atibu mohamed kitutu and others vs mohamed ally and others 2021 tzhclandd 13 26 february 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 233 OF 2019 {Originated from the decision of The District Land and Housing Tribunal for Mkuranga in Land Application No. 14 of 2016) ATIBU MOHAMED KITUTU ............................................... 1st APPELLANT SAIDI MOHAMED MUUNILWA.................................................2nd APPELLANT ALLY MUUNILWA ............................................ 3rd APPELLANT ABDALLAH MKETO ............................................... 4TH APPELLANT ATIBU MOHAMED MUUNILWA .......................................... 5™ APPELLANT MUSA MOHOMED MUUMILWA .............................................. 6th APPELLANT RAJABU MUSA MUUNILWA ................................................. 7th APPELLANT RAMAZANI OMARI M BOMBWE ......................... ................... 8th APPELLANT JAMAL HATIBU MUUNILWA ............................................... 9th APPELLANT OMARI HAMISI MSEKETU................................................ 10™ APPELLANT VERSUS MOHAMED ALLY .............................................................. 1st RESPONDENT BWANA LIPALA AND 26 OTHERS................................... 2nd RESPONDENT JUDGEMENT ON APPEAL MAIGE, J This appeal is against the decision of District Land and Housing Tribunal for Mkuranga ("the trial tribunal"). In the said decision, the trial chairperson (Hon. Chairman R. Mwakibuja) established as a fact that, the Appellants who were the claimants as the trial tribunal did not prove their case in the required standard. He assigned two reasons based on her assessment of evidence. First, they did not establish the size and boundaries of the suit property. Two, they have not established that, they and/ or their predecessors in title had been in actual possession of the suit property i from 1974. In the memorandum of appeal, the appellants have raised the following grounds of appeal:- 1. That the hounarable Chairperson grossly erred in Law and facts for wrongly recorded and hold the PW1 testified the land is over 600 acres which trespassed by the respondents contrary to what the Appellant testified and addressed to the Tribunal hence delivered viciousjudgment against o fAppellants. 2. That the honourable Chair Person erred in law and fact to hold that the Appellant failed to mention boundaries o f the suit land while the Chairperson did not visit at the area o f dispute. 3. That the Chairperson erred in law and fact to ignore the sufficient evidence o f the Appellants o f which proved that the suit land was inherited from their grandfathers and same has been used without any interruption from any person until 2010. 4. That the honourable Chairperson erred in law and fact for failure to record in the proceedings the opinion o f the assessor. 5. That the honourable Chairperson erred in law and fact containing hearing the matter while the 1st respondent and Shija Mabaya had been died without consider that there was a need to issue a summons to compel the administrator o f Estate or relative to appear before the Tribunal. 6. That generally the honorable chairperson grossly failed evaluate analysis and examine the evidence o f all parties. At the hearing, parties appeared in persons and were not represented. With my direction, the appeal was argued by way of written submissions. In their submissions, I have noted, the Appellants abandoned the fourth ground. In support of the first ground, it was submitted that, while the record of the trial tribunal is very clear on the fact that PW1 described the suit property as 100 acres land, in his judgment, the trial tribunal wrongly observed that the same was described as 600 acres land. They referred the court to page 12 of the proceedings of the trial tribunal wherein the testimony of PW1 is reflected. On the second ground, the complaint is that, the trial chairperson was wrong in holding that, the appellants had failed to identify the boundaries of the suit property. The attention of the Court was drawn to page 12 of the proceedings of the trial tribunal wherein PW1 testified on that fact. They submit further that if the trial tribunal visited the locus in quo, they would have established the same. On the third ground, it is contended that, there was adduced sufficient evidence to establish that the suit property belonged to the appellants, one of such evidence being existence of cemetaries of the clan members of the appellants. On the fifth ground, the trial tribunal is blamed for proceeding with the trial despite being informed, on 19/11/2017, on the death of the 33rd respondents one Shija Mabaya. They submit that in the absence of the administrator of the estate of such a person, the suit should