caristo kalipesa vs emelensiana kalyila 2024 tzhc 876 15 march 2024

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

ATSUMBAWANGA MISC. LAND APPEAL NO. 16 OF 2022 (Arising from the decision of the District Land and Housing Tribunal for Rukwa at Sumbawanga in Land Appeal No. 45 of2020 which originated;from the decision of Pito Ward Tribunal in Land Case Nd^2^Pf2019)^ CARISTO KALIPESA............. ........... ....... .^.......B..„W».APPELLANT W. "W EMELENSIANA KALYILA.. .... ......................... RESPONDENT w ' ' 'wk MRISHA, J As it appears above;The present appeal arises from the decision of the District Wd andjHousing Tribunal (the appellate tribunal) which originated from the decision of Pito Ward Tribunal (the trial tribunal). At the trial tribunal the appellant Caristo Kalipesa unsuccessfully sued the respondent Emelensiana Kalyila over a piece of land estimated to be twenty (20) acres. i He also loosed before the appellate tribunal and therefore, decided to come to his court in order to challenge the decisions of the two lower courts. His Memorandum of Appeal is predicated on the following grounds of appeal : - 1. That the (sic) leaned Chairperson of the District Land and Housing Tribunal erred in law and fact by not consideringrthe issue of locus standi and power of attorney hence arriWBat,a wrcfig^decision.

2. That the learned Chairperson of the^ppelllte JribiihaLorred in law and fact by failing comgptefyO^^Rte thje evidence of the Tribunal didBot see that the members of Pito Ward Tribunal did not sigrileacri day they attended the proceedings hence reached at a wrong decision.

5. That the Ward Tribunal erred in law and fact by not considering time of recovering of the land. 2 6. That the evidence of the respondent was weak compared to that of the appellant which was strong.

7. That the appellant was not fully treated as according to the principles of natural justice. The appeal was heard by way of written submissions and both parties complied with the order of the court by filing theihjrespective written submissions through their learned advoca^^^enc^^:hej|resent Submitting in respect of the^muincIs^Rap^al^ fir James Lubusi, ' "'W learned advocate for theT^ppellantlargued That one Nicolaus Efrem K A W ’W Kalyila had no locus-standi|to prosecute the.case against the appellant at (hen sllkought to grant Nicolaus Efrem Kalyila a trying to rectify the above irregularity by invoking the provisions of section 18 (2) of the Land Dispute Courts Act, Cap 216 R.E. 2019 (the LDCA). According to him, that section does not permit a relative to prosecute the case on behalf of a party in the land case before the ward tribunal. 3 Arguing about the second and sixth grounds of appeal, the appellant counsel submitted that one Mzee Logasio who is the appellant's father had been in occupation of the disputed land for a long time, as it is shown at page 5 of the trial tribunal typed proceedings, but the appellate tribunal failed to evaluate that evidence; hence, reached to a wrong decision. The counsel added that even the gentlemen assessors whb.sat^with the hon. Chairperson of the appellate tribunal^ hadlthefopihions that the disputed land, belongs of the

apj^llS^^^^^k. % In regard to grounds ^number three and four of the appellant's Memorandum of Appeal,Wr. Ltibusiisubrriitted that the hearing of the land case befoOthe tHab tribunakcommenced on 13.10.2019 and the judgr^^^gs^^^^^^^^4.2020, but it is only one day that the members of the said tribunal appended their signatures on the proceedings of the||rial tribunal. The appellant counsel added that even the genders of the said trial tribunal members were not indicated in the said proceedings. He gave an example that the trial tribunal proceedings show that on 17.12.2021 the members of the said tribunal attended the proceedings, but they did 4 not sign the proceedings which is contrary to the law, as provided under section 11 of the LDCA. To bolster his stance, Mr. Lubusi cited the cases of Elias Horo vs Yohana Machawa, Misc. Land Appeal No. 171 of 2016 and Akleus Masanja and Akleo Ntandu vs Sabas Lupia, Land Case No. 08 of 2006 (all unreported) in which the court quashed th^whole proceedings and judgment of the Ward Tribunal for being fatellydrregulatk Turning to the fifth ground of appeal, Mr tfqbusi began by referring the court to the cases of Nassoro vs RajabuSimba (1967) HCD No. 233 and Augusta Mpolo y||^amad^hani Shabani Msuya, Misc. Land It. Mb Appeal No. 98 of 2017(tihreported)im which the principles of adverse possession Having^jt|d^thd^^^^^^^^he appellant counsel

