LIKINGA for tanzlii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA LAND APPEAL NO. 29573 OF 2024 (Originating from the decision of the District Land and Housing Tribunal for Chato in Land Application No. 12 of 2023 dated 8 October 2024 before A.F Kapinga-Chairperson) AUGUSTINE LIKINGA---------------------------------------------------------- APPELLANT VERSUS MANUGWA MISALABA (The Administrator of the Estate of the Late) NYANZA LUSANA------------------------------------- RESPONDENT JUDGMENT Date of last Order: 14/01/2025 Date of Judgment: 06/02/2025 K. D. MHINA, J. This is the first appeal. It stems from the District Land and Housing Tribunal ("the DLHT") for Chato at Chato in Land Application No. 12 of 2023, whereby the respondent in the instant appeal, inter alia, claimed against the appellant and nine others to be declared a lawful owner of 6.5 acres of unsurveyed land located at Mwabakali Hamlet in Kasozabakaya Village within Biharamulo District, general damages of TZS—7,000,000/= and costs of the suit. 1 The brief facts that ignited the institution of Application No. 12 of 2023 at the DLHT are that the respondent alleged that in 2017, she discovered that 18 people, including the appellant, had invaded the suit land. After that discovery, the respondent decided to complain to the Hamlet Chairman. Thereafter, eight trespassers vacated the suit land. However, ten (10), including the appellant, remained in the suit land. Later, the respondent filed the case at the DLHT against the ten (10) remaining trespassers. On his side, the appellant alleged that he owned one (1) acre within the suit land which he was given by his late in 1974 during “Operation Vijiji”. He also alleged that his late father died in 2022, and was buried in the suit land. After a full trial, the DLHT decided the dispute in favour of the respondent by declaring her as the lawful owner of the suit land. Undaunted, the appellant is now approaching this Court by way of appeal with the following four (4) grounds of appeal; 2 1. The trial tribunal erred in law and in fact to entertain the suit which was filed out of time of 12 years against the appellant. 2. The trial chairman erred in law and in fact to change the statement of the appellant's witness Mr. Peter Paulo. 3. The trial court erred in law and fact to pronounce the decision which is illegality and irregularities which caused a miscarriage of justice to the appellant. 4. The trial tribunal erred in law and fact in favour of the first respondent while the respondent failed to prove the case in the balance of probabilities. The appeal was argued orally. The appellant appeared in person unrepresented. On the other hand, the respondent was represented by Ms. Pelina Maxon, a learned advocate. In supporting the appeal, the appellant on the first ground, submitted that the case was filed at the DLHT while it was out of time. He informed this Court he lived in the suit land for about 50 years. On the second ground, he complained that the evidence of the Village Chairman recorded in proceedings was inconsistent with what he said at the hearing at the trial. 3 Regarding the third ground, he submitted that the evidence of his witness, Sospeter Benge recorded as per records was also inconsistent with what he stated at the trial. Also, his evidence was not considered. The appellant had nothing to add in his fourth ground of appeal. In response, Ms. Maxon responded to the first ground of appeal by submitting that in law according to section 5 of the Law of Limitation Act, the time limit started to run when the cause of action arose. She explained that in the impugned judgment, the DLHT Chairman clarified that the respondent discovered that the suit land was trespassed in 2017. Therefore, filing the dispute in 2023 was six years, while the time limit for filing a land dispute is 12 years. Therefore, the case was filed within time. Furthermore, in 2017 the respondent reported the trespass to the local village authorities, whereby the matter was referred to mediation and the trespassers were ordered to vacate. Later, after the trespassers failed to vacate, the respondent referred the dispute to the Ward Tribunal and later to the DLHT. 4 Regarding the second ground of appeal, Ms. Maxon stated that what was alleged by the appellant was not true and the appellant did not say or indicate which evidence was changed. She further submitted that at the trial the witness Peter Paulo stated that he did not know when the invaders trespassed into the suit land. Further, when the land was allocated, he was not present. He said he got the information regarding the suit land from the former village chairman. Ms. Maxon further submitted that the proceedings of the DLHT and judgment are sacred and she substantiated her submission by citing Upe s/o Ntuta vs. The Republic, Criminal Appeal No.129 of 2022, HC -Moshi (Tanzlii) at pages 5 and 6. Therefore, she said it was not proper for an appellant to allege that his witness evidence was changed by mere words. Countering the third ground of appeal, she submitted that the appellant did not even point out the illegalities and irregularities he alleged. Therefore, the DLHT made the correct decision. The appellant’s allegation that the evidence of his witness was dismissed cannot be an irregularity or illegality. 