bahati bilal

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA LAND CASE APPEAL NO. 39 OF 2023 (Originating from the decision of the District Land and Housing Tribunal for Tabora in Land Application No. 81 of2020) BAHATI BILALI.................................. ....................... ..1st APPELLANT KULWA HARUNA....................... ......................... ...........2nd APPELLANT NASIBU JOHN..................................................................................3rdAPPELLANT MOSHI ALLY................................. ...............4TH APPELLANT DOTHO KIMWAGA...................... .....5th APPELLANT MASA6ATA FUNDIKIRA........................... ...................6th APPELLANT VERSUS MAHAMUDU JUMA JUMANNE (Administrator of the estate of the late Juma Jumanne)___ ................................................. RESPONDENT JUDGMENT Date of Last Order: 15/08/2024 Date ofDelivery: 20/08/2024 MANGO, J. This appeal is an appeal from the decision of the District Land and Housing Tribunal for Tabora in Land Application No. 81 of 2023 instituted by i the Respondent contesting ownership over a parcel of land situated at Itetemia Village within Tabora Municipality. A brief background of this dispute as it can be discerned from record, provides that, Respondent claims that the suit land belongs to his late father. The Respondent's claims are contested by the 6th Appellant, the successor Chief of Unyanyembe entrusted with, among other issues, protection of chiefdom properties. According to the 6th Appellant, the land in dispute forms part of the land belonging to the chiefdom. Thus as the chief, he authorized the third Appellant to sell part of the suit land to the 2nd and 4th Appellants. The Respondent alleges that the 2nd and 4th Appellants are trespassers to his land and that the 3rd and 6th Appellant facilitated the alleged trespass. After a full trial, the trial tribunal decided in favour of the Respondent, and declared Appellants to be trespassers into the land in dispute. The trial tribunal also ordered the Appellants to hand over title deeds of the land in dispute to the Respondent and vacate the land. Dissatisfied by the decision of the District Land and Housing Tribunal, the Appellants preferred the appeal at hand. Their memorandum of appeal contains five grounds of appeal which are hereby reproduced as follows: - 1. That, the Tria! Tribunal grossly erred in law and fact (s) to held the in favor of the Respondent while for failure to properly construe the customary leasehold (Enfranchisement)), Act No 47 that, same were enacted to grab the lands that was under possession of chiefdoms without adequate compensation thereto something that are dear misconstruction of the same, hence arrived at wrong findings. 2 2. That, the Trial Tribunal grossly erred in law and fact (s) to held in favor of the Respondent without giving due regards to the evidence ofDWl whose family ofchiefdom was in occupation of the disputed land since 1830 and the said land was actually in their occupation up to date something that was never during the trial tribunal proceedings; 3. That, the TrialTribunal grossly erred in lawand fact (s) to held in favor of the Respondent while he has failed to prove his case on how his late father acquired the disputed land, his allegation are worthless due to neither the seller nor the witnesses who was even mentioned to witnesses the transaction, worse enough even the consideration was never mentioned at all to that effect; 4. That, the Trial Tribunal grossly erred in law and fact (s) to held in favor of respondent without giving due regards to the testimony of the Respondent's witnesses to wit DW3 one Bahati Bilali whose testimony was weightier than that ofPW2, hence arrived at the wrong conclusion, 5. That, the Trial Tribunal grossly erred in law and fact (s)to held in favor of the Respondent without considering the tendered and admitted exhibits DI, D2, D3, D4, D5, D6, D7 and D8 that all proved the ownership of land to the Appellants than the Respondent who had none, hence arrived at the wrong findings. During hearing of this appeal, the Appellants were represented by Mr. Hassan Kilingo learned advocate while the Respondent was represented by Mr. Kelvin Kayaga, learned advocate. Hearing proceeded viva voce. On the first ground of appeal, Mr. Kilingo argued that, the District Land and Housing Tribunal erred in law and facts by its failure to interpret correctly 3 the provisions of the Customary Leasehold (Enfranchise Act) Act 47 of 1968. He is of the view that, the tribunal construed the purpose of Act No. 47 of 1968 to be dispossessing chiefs of their land. He referred the Court to page 10 of the judgement and argued that, the Trial Chairperson relied on section 4 of the Act to hold that, all lands owned under customary land tenure, the right of occupancy seized. The land so owned shall be vested in the tenants of the chiefs. It is his opinion that, title over the land so owned was not revoked by the operation of the law. The learned counsel conceded that, the law removed the powers of the chiefs to collect taxes but it did not automatically revoke their ownership over the land that they customarily own. He also referred the Court to the testimony of DW1, the 6th Appellant and argued that, the 6th Appellant stated clearly that, the chiefs remained with their houses and their land after a number of laws has been passed including the law that banned chiefdom in Tanzania. He alleged further that, the Appellants tendered several