unreported) thus: '/I/7 objection against a judge or magistrate can legitimately be raised in the following circumstances: 1. If there is evidence of bad blood between the litigant and the judge

concerned; 2. If the judge has dose relationship with the adversary party or one of them; 3. If the judge or member his family has an interest in the outcome of litigation other than the administration ofjustice. A judge or magistrate should not be asked to disqualify himself or herself for flimsy or imaginary fears. In the instant case, there was no sufficient ground for the trial chairperson to disqualify himself from the case hence the appellants ground has no merit. 8 The third ground is similar to the fourth ground where the appellant insisted that the chairman was supposed to disqualify from the case. Therefore, based on the above grounds of appeal, I do not find any ground to warrant this Court to allow the appeal. Now, coming back to the merit of the case, I have already stated the background of the dispute. However, I wish to highlight some important information concerning the dispute. As earlier stated, the land was offered to Azizi Mussa and Alhaji Issa Nkingilea as the guardian of Mohamed Amri. In other words, the land did not belong to the appellant because he held it as the guardian of Mohamed Amri who was, in 1978, still under the age of 18 years. When Mohamed Amri attained the age of majority, it is alleged that he sold the land to Janath Issa. However, this information has no proof. It is further alleged that Janath Issa gifted the land to the appellant. It is

further alleged that the share of Azizi Mussa was transferred to his son called Abib Azizi. The major appellant's complaint is that Abib Aziz does not cooperate with the appellant in processing the title deed in their names. However, all this information is only known to the appellant. The responsible authorities, including the respondent, have no official information concerning the sale and finally 9 transfer of the land to the appellant. The respondent does not know that the land now belongs to Abib Azizi and the appellant because all the documents of the alleged transfer are held by the appellant. Therefore, the official records currently reads that the owners of the land is Azizi Mussa and Alhaji Issa Nkingilea 'Mlinzi wa Mohamed Amri' (Tenants in Common). The respondent has been processing land rents in the above names something which aggrieves the appellant. In my view, the respondent cannot be blamed because the appellant has not taken necessary steps to transfer the land into his name. His grievances with Abib Azizi cannot be shifted to the respondent. The appellant should follow the procedures to ensure that the transfer is made. What I can briefly advice is, let the appellant take the documents to the respondent for scrutiny if they can enable him to process the title deed in his name. Failure to do so, he should not blame the respondent because no one can risk to

transfer a registered land without following proper procedures. See, Section 61 to 166 of the Land Act, Cap, 113 RE 2019. In conclusion, I find the appeal devoid of merit and it is hereby dismissed with costs. The appellant prayed for the case to be retried with another chairman, but considering the nature of the case and reasons stated above, I do not find any reason to order retrial of the case. Order accordingly. Dated at November 2020. Judge 20th November 2020 Court: Judgment delivered in the presence of the learned solicitor for the respondent, Mr. Mbaki and in absence of the appellant. li