5 In the last ground of appeal, Ms. Maxon submitted that the respondent proved her case on the balance of probabilities. In the impugned judgment, the DLHT Chairman held that the respondent proved how she acquired the suit land, including tendering of the document, i.e. exhibit P1. Further, the evidence of the respondent was corroborated by other witnesses. On the other hand, the appellant failed to tender any document on how he acquired the suit land. Also, his witnesses did not know how he acquired the land. Therefore, the DLTH was correct in its decision. Having objectively gone through the grounds of appeal, the submissions by the parties and the entire records of appeal, I find it necessary to start the first ground of appeal which touches on the issue of limitation. On this, the entry point is Item 22 of the Schedule to Law of Limitation Act Cap 89 R.E 2019 (LLA) which simply provides that; “suit to recover land -twelve years" Therefore, based on Item 22 to the First Schedule of the LLA, it is quite clear that the period of limitation for instituting proceedings for the suit to 6 recover land is 12 years. Another important aspect in this ground is the question of when the computation of 12 years starts to accrue. According to section 5 of the LLA as cited by Ms. Maxon, the computation of time accrues from the date on which the cause of action arose. The section reads; 5. Subject to the provisions of this Act the right of action in respect of any proceeding, shall accrue on the date on which the cause of action arises" The applicability of section 5 is well-expounded in Salim Lakhani and two others vs. Ishfaque Shabiri Yusufali (as an administrator of the Estate of the Late Shabir Yusufali), Civil Appeal No. 237 of 2019 (Tanzlii), where the Court of Appeal held that; "Essential s. 5 of the Limitation Act prescribes that the period of limitation in relation to any proceedings shall commence from the date on which the right of action for such proceedings accrues. The law is further settled that; the right of action begins to run when one becomes aware of the said transaction or act which is complained of". Therefore, it is imperative to note that it is a settled law right of action 7 accrued or began to run when a person becomes aware of the infringement, transaction or act of which he/ she is complained of. In the instant appeal, the records of the trial DLHT indicated that the respondent became aware of the trespass in the year 2017. Firstly, in the pleadings (application) where in paragraphs 6(a) (vi) and (xi) it was pleaded that the respondent became aware of the “invasion” in 2017. Secondly, when the respondent testified as PW1, she stated that it was in 2017 that she discovered her land was trespassed. After that discovery, she reported the matter to the Hamlet Chairman thereafter, the trespassers were ordered to vacate. Some vacated, but some, including the appellant, remained. Thereafter, the matter was referred to Nyamigogo Ward Tribunal, whereby mediation failed and then the respondent filed the matter at Chato DLHT in 2023. This evidence was not refuted by the appellant when he testified as DW1. Therefore, from the pleadings and evidence presented at the trial, it is 8 clear that the respondent became aware of the trespass in 2017 and she referred the matter to DLHT in 2023, six years later. From the above findings, it was obvious that when the matter was referred at the DLHT, it was within time as stipulated under item 22 to the First Schedule of the LLA. Thus, the 1st ground of appeal is devoid of merits and must fail. On the second ground that the trial chairman erred in law and in fact to change the statement of the appellant’s witness Mr. Peter Paulo, this should not detain me long. First, court proceedings are inviolable, and their integrity is a matter of great importance. This is because they surmise what transpired in court. In the cited case of Upe Ntuta (Supra), this Court (My sister Mongela J) held that; “…the law is settled to the effect that court records are taken to be sacrosanct. They are believed to reflect what exactly transpired in court relevant to the case and thus cannot be easily impeached”. This is also the position of the Court of Appeal in Alex Ndendya vs. The 9 Republic, Criminal Appeal No. 207 of 2018, (Tanzlii) whereby the Court held: “It is settled law in this jurisdiction that a court record is always presumed to accurately represent what actually transpired in court. This is what is referred to in legal parlance as the sanctity of the court record.” Second, the appellant failed to point out what was changed from the evidence of his witness, Peter Paulo. What actually Peter Paulo testified at the trial and what was recorded by the DLHT, and if there were differences, what were the differences. Therefore, in such circumstances, the complaint by the appellant in the 2nd ground of appeal remains unsubstantiated. There is no evidence that the evidence of Peter Paulo was changed. Furthermore, even if we assume that the appellant was able to point out his version of Peter Paulo's evidence, different from what is contained in the proceedings, in my view, still courts are bound by the proceedings on record, and the departure of this principle means to include extraneous matters in a case which is not allowed in law. See. Lim Han Yung and 10 Another vs. Lucy Treseas Kristensen, Civil Appeal 219 of 2019 (Tanzlii) Therefore, the 2nd ground of appeal lacks merit and it is dismissed. Regarding the third ground of appeal in which the appellant is faulting the trial DLHT decision that it erred in law and fact by pronouncing the decision which contains illegality and irregularities which caused the miscarriage of justice to the appellant. In his submission, he pointed out two issues and termed them as illegalities and irregularities. One, the evidence of his witness, Sospeter Denge recorded as per records was also inconsistent with what he stated at the trial. Two, the evidence of that witness was not considered. Flowing from above, this ground also should not detain me long. This is because, in the first issue, the complaint is the same as the 2nd ground of appeal. Therefore, for the same reasons as in the 2nd ground of appeal, the issue of evidence of Sospeter Denge that it was changed is devoid of merits and therefore, cannot constitute illegality or irregularity. On the issue that the evidence of Sospeter Denge was not considered, I revisited the impugned judgment and found that the evidence of Sospeter 11 Denge, who testified as DW3, was considered in the impugned judgment (as indicated on the third to the last page). However, after the scrutiny, the DLHT did not accord any weight to that evidence. The DLHT held that the evidence of Sospeter Denge was devoid of merits. Therefore, in law, non -non-accordance of weight to the evidence of the witness is not an issue of illegality and illegality. This is a matter of weight of evidence and proving a case in a required standard by the law. Flowing from above, the third ground of appeal lacks merit, thus it is dismissed. On the last ground of appeal, that the respondent failed to prove the case on balance of probabilities, I have the following; In the determination of this ground, I will invoke the principle laid in the cited case of Makubi Dogani vs. Ngodongo Maganga, Civil Appeal No. 78 of 2019 (Tanzlii), where the Court of Appeal held that:- "... the first appellate Court it is entitled to re-evaluate the entire evidence on record reading it together and subjecting it to a critical scrutiny and if, warranted, arrive at its own decision." 12 In evaluating the evidence on record, I found that the evidence of the respondent (PW1) and her witnesses (PW2 and PW3) both testified that the suit land was earlier the property of the respondent’s mother. After she passed away the suit land “lands” in the hands of the respondent as evidenced by exhibit P1. On the other hand, the appellant testified that he was given the land by his late father who was given that land during “operation vijiji” in 1974. However, he did not tender any exhibit and neither of his witnesses knew or testified how the appellant acquired the suit land. In that regard, I don’t have any reason to differ from the DLHT Chairperson's holding that the respondent proved how she acquired the suit land including the tendering of document i.e. exhibit P1 and that her evidence was corroborated by other witnesses. On the other hand, the appellant failed to tender any document and prove how he acquired the suit land. Therefore, from the above discussion, it is clear that the trial DLHT properly and reasonably evaluated the evidence and arrived at the correct 13 decision. Thus, the last ground of appeal also is devoid of merits. From the above discussion, in totality, the appeal lacks merits; both grounds of appeal fail to persuade this Court to interfere with the decision of the trial DLHT. Consequently, I dismiss the appeal for being devoid of merits with costs. It is so ordered. K. D. MHINA JUDGE 06/02/2025 14 Court: The right to appeal is fully explained to the parties. K. D. MHINA JUDGE 06/02/2025 15 16