have not proceeded. In their view therefore, the judgment and whole proceedings are null and void. On the sixth ground, the trial tribunal is faulted in not examining the evidence of each and every witness before coming to its conclusion. He relied on the authority of the Court of Appeal in Stanslaus Ruaaba Kasusura and the Attorney General V, Phares Kabuve (1982^ TLR 338 where it was held; "77/e Trial Judge should have evaluated the Evidence o f each of the witness assessed their credibility and made a finding on the contended facts in issue. He did not do so" In their submissions in reply, the respondents submitted that, the trial tribunal was quite right in dismissing the suit by the appellant. On the first ground, it was their submissions that, the factual finding of the trial tribunal was not wrong. It was based on the appellants' own testimony on the record. They referred the Court on the testimony of the second appellant on cross examination by the 9th and 13th respondents where he conceded to be ignorant of the size of land that had been trespassed unto. On the second issue as to failure to describe the boundaries of the suit property, it was their submissions that in accordance with the evidence on the record there is a total failure to establish that aspect. On the third ground, the respondents submitted that, the trial tribunal was quite correct. There is, they submit, no concrete evidence to establish that the respondent or either of them inherited the suit property from their fore parents as alleged. To the contrary, it is submitted, there is evidence that, the respondent had been using the same since 2010 without any interruption. The submitted further that, the appellants' testimony was based on hearsay which could not be relied upon. They submitted therefore that, there is evidence that the appellants had abandoned the suit property for more than ten years. On the fourth ground, it is their submissions that, the said Shija expired in 2014. It was two years before the institution of the suit. The respondents wonder whether the complaint has any logic. On the fifth ground, it is their submissions that, the trial tribunal correctly and properly assessed the evidence contrary to the appellants assertion. They therefore urge the Court to dismiss the appeal with costs. I have considered the rival submissions in line with the judgment and proceedings of the trial tribunal. I am in agreement with the respondents that this appeal is without merit. If I can start with the first ground, there is, no basis to fault the trial chairperson in her finding. There is evidence from the appellants to the effect that the suit property was 600 acres. There is as well evidence from the appellants suggesting that, they were not certain with the size of land which is alleged to have been encroached. The second ground is as well devoid of any merit. Failure to describe the boundaries of the suit property is not only in evidence. More importantly, it has a foundation from the pleading. The description of the suit property is pleaded in paragraph 3 of the Application. The elements of boundaries is not there. In the absence of factual foundation from the pleadings, it is obvious that the same would not be established in evidence. That has been the case and I do not see if it was relevant for the Court to visit the locus 5 in quo. For evidence from the focus in quo is not in depended to demonstrate what has been testified in court room. The lamentation on the assessment of evidence is also without justification. The trial chairperson properly assessed and applied the evidence. The claimant as the trial tribunal were the appellants. In paragraph 6(a) (vi) of the Application, the appellants admit in their own words that, they respondents trespassed unto the suit property in 2010. There is nothing in pleadings to suggest that the appellants ever regained vacant possession of the same. The suit property was filed in 2016. There is an interval of about 16 years in between. Obviously therefore, the appellants could not be entitled a decree of trespass against the respondents. This would capture the 6th ground as well. On the issue of the case proceeding after the death of the said Shija, it is totally irrelevant. In the application at the trial tribunal thesaidname is not impleaded. So in the judgment of the trial tribunal. In the final result, the appeal is hereby dismissed with costs. DatraJ^tj Dar es Salaam on 26th day of February 2021. MAIGE I, MAIGE, 8* JUDGE, 26/2/2021 6 Date 26/ 2/2021 Coram: Hon. A. Chugulu - DR. Appellant: Present in person Respondent: Present in person RMA: Bukuku COURT: Judgment delivered this 26th day of February, 2021 in the presence of japplicant in person and respondent in person. Right of Appeal