Ally Omary

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB REGISTRY AT MOROGORO LAND APPEAL No 4112 OF 2024 [Appeal from the decision of the District Land and Housing Tribunal for Kilosa District at Kilosa in Land Application No 18 of 2016] BETWEEN 1. ALLY OMARI jst APPELLANT 2. RASHID ABDUL 2"*^ APPELLANT VERSUS ISMAIL HASSAN MALIPULA (The Administrator of the Estate of the late Hassan l^al'Pula) RESPONDENT JUDGMENT MRUMA,J. In the District Land and Housing tribunal for Kiiosa District at Kilosa, one Hassan Maiipuia (deceased), instituted a suit against the present Appellants Ally Omar and Rashid Abdul for a declaration that he was the lawful owner of a piece of land measuring about 1.5 acres located at Ulaya Village in Kilosa District of Morogoro region. The first Appellant Ally Omary filed his written statement of defence disputing the Respondent's claim while asserting that the disputed 1 land formed part of his two acres land which he acquired by purchasing from one Rashid Kihombe. The second didn't file any written defence and his oral evidence before the tribunal was ignored and therefore struck out of the proceedings. After hearing evidence from both sides the trial tribunal found for the Applicant Hassan Malipula and against the present Appellants. The trial tribunal declared the Applicant, the late Hassan Malipula the lawful owner of the disputed piece of land and ordered the present Appellants to be evicted from that land. Aggrieved with the findings and judgment of the trial tribunal the Appellants have filed this appeal on the following grounds:- 1. That the tribunal erred in law and fact by failing to properly examine evaluate and analyse the weight of evidence on record; 2. That the trial tribunal erred in law and fact by failing to put into consideration the evidence of the second appellant; 3. That the trial tribunal erred in law and fact because the written statement of defence of the second appellant filed on time as per order of Honourable Chairman R. S. Mnyukwa. At the hearing of this appeal parties were represented. The appellant was represented by Ms. Kanisia Komba whereas Respondent was represented by Mr Baraka Lweeka and Ms. Suzan Mafwere both learned advocate. The Appeal was argued by way of written submissions. Submitting in support of the second and third grounds of the Appellant's appeal, Ms Komba contended the act of the learned trial chairman to expunge the second Appellant's written statement of defence and his evidence from the record amounted to denial of a right to be heard which constitutes fundamental and constitutional right. The learned counsel cited as authority Article 13(6) (b) of the Constitution of the United Republic of Tanzania and several decisions of the Court of Appeal namely:- (1) Luckson Rutafubibwa (Administrator of the Estate of the late Angelina Bagenyi Versus Erasmus Ruhungu Civil Appeal No 375 of 2021 [2022 TZCA 420; (2) Mufindi Paper Mills Limited Vs Ibatu Village Council and Others [2022] TZCA 597. "Where it was held inter alia that it is a cardinal principle of natural justice that a person should not be condemned unheard but fair procedure demands that both sides should be heard and that in this country natural justice is not merely a principle of common law but it has become a fundamental constitutional right under Article 13 (6) (b) of the Constitution." Submitting in support of the first ground the learned counsel submitted that the learned trial Chairman didn't properly examine, evaluate and analyse the weight of evidence on record. According to the learned counsel there was evidence to the effect that the first Appellant rightful bought the suit land from the second Appellant who is rightful heir of the disputed land. It was further submissions of the learned counsel that the sale between first and second Appellant was witnessed by close relatives and there were no complaints about the sale. The learned counsel submitted that there was evidence to the effect that the first Appellant occupied the suit land undisturbed since 2001, thus it was wrong for the trial tribunal to find for the Respondent. Responding to the submissions of the counsel for the Appellant, counsel for the Respondent submitted that because the second Appellant didn't contest the Application the trial tribunal correctly expunged his evidence. The learned counsel cited Regulation 7(1)(a)of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations 2003 which mandatorily requires Respondent to file his written statement of defence within 21 days of the service and contended that the trial Chairman was right to expunge written statement of defence which was filed out of time without leave and after trial had been concluded. The counsel stated that principle of natural