anastazia a mpinda administratrix of the estate of the late daniel m njile vs paulo ngoi 2022 tzhc 14671 11 november 2022

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF DODOMA AT DODOMA LAND APPEAL NO. 33 OF 2022 ANASTAZIA A. MPINDA (Administratrix of the estate ................................ APPELLANT of the late DANIEL M. NJILE) VERSUS PAULO NGOI........................................................ RESPONDENT (Appeal from the Judgment of the District Land and Housing Tribunal Singida) (B. J. Shuma — Chairman) Dated 25th May, 2021 In Land Application No. 93 of 2019 JUDGMENT 03rd October & 11th November,2022 MDEMU, J:. In the District Land and Housing Tribunal (the DLHT), the Appellant being the Administratrix of the estate of the late Daniel M. Njile sued the Respondent for trespassing onto her grandfather's land measuring 28 acres located at Mukinya village within Ikungi District, Singida Region. The trial Tribunal dismissed the application for want of merits. It declared the i Respondent the lawful owner of the suit land. Aggrieved by such decision, the Appellant filed this appeal on the following grounds: - 1. That, the judgment and decree of the District Land and Housing Tribunal for Singida at Singida is null and void for not incorporating the opinion of assessors who heard the land in dispute. 2. That, the Hon. Trial Chairman of the Trial Tribunal erred in law and in fact by declaring the Respondent herein who was just an invitee to the suit land as the lawful owner of the suit land. 3. That, the learned trial Chairman erred in law and fact in holding that the Respondent has been in occupation of the suit land for quite a long time where there was no reliable evidence proving on how the Respondent came into occupation of the suit land. It is on those grounds of appeal the Appellant prayed the appeal be allowed; judgment and decree by the DLHT be quashed and set aside and he (the Respondent) be condemned to pay costs of the appeal. 2 On 3rd of October, 2022, the appeal was heard. The Appellant appeared in person whereas the Respondent was represented by Mr. Kasanda Mitungo, learned Advocate. The Appellant adopted his grounds of appeal to form part of his submissions and thereafter asked the Court to allow the appeal. In reply, Mr. Kasanda submitted among other things on the first ground of appeal that, the record of the trial Tribunal at page 25 of the proceedings indicates that, opinion of assessors namely, Mr. Kindulu and Mrs. Kisenge were read in the tribunal on 24th of March, 2021 in presence of parties. He said that, even in the judgement, at page 6 to 7, the Chairman considered opinion of such Assessors. He said therefore that, this ground is unfounded meaning that, sections 23(2) and 24 of the Land Court Disputes Act, Cap. 216 were not violated. In the second ground of appeal, he argued that, in the record of the DLHT, the Appellant and her witnesses did not testify that the Respondent was invited by the late Daniel Njile. Equally, he said, there is no evidence showing that the Respondent refused to vacate. He cited Blacks Law Dictionary, 8th Edition, 2004 at page 2425 where the word invitee is expressly provided. He said, there must be written invitation of which the record is silent to that effect. 3 On the third ground of appeal, he submitted that, in terms of section 110 of the Evidence Act, Cap.6, whoever alleges existance of certain rights, have to prove existance of that right on balance of probabilities. On this, he cited the case of Miller vs. Minister of Pensions (1947) ALLER, 372-374. He argued that, the Respondent proved the case as required by the law. He referred at page 22 of the proceedings where the Respondent testified to have stayed in the suit land since 1959. The suit land was handed to him by his father. He added that, all through in occupation, neither trespasser nor invitee was found there. He argued further that, the Appellant don't know the disputed land, its location and never stated on how her grandfather handled the land to her relatives. It was his further submissions that, most of information the Appellant got were from Patrice Msemwa, which therefore is hearsay. He added that, PW2 Abdulrazaki Msengi stated that, trespass was on 2001, but the suit was filed 2018, almost after 17 years. He said therefore, the DLHT was justifiable to apply doctrine of adverse possession. He cited the case of Yuda Mswima vs. Benadetta Nswima and Two Others, Land Application No. 16/2020 (unreported). On the foregoing grounds, he prayed the appeal be dismissed with costs. In rejoinder, the Appellant stated not to be true that the land was encroached in 2001. He reiterated not to be true that the Respondent was using the land for quite long. His grandfather one Daniel Njile left the suit land to clan members including the Appellant. She said that, it was in 2018 when she noted that the Respondent trespassed onto his land. I have heard parties herein in their submissions and have gone through the entire record of the DLHT. The main issue to be determined is whether the DLHT properly evaluated the evidence in declaring the Respondent herein the lawful owner of the suit land. Starting with the first ground of appeal in which the Appellant complaint is that assessor's opinion were not incorporated in the record; as rightly submitted by Respondent's Counsel, the proceedings of the trial tribunal at page 24 clearly shows that on 27th January, 2021 the case was scheduled for reading assessors' opinion on 24th March, 2021. On the latter date, according to the record, opinion got read. They were written opinion of assessors of Mr. E. Kindulu dated 11th March, 2021 and Mrs. A. Kisenge dated 10th March, 2021. Regarding giving opinion of assessors before pronouncement of judgement, the provisions of Section 23(1) and (2) of the Land Disputes Courts Act provides that:- __ A__ 1. The land District and Housing Tribunal established under section 22 shall be composed of one Chairman and not less than two assessors. 