exhibits which establish that, the chiefdoms title over the land was not revoked. On the second and third grounds of appeal, the learned advocate argued that the Trial Tribunal did not consider weight of evidence given by DW1, Chief Msagata Fundikira as it appears at page 44 of the typed proceedings. According to his testimony the disputed land was part of the land forming part of Itetemia chiefdom since 1930. At the time he became the chief, in 2008, the land was 20 acres. The land in dispute forms part of the 20 acres. The learned advocate is of the view that, the testimony of the 6th Appellant 4 was so strong compared to the Respondent. He pointed out weaknesses in the Respondents testimony before the tribunal. In this he highlighted two issues, first the contradiction between the contents of the Respondent's application before the Trial Tribunal and his oral testimony regarding the size of the land. Second the manner in which the Respondent's father acquired title over the land. The Appellants' counsel submitted that, in his application before the trial tribunal, the Respondent alleged that the suit land is 2 acres but in his testimony before the Court, he stated that the land measures 57x 56 acres only. Citing the case of Makori Wassaga vs Joshua Mwaikambo and Another [1987] TLR 88, he argued that parties are bound by their pleadings and that the contradictions between pleadings filed by the Respondent and his oral testimony goes to the root of the dispute. Thus the trial tribunal ought to have ruled against him. It was the Appellants' counsel contention that, the Respondent failed to establish his title over the disputed land. He linked such failure with the Respondent's testimony as to how his late father acquired ownership over the land. He argued that, the Respondent stated that he purchased the same from an elderly woman who he does not remember her name. Despite the claims that the land was purchased, the Respondent never tendered any sale agreement. The learned counsel concluded that with such evidence, the Respondent cannot be considered to have proved his ownership over the land in dispute. 5 On the 4th ground of appeal, the learned counsel reiterated his submission on the second ground of appeal but this time he compared the testimony of Bahati Bilal and PW2 Hamisa because the two are the elder witnesses in this matter thus, he presumed their testimony regarding ownership of the land in dispute would have assisted the tribunal in determining the dispute. In brief, he considered the testimony of Bahati Bilal to be stronger than that of Hamisa who did not stay in the village continuously and she is not aware as to how the Respondent's late father acquired ownership over the land in dispute. He concluded that, the Appellants' case weighs more than the Respondent's case, and the Appellant ought to have won the case as stated in the case of Hemedf Saidi vs Mohamedi Mbilu [1986] TZHC 15 (5 July 1986). Similar arguments were made in respect of the 5th ground of appeal in which the Appellants' counsel challenged the Respondent for his failure to tender any documentary evidence regarding the alleged purchase of the land by his late father. In his reply submission Advocate Kayaga for the Appellant responded to the first ground of appeal separately and submitted on the remaining grounds of appeal collectively. On the first ground of appeal, in which the Appellant challenges application and general interpretation of Act No. 47, the Respondent's counsel is of the opinion that, the Trial Tribunal correctly interpreted and applied the Act. He refereed the Court to page 10-11 of the Trial Tribunal's decision and argued that, the chairperson explained well the application of the law and directed his mind to section 4 and 5 of the Act. He added that, in brief the two 6 provisions freed the land which was owned under customary laws. The land was not acquired under the land acquisition Act. Under Act No. 47 there is no acquisition but freed the land from the application of Mtemiship jaws. When the Court made the decision on the two provisions, it responded to the issues raised by the Appellant as they appear at page 49 line 5-6 of the typed proceedings. DW1 explained that the land had a certificate of title which vests ownership over the land in the chief. The Tribunal considered exhibit D5 in which the land in the document D5 was not described. The Court quoted DW1 in his statement that D5 concerns the state house and not the land as it appears at page 6 of the judgement. Then the DLHT construed the provisions of Act No. 47 to mean that the chief has no powers to grant right of occupancy and correctly ruled in favour of the Respondent. Citing the Case of Farah Mohamed versus Fatuma Abdallah [1992] TLR 205, the learned counsel argued that, the 6th Appellant had no good title to pass to the 3rd Appellant. Thus, the Trial Tribunal correctly ruled in favour of the Respondent. On the 2rid to 5th grounds of appeal, the learned counsel submitted that, the Trial Tribunal correctly held in favour of the Respondent's after it considered evidence tendered in respect of key issues in this matter. He submitted on the said issues as follows. The first issue was whether the Respondent's father had land on the disputed land. The Trial Tribunal after considering evidence, it found that the Respondent's father had once resided in the disputed land. Given the fact that there were two sides that were contesting then the decision was based on the weight of the testimony of the two sides. 