justice cannot be used blindly especially where there is a laid down procedure to be followed by a party who wishes to be heard. Having carefully gone through the records, the grounds of the Appeal, and submissions of both parties, it is my finding that there are two issues calling for determination by this court. The first issue is whether the second appellant was denied the right to be heard and the second issue is whether the trial tribunal failed to properly evaluate the evidence adduced. Starting with the first issue, it is trite law that the right to be heard is a fundamental human right that allows people to participate in decision making process. It is embodied under Article 13 (6) of the Constitution. In the case of David Mushi Versus Abdallah Msham Kitwanga Civil Appeal No 286 of 2016,the Court of Appeal held that the right to a fair trial is a fundamental right enshrined under Article 13 (6) (a) of the Constitution. In the present case the record shows that after the application was duly filed the Appellants (the Respondents therein) were duly served. The First Respondent filed his written statement of defence on 11^^ July 2016 and disputed the Respondent claims and asserted that he was the lawful owner of the suit land having purchased it from the second Respondent (the Appellant herein). The said second Respondent filed his written statement of defence on 15^^ July 2020 after the closure of the trial and when the matter was pending for judgment. As stated hereinabove Regulation 7(a) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations 2003 provides procedural provision in regard to the written statement of defence according to which such defence must be filed by the Respondent within a period of twenty one days, thus the Respondent must file the written statement of defence within the time period of thirty days from the date of service of the summons. Thereafter upon the expiration of this period, the Respondent will forfeit his right to file the written statement of defence and the court cannot allow the same to be taken on record. It follows therefore that the trial tribunal was right to expunge a written statement of defence filed out of time and without leave. By forfeiting his right to file his defence In time and having failed to apply for leave to file it out of time, the second Respondent cannot be heard complaining that he was denied the right to be heard. He was afforded that right and decided not to exercise it and court cannot force him to do so. On the evaluation of the evidence, I have carefully reviewed the evidence adduced before the trial tribunal I note that the Applicant testified undisputedly that he acquired ownership of the disputed suit through a court decree having won a land case against one Abdallah Mohammed who was the Defendant in that case. His assertion was supported by the testimonies of Omari Hassan Kigolaga (AW2), Athman Abdu Kihombe (AW3). On his part, the first appellant gave contradictory evidence, while he and his witness Ramadhan Iddi Mdumke told the tribunal that he purchased the suit land from Rashid Abdallah Kihombe on 23^'' June 2001, his witness Hadija Saidi(DW3)told the tribunal that the sale of the disputed land took place in 2002. No evidence was adduced to prove that the alleged seller was the rightful owner of the land purported to be sold to the first appellant and none among the neighbours of the disputed land who are mentioned in the sale agreement was called to testify to support the first appellant's assertion that he was owning land adjacent to their respective lands. As correctly observed by the trial tribunal it is trite law that he who alleges must prove. The Appellant was duty bound to prove his assertion that he purchased the disputed land from the second Appellant by calling him together with those who witnessed saie agreement being signed as his witnesses. According to the sale agreement tendered in evidence the agreement was witnessed by Mohammed J. Kihombe and Saidi M Kiombe as witnesses of the vendor while Daghe Sadi klKiombe Daniel and Salima S Umeta were witnesses of the vendee. None of theme was called and no reason was given for the Appellant's failure to summon them. In a situation where the vendee doesn't call the vendor and persons who witnessed the sale agreement between him and the vendor, he cannot be said to have discharged his burden of proof of the existence of the sale agreement. Thus, like the trial tribunal, I am satisfied that on the evidence on record the Appellants failed to prove their case on the required standard. This appeal has no merits the trial tribunal findings and decision is upheld and the appeal is dismissed with costs. Order accordingly. f'<^/,P:<ii%^\'iiixX m R- mRUMa ^\x:| f // JUDGE 21.2.2025