2. The District Land and Housing Tribunal shall dully be constituted when held by a chairman and two assessors who shall be required to give out their opinion before chairman reaches the judgement (emphasis mine). The above cited provisions is read together with Regulation 19(1) and (2) of GN. 174/2003 which read as follows:- 1. The tribunal may, after receiving evidence and submission under regulation 14, pronounce judgement on the spot or reserve judgement to be pronounced later, 2. Nothwistanding (1) the chairman shall, before making his judgement, require every assessor present at the conclusion of hearing to give his opinion in writing and assessor may give his opinion in KiswahiH. (emphasis mine). 6 From the above cited provisions, it is crystal clear that, the law requires the opinion of assessors be taken before pronouncing the judgement. The Court of Appeal in a number of its decisions such as Tubone Mwambeta vs. Mbeya City Council, Civil Appeal No. 286 of 2017 (unreported), Kiwengwa Stand Hotel vs. Abdallah Said Mussa, Civil Appeal No. 13 of 2012 (unreported), just a few to mention, elaborated on the above legal position. In the instant appeal, it is apparent that, on 23rd of March, 2021 the trial Chairman read Assessors' opinion before the parties and recorded that, "The matter is coming for read(sic) of Assessors' opinions. They are ready and read to the parties." It is my considered view in respect to the above position that, the remarks by the trial Chairman is indicative that the law was complied with as assessor's opinion were written and read to the parties and consequently got incorporated in the judgement. For that reason, I find the first ground of appeal to have no merits and I proceed to dismiss it. On the second ground of appeal, the Appellant assertion is that, the Respondent was just an invitee to the suit land. In this, the burden of proof that the Respondent was an invitee rests on the shoulder of the 7 Appellant since it is trite law that he/she who alleges must prove as per section 110 (1) and (2) and 111 of the Evidence Act, Cap. 6. Now, the issue is whether the Appellant discharged that duty. The answer to that question can be ascertained from the record. All witnesses called to support the Appellant's case testified that, the land belonged to the Appellant's grandfather one Mpinda Njije who later moved to Makiungu Village. The suit land was left in the care of his relatives one Hongoa Kulendeya and Msengi Kulendeya on the agreement that, they should not lease or sale. These two persons were in better position to testify on what transpired or what was agreed between the late Mpinda Njije and them (Hongoa Kulendeya and Msengi Kulendeya). As sufficiently amplified in the case of Azizi Abdallah vs. The Republic [1991] T.L.R 71, failure to call such material witnesses in evidence attracts adverse inference be drawn against the Appellant. It was held inter alia that: "The general and well known rule is that, the prosecutor is under a prima facie duty to call those witnesses, who from their connection with the transaction in question are able to testify material facts. If such witnesses are within reach but are not called without sufficient reason being 8 shown, the Court may draw an inference adverse to the prosecution", (emphasis supplied). Back to the case at hand, as said earlier, the Appellant didn't call Hongoa Kulendeya and Msengi Kulendeya who were responsible for taking care of the suit land and said nothing regarding their non calling. That being the case, the trial tribunal was therefore entitled to make adverse inference against the Appellant as failure to call those witnesses, left a lot of unresolved facts. Infact, even the Appellant's evidence is to the effect that his grand father was a caretaker of the disputed land which later passed to her late father. At pages 8-9 of the proceedings, during clarification of questions asked by assessors, the Appellant testified that:- When my grandfather handed the suit land to his fellow relatives, there was no specific time of redeeming the suit land. My grandfather was the caretaker of the suit land upon him vacating, he left the suit land to his fellow who continued to use the suit land, (emphasis supplied). From the evidence of the Appellant, it is clear that the Appellant's grandfather never owned the land. A person cannot have rights of ownership in land merely by taking care. In Britannica Dictionary, a caretaker is defined as a person who takes care of 9 buildings or land while the owner is not there. Therefore ownership rights in land may not legally pass to the caretaker through taking care. In the last ground of appeal, I find also to have no merits. The Respondent testified to have been given the suit land by his father since 1959 measuring fifteen acres. This was supported by the evidence of DW2. Looking at this evidence, I find that, the Respondent's evidence was heavier compared to that of the Appellant which had the following deficiencies; One, it is waiting on how her grandfather acquired the suitland. Two, in the pleadings, the Appellant stated that, her grandfather cleared the bush whereas in evidence, it was stated to have inherited from his father and three, its measurement/size is also questionable. As it was held by the DLHT, it is a principle of law that, long and uninterrupted usage of land should not be interrupted. Since the Respondent proved to have stayed in the suit land since 1959, I find it not proper to interrupt him through orders of the Court. Basing on the above deliberation, I find that, the trial tribunal was entitled to dismiss the application. I consequently uphold the decision of the DLHT. In the circumstance, I dismiss the appeal with costs. 10 11