submitted that the by. appellant has been in^cupation of the disputed land for a long period of time, ThereforeTut will be against the public policy to disturb the appellant who has been in occupation of the disputed land for more than fifteen years. He added that the principle of law stated in the case of Ramadhan Makwega vs Theresian M. Mshuza, Misc. Land Case No. 3 of 2918 (unreported) to the effect that an invitee cannot have right over the 5 ownership of land, cannot apply to the case at hand because the appellant had been in occupation of the disputed land for a long period of time. In winding up, Mr. Lubusi urged the court to find that the trial tribunal was not properly constituted as it failed to list the names and gender of the said tribunal and to show their signatures. He'tugher argued that there was enough evidence to show that tKe^appella^had:«been in occupation of the disputed land for a lonfltime a Mtptthe, respond ent had no. locus stand to prosecutejhe He therefore, requested tbecourt tBquashand nullify the decisions of both the trial tribunal andloppellSfftribunab and declare the appellant as the lawful also urged the court to order for vagLoLjjo^^sigfMg cobs immediately after allowing the instant appeali respondent, submitted in respect of the first ground of appeal that since it is not in dispute that Nicolaus Efrem Kalyila and the respondent are blood

relatives, then prosecuting the matter on behalf of the relative as it happened in the case before the trial tribunal, is allowed under section 18 (2) of the LDCA. 6 He added that what is purported by the appellant to be irregularity, is a total misconception and or ignorance of the law. He thus, invited the court to find ground number one to be misconceived hence devoid of merit and proceed to reject it. In respect of the third and fourth grounds of appeal, Mr. Budodi submitted that the appellant has admitted that at thbfcpmmencement of reveal that trial tribunal was properly|cohstituted,andy:he genders of its members were indicated/:which aIRmeanSThat tfiey complied with the w-. provisions of section 11 o&he wsISir. LDCAv W The responde^^^is^l^ls'^^^e^ied that it is not true that the hearing (^thmaJ^^se Wore the trial tribunal commenced on 17.12|2021 aWairnecLby his learned friend because the judgment of the delivered on 21.04.2020. He added that it is now a settled principle that the omission to put names and signatures of tribunal members is not fatal when it comes to substantive justice; hence curable under the oxygen principle as it was held in the case of Yakobo Gichere vs Penina Yusuph, Civil Appeal No. 55 of 2017 (CAT at Mwanza, unreported). Finally, the respondent 7 counsel invited the court to reject grounds number three and four of appeal for being devoid of

merits. As for the fifth ground of appeal, the learned counsel for the respondent submitted that mere long occupation and use of land does not per se constitute adverse possession; long time must be of more than twelve years, but the appellant neither justified and suiskantiated when he possessed the disputed land, nor did he spOjltJg^ bggan to occupy the same That the appellant failed even tp. sh^^fWb^i^arBs of the disputed land which he alleges to:|iave been In. occupation for more than fifteen years. In addition toghatjj^r. BuMnsutMitted that there can never be adverse pos^^®^wher^thefe^^^of of being a licencee or invitation Mshuza (supra* Howeverjtae respondent counsel submitted that there is enough evidence on record to show that the appellant was an invitee to the disputed land. That fact is supported by the conduct of the appellants family to handle over the disputed land according to the meeting held on 08.06.2013. He added that the said handling over meeting implied, by all necessary implications, that the whole family knew that their deceased father was merely an invitee that is why there was no any resistance from the family to return back the disputed land to the respondents family. He therefore, prayed to the court to reject the fifth ground of appeal for being devoid of merit. 'W, In regard to the second and sixth grounds of appeal,, Mr. Budodphad two w Mbs* Wk

W points to make; first he submitted that the recofdsgprthe^trial tribunal He also submitted|that the impug^|diudgment of the trial tribunal was qrounded2opl^deyildrice properly adduced during trial and that failure of thefappellantcto show the boundaries of the disputed land signifies Secondly, the respondent counsel submitted that the allegations that the members of the trial tribunal were not changed as the High Court directed through its previous judgment and that some of those members are relatives of the respondent, are baseless because the records of the 9 trial tribunal are certain on the names, gender and signatures of the said members. From the above submissions, Mr. Budodi prayed that all the grounds of appeal raised by the appellant be dismissed with costs for lack of merits. Having read the above rival submissions and the^cited authorities, my W' task now is to determine whether the present appeal ismieritorious. As it appears from the appellant's memorandum ot^^peal, thefearri'seven grounds of grievance which have to.be consideredlahd addressed by the W- court. 4 However, in my view, thisjappeal can'bKdisposed of by the first, second, W. 4^"% fifth and sixth grounds of :appeal. I say sdsbecause after going through Jjf the procecdingsof’the trial tribiinaljirfiave observed that the complaints contain^iinrthJfe^Wunds of appeal have no legs to stand. The said