7 The tribunal was correct when held that the house of the Respondent's father was at the disputed land as it appears at page 11 para 3 of the decision of the Trial Tribunal. The second issue is non-existence of the written agreement on the purchase of land by the Respondent's father, learned advocate submitted that, it is trite law that, agreements are not established by written agreements only. Agreements can be established by conduct of the parties capable of establishing the case on balance of probabilities. To cement his argument he cited the decision of the Court of Appeal of Tanzania in the case of Junior Constructions Co. Ltd vs Mantrack Tanzania Ltd DSM Civil Appeal No. 81 of 2021. He also pointed out that, there is no requirement of having written agreement for transfer of unsurveyed land. He added that, the Court should consider that, the transaction dates 1970 before enactment of the Land Act and the Village Land Act. PW2 also conceded that the Respondent's father was in the land in dispute as it appears at page 37 of the typed proceedings. He is the view that, contradictions in the PW2's testimony is minor and it does not go at the root of the case as it did not rebut the truth that the Respondent's father was in the land in dispute. He added that, title claimed by the Appellants traces their roots from the 6th Appellant. Now that the District Land and Housing Tribunal observed that, the 6th Appellants had no title over the land then all Appellant's claim deserves to fail. The case at hand based on credibility of the witnesses then it is the trial Court that is better positioned to assess the same as it was held 8 by the Court of Appeal of Tanzania in the case of Ally Abdallah Rajab vs Saada Abdallah Rajab and others [1994] TLR 132 @135. In his brief rejoinder, the Appellants7 counsel reiterated his submission in chief. Having gone through the oral arguments from both parties and closely examined the record and the grounds of appeal, in determining whether this appeal has merit, I will start with the third ground of appeal which carries the key issue in this matter. In this ground of appeal the Appellants challenges the decision of the District Land and Housing Tribunal on the reason that, it ruled in favour of the Respondent who failed to prove his ownership over the suit land. The Respondent was the Applicant before the trial tribunal and he alleged that the suit land belongs to his late father one Juma Jumanne. The law, section 110 (1) & (2) of Evidence Act, [Cap 6 R.E 2022] requires those who allege existence of certain set of facts to prove the same. During trial, the Respondent stated that the land in dispute belongs to his late father, Juma Jumanne who bought the same from a woman whom he couldn't recall her name but there is evidence to that effect. Leave aside the contradiction as to the size of the land stated in his application and his oral testimony, the Respondent failed to tender any proof of the alleged purchase of the suit land by his late father. I hold so while aware of the submission by the Respondents counsel that this matter was determined on credibility of witnesses. It was the Respondent's testimony that his father won a case in respect of the disputed land twice first before the village chairperson and 9 secondly before the Ward Tribunal. Despite such allegations, the Respondent never tendered any judgement of the Ward Tribunal in which his late father was declared the owner of the suit land. He did not mention even the case number which would have assisted the Trial Tribunal to trace the case and find out if there is any decision to that effect. Moreover, the Respondent did not even summon any witness who witnessed the alleged purchase of the suit land by his late father, or has tangible evidence regarding his late father's title over the land. He did not summon even the village chairperson who allegedly determined the dispute over the suit land or even any member of the Ward Tribunal which allegedly declared his late father to be the lawful owner of the suit land. It is an elementary principle that the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his burden and that, the burden of proof is not diluted on account of the weakness of the opposite party's case. In Paulina Samson Ndawavya v. Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017 (unreported) the Court of Appeal held that: "...the burden of proving a fact rest on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for negative is usually incapable ofproof. It is ancient rule founded on consideration of good sense and should not be departed from without strong reason...Until such burden is discharged the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom the burden lies has been able to 10 discharge his burden. Until he arrives at such a conclusion, he cannot proceed on the basis of weakness of the other party.." Since the Respondent who was the Applicant before the tribunal failed to prove his ownership over the land on the required standard, the trial tribunal ought to have dismissed the Application. It is my view that, this ground of appeal is capable of disposing the entire appeal and trying to determine the remaining grounds of appeal will result to shifting the burden of proof to the Appellants who were mere Respondents before the Tribunal. With that considered view in mind, I will not determine the remaining grounds of appeal. Consequently, I allow this appeal with costs. Dated at Tabora this 20th day of August 2024 Z. D. MANGO JUDGE 11