anchila hilda karwani vs kizito galinoma 2022 tzhclandd 12714 16 november 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISCELLANEOUS LAND APPEAL NO 44 OF 2022 (Originating from the Judgement of the District Land and Housing Tribunal for Kinondoni District at Mwananyamala in Land Appeal No. 50 of 2019 and Land Case No. 190 of 2017 at Wazo Ward Tribunal) ANCHILA HILDA KARWANI...................................... ........ .....APPELLANT VERSUS KIZITO GALINOMA...................................................................... RESPONDENT JUDGMENT 3d & lffh November, 2022 L. HEMED, J. The matter at hand originated from the Ward Tribunal for Wazo where the present Appellant, ANCHILA HILDA KARWANI sued the respondent herein KIZITO GALINOMA for trespass into the suit piece of land located at Madale -Kisauke, Kunduchi within Kinondoni District. The Ward Tribunal deliberated the matter and found the suit landed property to belong to the Respondent. The appellant was dissatisfied by the decision of the trial Tribunal and knocked the doors of the District Land and Housing Tribunal for Kinondoni (DLHT) to challenge the said decision. After scrutiny of the appeal, the 1st appellate Tribunal (DLHT) found the appeal short of merits and dismissed it hence the appeal at hand on the following grounds. i "1. That the District Land and Housing Tribunal Chairperson erred in law and fact on failure to address and analyze properly the grounds raised in the appeal before it by the appellant. 2. That the District Land and Housing Tribunal chairperson erred in law and fact on upholding the ward Tribunal's decision which had unlawfully granted the application to the respondent herein basing on the strength of the testimony and evidence made by a person who had no locus standi to represent the respondent for want ofpower of attorney and or the letters of administration... 3. That the District Land and Housing Tribunal chairperson erred in law and fact on her failure to consider the principal of possession of superior title that could enable her rebut the Ward Tribunal's decision since the record shows that the appellant bought the disputed property in the year 2001 whereas the respondent purported to have bought the same in the year 2004 three years later..." 2 The Appeal at hand was heard exparte following the none appearance of the Respondent even after effecting substituted service by publication on 31st October, 2022 in Mwananchi News Paper. The appellant was at all the material time represented by Mr. Philemon Mujumba learned advocate. Submitting on the 1st and 2nd grounds, Mr. Mujumba stated that the District Land and Housing Tribunal failed to analyze properly the grounds raised before it hence failed to find that the person who acted for the respondent had no locus standi to appear before the trial tribunal. He asserted that, the person who appeared before the trial ward tribunal was one Geofrey Kizito Galinoma while the actual respondent was Kizito Galinoma. According to Mr. Mujumba, it was wrong for the Ward tribunal to decide in favor of the respondent herein basing on evidence of the stranger to the case one Geofrey Kizito Galinoma. Mr. Mujumba averred further that, if the DLHT would have analyzed the said evidence, it could find that the entire judgment of the trial Tribunal was wrong because the son of the Respondent appeared without having the power of Attorney from his father or letters of administration showing that he was the legal representative of his deceased father. 3 Regarding ground 3 of appeal, it was argued that the appellant purchased the suit property in the year 2001 and the respondent who never appeared alleged to have purchased the property in the year 2004. It was the view of the appellants advocate that it was not proper to deny right of ownership over the suit land to the person who purchased it earlier. Having heard the submissions from the appellant's advocate, let me start with the question of locus standi of the person (one Geofrey Kizito Kalinoma) who appeared instead of the Respondent during trial in the ward tribunal. It is very clear from the proceedings of the ward Tribunal for Wazo, in SHAURI NAA^Il^Y) that, the appellant herein had instituted the case against one Kizito Galinoma. However, during trial, Geofrey Kizito Galinoma, the son of the respondent appeared and adduced evidence instead of the respondent. The question is whether it was proper in the eyes of the law. Mr. Mjumba argued that, Geofrey Kizito Galinoma appeared in the trial lower tribunal without having the power of attorney (if the respondent is still alive) or the letters of administration of estate (if the respondent is dead). 