recordRclearlytreveal that the trial tribunal properly evaluated the evidence^ both parties before deciding in favour of the respondent. Also, the said records reveal that the trial tribunal was properly constituted and its members appended their signatures on the proceedings. 10 Not only that, but also, it is apparent on record that both parties were afforded an opportunity to adduce their evidence, asking questions and calling their witnesses. Hence, it is not true that the principles of natural justice were not complied with by the trial tribunal. Starting with the first ground of appeal, it is the submission of the counsel for the appellant that the person called Nitolaus Efrem Kalyila case, then she ought® grant NicoiaWEfrem Kalyila a Power of H. Attorney. He has also sijbmitted^ttiat the provisions of section 18 (2) of the LD^pvoked by the^hongghairperson of the appellate tribunal were ^scoftei^h^. On|±ie adver^ry 'sKfe, the respondent's counsel has submitted that there^po mej| on that complaint because the law applied by the hon. Chairperson of the appellate tribunal allows a relative to stand on behalf of a party before the trial tribunal. Section 18 (2) of the LDCA provides that: '75. Appearance by advocate prohibited ii (1)„, N/A. (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. -ru u ..... . । .. . .. , '’■'Wbt. The above provision is clear that the^/ard tribunal^ay permit any relative or any member of the||hpusehold o®ny party to any proceedings to appear and aSIfor s» pffl«®pon request of such party. There is nowhere i|that provision itis|stated that a party to the case before a ward^tribu^l mustgrant a power of attorney to his relative or anyMmbeF^f W®" household. What is required of him/heryisytomake!iWequeskbefore a ward tribunal for his relative to appearand act e^i^l^r behalf. Ik W Reverting b^ckj^tjie present appeal, it is not in dispute that the records of the trial tribunal are silent as to whether the respondent made a request to the trial tribunal that her relative who is Nicolaus Efrem Kalyila, be allowed to appear before that tribunal and act on her behalf. 12 However, since that person who is a relative of the respondent, appeared and acted on behalf of the respondent from the beginning to the end of the trial before the trial tribunal without any objection from the appellant, I am of the settled view that by necessary implication, he was allowed by the said tribunal to appear and act on behalf of the respondent. Hence, I agree with the counsel for the respondent and the hon. Chairperson of the appellate tribunal who invoked>>the

<provisions of aroun^the issue^ eyj^nce and standard of proof in civil cases. It is a trite la\^^^^the^rden of proof in civil cases lies on that person who wishes the courbto believe in its existence and give judgment in his/her favour; the basis of the above court's position is derived from the provisions of section 110 (1) and 112 of the TEA. The appellant has complained that the appellate tribunal failed completely to evaluate his evidence which according to him, was strong 13 compared to that of the respondent. His advocate has supported that proposition his submission in chief. However, the counsel for the respondent has backed the Hon. Chairperson of the appellate tribunal for properly reevaluating the evidence of both parties adduced before the trial tribunal and found that the appellant failed to prove his case against the respondent. appellate tribunal as well as the typed records 6f|the trial tribunal in order to find out whether thelcpmplaintsofthe appellant which are contained in grounds numpertwo anbsix, have merits. • wA wgssr XskbX '•’Si?* ft My careful perusa! dfjthe|same repeals that despite claiming to have been in occpjM^^ theldispSetffilanci for more than fifteen years, the appe!lp|i^i|^^pl^rol^^^se before the trial tribunal compared to the re^ondent^^sWp^idence was strong and proved her ownership of the disputed landJ It is also on record that the appellant

failed to show the boundaries of the disputed land. Also, I have observed as rightly submitted by the counsel for the respondent that, even the evidence of the appellant before the trial tribunal indicates that the disputed land does not belong to him, but to the respondent. 14 Therefore, owing to the above reasons, l am in line with the submission of the counsel for the respondent that the second and six grounds of appeal raised by the appellant have no merits and they stand to be dismissed, as I hereby do. The last for my determination, is the fifth ground of appeal in which the appellant has faulted the appellate tribunal for its fail® to consider the the lawful owner of the sarne-throu^t> adversp possession. He has also submitted that even if the adverse party will argue that an invitee cann^^^^g righ|^fepth|fownership of land as stated in the cases^^^gW^^^^re^a vs Theresia M. Mshuza (supra) and Angelo G Ka^trfi VsKEdward Matondwa (supra), still that principle ilk lb, Wt IB cannot apply in thejpresent case. To the respondent's counsel, that argument by the appellant's counsel is unmerited because it is on record that despite claiming to have been in occupation of the disputed land for a long time, the appellant was an invitee as his grand father was borrowed the disputed land by the 15 respondent's family; hence, the principle stated in the above cases applies to the

circumstances of the case at hand. The counsel for the respondent has gone far by submitting that the handling over meeting of the disputed land which was convened on 08.06.2013, is another justification that the disputed land does not belong to the appellant, but to the respondent. I enlifely agree with that !tg|W|^as given to the family of the respondent. Therefore, since the appellant was andnvitee on the disputed land, the principle of law thatian invitee canndt^iave^a right over the ownership of how n| came into pBssgssion of the disputed land. % w "W Wk M I may alsggdd that his complaint before the trial tribunal that he was given the disputed land by the DLHT, was not supported by any documentary proof and if that was true, the appellate tribunal could not decide the land dispute in favour of the respondent, as it did. 16 It is due to the above reasons that I find the present appeal to be without merits. Consequently, I upheld the decisions of the two lower courts and dismiss the appellant's appeal with costs. Ordered accordingly. DATED at SUMBAWANGA this day of 15th March, 2024. 17