20160218 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA AT MBEYA LAND CASE APPEAL NO. 16 OF 2014 (From the Decision of the District Land and Housing Tribunal of RUNGWE District at RUNGWE in Land Case No. 37 of 2012) GEOF'1.EY ?.IK.A K.ILA.14E ..................................... APPELLANT VERSUS MAJAVILO LUVANDA ANYAMBILILE KIPOSONGO NKINDA I............ .RESPONDENTS JUDGMENT Date of last order: 02. 12.2015 Date of Judgment: 18. 12.2015 Dr. M. C. Levira, J The appellant unsuccessfully sued the respondents before Rungwe District Land and Housing Tribunal. The trial tribunal dismissed the application and it was stated that the 1st respondent legally sold the suit land to the 2d respondent. Hence the 2nd respondent was declared to be lawful owner of the land in dispute. The appellant is against the whole judgment and decree on the following grounds: 1. The trial tribunal erred in law and fact for basing its decision on the hearsay evidence which was presented by the stranger (bush lawyer) purporting to represent the 1st respondent. Page 1of 11 The trial tribunal erred in law and fact relying on the respondents evidence which was seriously contradictory. That the tribunal grossly erred in law and fact for declaring that the sale of the clan land was lawful despite the presence of graves of the appellant's both parents. That the trial tribunal erred in law for holding that the letter of administration of the estates had nothing to do with land in dispute. That the trial tribunal unreasonably determined the matter on merit without considering and complying with the orders delivered on 27/09/2012 by the High Court in the Land Appeal No. 1 of 2011. That the District Land and Housing Tribunal erred in law and fact for deciding that the 1st Respondent was right to execute the sale of the disputed land despIte the fact that the transaction was made when there was a pending suit on application for injunction at the District Land and Housing Tribunal. That the trial tribunal erred both in law and fact as it failed to consider the evidence of the plaintiff. That the trial Magistrate failed to evaluate and analyze evidence in record. That the trial tribunal erred in law and fact in holding that, the disposition made by the respondents was legal considering the fact that the land in dispute was among the properties of Page 2 of 11 the estate of the deceased one Mika Kilale which the appellant was appointed to administer thereto. For an easy appreciation of the events giving rise to this appeal, it is desirable to preface the brief background of the suit at hand. On 19/04/2013, the appellant filed a suit against the respondent demanding the court/ tribunal to declare that the respondents made a wrong transaction of the land in dispute and hence the 2nd respondent was required to vacate the place. Before the tribunal the appellant stated that he is the administrator of their father's estate. The land in disputed belonged to their late father and it was used by the two wives. The suit land has never been portioned among wives. DW1, Winfred Mkumbwa who represented the 1st respondent told the trial tribunal that the suit land was the property of Appellant's late father and his wives including the 1st respondent. Later the land was divided among the wives and in that regard the 1st respondent had her own piece of land. According to DW1, the 2' wife of Mika, (the mother of the appellant) already sold her portion of land to various people including Elia Mbilinyi, Edwen and Neema Michael. And the appellant did not sue her mother for selling such land. In such Page 3 of 11 regard DW 1 told the tribunal that the appellant has no right to sue the 1st respondent because he has no interest over the suit land. DW2, Nibolisye Mwakajage, the uncle of the 1st respondent and other people are the ones who allocated the land to the wives of the late Mika. And the land in dispute was allocated to Majavilo (the 1st respondent). The appellant ones terrified the 1st respondent who decided to leave the place. Therefore the 1st respondent sold her own land to 2nd respondent. DW3 also told the tribunal that the 1st respondent and her husband were given the land from their uncle. Later that land was divided among the two wives. Having considered the evidence on record, the trial tribunal observed that the first respondent was right to sell the land to the 2nd respondent and therefore the transaction was legal. The appellant did not concede that decision hence this appeal. During hearing, the respondents were represented by Mr. Muya, learned Advocate. The appellant remained unrepresented and he prayed the matter to be disposed of by way of written submission. This court granted that prayer. The submission of the parties shall be examined during the course of my discussion. In the first ground of appeal, the appellant contended that the trial tribunal erred in law when it allowed DW1 to feature and represent the first respondent. In fact DW1 was neither an Advocate nor legal Page 4 of 11 representative therefore the trial tribunal ought to have discarded the evidence of DW1 as he only narrated hearsay evidence. After having perused the records, it is apparent that on 19/04/20 13 the trial tribunal was informed that the 1st respondent was too old as she aged 92 years. Therefore the tribunal ordered the 1st respondent to be represented by a near relative. That on 27/05/2013 the trial tribunal ordered one Winfred Mkumbwa to represent the 1st respondent. Subsequently in all two occasions, the appellant did not object the appointment of DW1 as legal representative of the 1st respondent. I have also taken a look over the evidence testified at the tribunal, there is no where the appellant dared to inform the court that it was illegal to accept the evidence of DW1. In such circumstances, the appellant is trying to plead some facts that were not mentioned at the court of first instance• which realistically is against the practices of the court. Backing up what I have stated above, the Court of Appeal of Tanzania in Hotel Travertine Ltd and Two others Vs. NBC Civil Appeal No. 82/2002, landed the following words: "Asmatter of general principle an appellate court can not allow matters not