4 The proceedings of the trial tribunal do not show if the respondent was reported to be dead. After all, it is the appellant who instituted the proceedings at Ward Tribunal for Wazo after having satisfied himself that, the respondent was alive as in law, he could not have instituted a case against the deceased. As to the proceedings in the DLHT, I have noted that the respondent appeared in person. For example, he appeared on 19/9/2018 where it was ordered for the matter to be disposed by way of written submissions. In the circumstance of the case at hand I hold that the respondent was alive and that one Geofrey Kizito Galinoma was a mere representative of the respondent in the proceedings before the trial tribunal and the appellate tribunal. The 2nd question is whether there was a need for a power of attorney? Representation in ward tribunals is guided by section 18. -(2) of the Land Disputes Courts Act, [Cap.216 R.E.2019], which states thus: "(2) Subject to the provisions of subsections (1) and (3) of this section, a Ward Tribunal may permit any relative or any member of the household of any part to any proceeding, upon request of such party to appear and act for such party" 5 The above provision is couched to avoid too much formalities in ward tribunals. From the above stated provision, a relative or member of the household does not need a Power of Attorney to appear and act for a party in proceedings before the Ward Tribunal. The procedures to permit such relative or member of the household in the proceedings is not provided purposefully as the legislature intended the ward tribunal to apply its wisdom on case-by-case basis in permitting relatives or members of house hold to represent a party before it. In other words the legislature intended to get rid of all forms of legal technicalities and that is why under section 18 of the Land Disputes Courts Act (supra), appearance of advocates in ward tribunals is prohibited. I do not find merits on the ground of locus standi as the person who appeared to act for the respondent in the ward tribunal was legally justified to appear because he was a member of the household of the respondent. Having been permitted by the ward Tribunal to act as member of the household it was thus right for the ward Tribunal for Wazo to receive evidence from Geofrey Kizito Galinoma. Grounds 1 and 2 are thus short of merits. 6 As to ground 3, the appellant is blaming the District Land and Housing Tribunal for failure to consider the principal of possession of superior title that could enable rebut the ward Tribunal's decision on the reason that the appellant bought the disputed property in the year 2001 whereas the respondent purported to have bought the same in the year 2004. I have gone through the records of the ward Tribunal in order to examine the quality and weight of evidence adduced by both parties to support their cases. From the evidence on record, both parties claimed to have purchased the suit piece of land from different vendors. In the circumstance of this case, each party had the duty to prove whether the person who sold the land to him had a good title for purposes of determining to whom between the parties good title had passed. The appellant, apart from stating that he purchased the suit land from one Pantaleo Sebastian in 2001, he paraded one witness, who adduced to be the caretaker of the piece of land of the appellant. The said witness of the appellant adduced to the effect that he was not aware on how the appellant acquired the suit land. The appellant never called the vendor or witness to testify on the title of the vendor over the suit land prior to selling it to him. 7 On his part, the respondent called five 5 witnesses who testified that the respondent purchased the suit piece of land in 2004 from one Bind Salumu Nalengwa who was in occupation of the said land since 1980. The evidence of one Hemed Salum Nalengwa the brother of the late Bind Salum Nalengwa and Msafiri Mohamed Salum, the son of Bind Salum Nalengwa unequivocally proved the title of the late Bind Salum Nalengwa prior to disposition of it to the respondent in 2004. In the case of Hemed Said vs Mohamed Mbilu [1984] T.L.R 113, it was held that: "according to taw both parties to a suit cannot tie, but the person whose evidence is heavier than that of the other is the one who must win,,." In the present case it is obvious that evidence which was adduced in favour of the respondent's case was heavier than that of the appellant, it was justifiable for the respondent to win. The appellant did not call the vendor or any other witness to prove the title of the vendor. The Court in Hemed Said vs Mohamed Mbilu {supra}, was of the view that: - "Where, for undisclosed reasons, a party fails to call a material witness on his side, the court is entitled to draw an inference that if the witness were called they would have given evidence contrary to the party's interests". 8 In the present case, the appellant did not call the material witness to prove title of his vendor of the suit land. It was thus correct for the trial tribunal to presume that if the said witnesses would have been paraded in court they could have adduced evidence contrary to the interest of the appellant. From the evidence on record, the person who sold the land to the respondent had a good title to pass to the respondent. It follows therefore that, ground three has no merits either. In the final analysis, I find that the decisions of the two tribunals below were correct. I proceed to confirm the said decisions. Appeal is dismissed with no order as to costs. It is so ordered. DATED at DAR ES SALAAM this 16th day of November, 2022. ..HEMEE JUDGE JujL V COURT: Judgment is delivered in the presence of Mr. Philemon Mjumba advocate of thp^pp@l^r^>Right of appeal explained. JUDGE 16/11/2022 9