taken or pleaded in court below to be raised on appeal". Page 5 of 11 In the second ground of appeal, the appellant faults the decision of the trial tribunal that the Hon. Chairman reached the conclusion without taking into account the contradictory evidence from DW 1 and DW4. The Appellant alleges that the witnesses did not mention the name of the uncle who seemed to have conveyed the land to the late father of the appellant. I have visited the trial tribunal records. The records reveal that DW1 and DW4 unanimously opined to the effect that, the father of the appellant and his wife (1st respondent) were given the land in dispute by their uncle. The name of the said uncle was not mentioned. The issue now is whether non mentioning the name of the uncle makes the evidence of DW1 and DW4 contradictory. As much as I see, there is no contradiction of evidence between DW1 and DW4. The duty of the witnesses was to tell the trial tribunal how the late father of the appellant and the 1st respondent came into possession of the land in dispute. And that is exactly what DW1 and DW4 did. The appellant in the 3rd ground of appeal faults the decision of the trial tribunal that it was improper for the tribunal to declare the sale of graves to be lawful. Looking into the records, it appears the appellant was not able to read the judgment between the lines, had he done so he could have discovered the basis of the judgment. At page three paragraph nine of the judgment it reads: Page 6 of 11 "Therefore the 1st respondent was right to sell the land to 2nd respondent hence it was legal transaction because the 1st respondent was owner of the land". The Hon. Chairman did not declare the sale of graves to be lawful but the trial tribunal blessed the whole transaction that the 2nd respondent lawfully acquired the suit land from the 1st respondent. Besides, the trial tribunal paid a visit at the locus in quo in case the land in dispute had the graves, the remarks could have been shown in the records. Let alone be the case, the law also is very clear that anything which is constructed on land in such a way that it can not be removed at all save by destruction that forms part of the land. At such regard if the land in dispute had graves, they also formed part of the property sold to 2d respondent. Ground number four of the appeal, the appellant alleges that the trial tribunal erred in law for holding that the letters of Administration had nothing to do with the land in dispute. According to him only the appointed administrator can dispose of the deceased properties. In one way I am in agreement with the appellant's assertion that the Administrator of Estate is the only person vested with the power to dispose of the deceased property. But what the trial tribunal observed was that the appellant failed to prove his claim beyond the balance of probabilities. Page 7 of 11 After having scanned the appellant's evidence before the trial tribunal, I have discovered two aspects that ought to had been addressed by the appellant. The appellant had a burden to prove before the tribunal that the suit land was subject to be administered by him by either showing that the land was not matrimonial property or in anyhow the suit land was not the property of the 1st respondent. In such circumstances, I firm stand on the reasoning of the Hon. Trial chairman that the appellant failed to prove even within balance of probability that the land in dispute solely belonged to appellant's deceased father. Ground five and six, the appellant challenges the decision of the trial tribunal that it reached the decision without complying with orders derived by this court in Land Appeal No. 1 of 2011. Also the trial tribunal failed to appreciate the fact that the transaction of selling the land was executed pending the application for injunction at the District Land and Housing Tribunal. It has not been easy to know the very order that was abused by the trial tribunal as the appellant has not pointed out. In Application No. 17 of 2008, this court quashed the decision and proceedings of the District Land and Housing Tribunal. The matter was orderd to be heard afresh. Page 8 of 11 Complying with such an order, the appellant instituted a fresh suit before District Land and Housing Tribunal at Rungwe via Land Application No. 37 of 2012 to wit the decision was made infavour of the respondent. For those situations its my firm and considered opinion that there is no order apparent on the record that was not complied with by the tribunal. The appellant also contends that he made an application for interractory order restraining the intended sale between the 1 St and 2nd respondent. The trial tribunal neglected such application. Very unfortunately the records before the trial tribunal do not support such allegation for the fact that there is no where to find the said application which was filed by the appellant. And at last, the appellant in ground 7, 8 and 9 faults the trial tribunal decision that it failed to consider, evaluate and analyse the evidence in record. Had it been done, the trial tribunal could have reached to another premise of the judgment. Observing the evidence and the appendences thereof before the trial tribunal, it pertinent that the trial tribunal visited the locus in quo. The land in dispute was only ¼ acre. The appellant apart from that piece of land in dispute failed to show or explain other properties which were subject to be administered: As I remarked earlier, it was Page 9 of 11 the duty of the appellant to prove that the land in dispute only belonged to his deceased father and was neither a matrimonial property nor owned by the 1st respondent alone. For that basis it is my opinion that the tribunal was right to decide in favour of the respondents. Following the reasons above, the appeal lacks merits and the same is dismissed with costs. Dr. rT.'- M*a Judge 18/02/2016 Page 10 of 11 I Date: 18/02/2016 ,1 ( Coram: Dr. M. C. Levira, J Appellant: Present Respondents: 1 1 : Present ;1 2nd: Present B/C: Mapunda Court: Parties are unrepresented today. The matter is coming for judgment. Judgment delivered in presence both parties. Right of Appeal Explained. ..rAi Judge 18/02/2016 Page 11 of 11