registered trustees of taso another vs zawadi ernest dakika 2018 tzhclandd 107 28 may 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 167 OF 2016 (From the decision o f the District Land and Housing Tribunal o f Morogoro in Land Application No. 28 o f 2014) THE REGISTERED TRUSTEES OF TASO .1st APPLICANT AMINIEL E. MARO............................ 2nd APPLICANT VERSUS ZAWADI ERNEST DAKIKA RESSPONDENT Date o f last order: 24/05/2018 Lade o fJudgment: 28/05/2018 JUDGMENT Makuru. J. The Appellants in this case, The Registered Trustees of TASO and Aminiel E. Maro, are appealing against the decision of District Land and Housing Tribunal for Morogoro at Morogoro (herein after referred to as "the Tribunal") in Application No. 28 of 2014. In the Tribunal the Respondent, Zawadi Ernest Dakika, lodged a claim against the Appellants for the following reliefs: i. The Applicant be declared the owner of the land in dispute and the Respondent is a trespasser. ii. Immediate eviction order be issued against the 2nd Respondent, his heirs, agents, servant or workmen from interfering Applicant's operation and possession over land in dispute. iii. Costs of the suit iv. Any other relief(s) as this honourable Tribunal may deem fit and just to grant. The application was allowed with costs. Aggrieved by the decision of the Tribunal the Appellants have preferred this appeal on the following grounds: 1. That, the Tribunal erred in law and fact when it decided the matter in favour of the Respondent while she failed to prove her case against the Appellants. 2. That, the Tribunal erred in law and fact when it failed to take on board the evidence of the Appellants that the Respondent ceased to be a tenant of the 1st Appellant since 2012. The Appellants were represented by Ms. Ester Shoo, learned counsel while the Respondent appeared in person, unrepresented. By the consent of the parties and as per the order of this court, the appeal was disposed of by way of written submissions. The Appellants opted to argue together both the grounds of appeal. In their written submission, the Appellants submitted that the dispute in the present case is over a tenancy on Plot No. 50C, at Nanenane Area in Morogoro Municipality owned by the Tanzania Agricultural Society (TASO) Eastern Zone. It was argued that according to the evidence of the Applicant, who is present Respondent, the said Plot was rented to her in 2009. According to them, on cross examination the Respondent told the Tribunal that she was not given a tenancy agreement. They argued that there is no evidence to prove that the Respondent was paying rent. They 2 contended that the 2nd Appellant proved having a tenancy agreement and he was paying rent over the premises in dispute. They further submitted that the 1st Appellant's Officer, Mr. Danstan Lukosi, (DW1) during trial testified to the effect that Plot 50C was rented to the Respondent in 2009 but her tenancy came to an end in 2012. According to Mr. Danstan Lukosi (DW1), the Respondent failed to pay rent and to develop the plot. They submitted that this witness clearly stated that there were several remainders to the Responded to pay rent but she did not comply. In that respect, they submitted that the Respondent did not cross-examine DW1. They referred to the case of Moses Norbert Achiula V. The Public, Court of Appeal Criminal Appeal No. 63 of 2012 (Mbeya Registry, unreported) whereby it was held that: "It is now settled law that failure by a party to cross examine a witness o f the other party on an important matter ordinarily implies the acceptance o f the truth of the witness o f the other party" It was submitted that the above rule was reproduced in the case of Sabrina John Vs John Matonge Baru High Court (PC) Matrimonial Civil Appeal No. 10 of 2014 (Mwanza Registry, unreported). They further submitted that the process of re-allocation of the plots by those who failed to meet conditions was done in a meeting which was attended by the Reginal Commissioner (RC), among other people. It was also submitted that Aminiel Erimringi Maro (DW2), one of TASO tenants, told the Tribunal that one Anifa Msangi transferred her tenancy to him. DW2 tendered Exhibit D1 the Tenancy Transfer Form, Exhibit D2 Annual 3 fee receipts and Exhibit D3 a permit for developing the plot, which were admitted unchallenged. They referred to section 101 (2) of the Land Act, Cap 113(2) R.E. 2002 which allows the landlord to terminate tenancy once rent is not paid. It was argued that the Tribunal Misconceived the law that tenancy agreements between TASO (1st Appellant), the Respondent and the 2nd Appellant were taken mean "grants of Right of Occupancy" under Part VI of the Land Act. In the present case, it was argued that the law applicable is Part IX of the Land Act. To conclude it was submitted that, as the Respondent did not pay the requisite annual rent and did not develop the said plot as required, the 1st Appellant was justified to rent it out to other tenants and subsequently to the 2nd Appellant. In response the Respondent submitted that, the issue before the Tribunal was in regard to ownership of Plot No. 50C located at Nanenane Area within Morogoro Municipality. She argued that the said plot was allocated to her by TASO, the 1st Appellant. She further submitted that there is no evidence on record that ownership of the land in dispute was at any time terminated affecting her ownership. Without prejudice to what has been stated above, she submitted that the 2nd Appellants tenancy, if any, was in respect of Plot 47 C and not 50C as claimed by the 2nd Appellant. Therefore, she was of the view that ownership of the plot in dispute, Plot No. 50C is not a subject of this dispute. In view of what has been submitted above, the Respondent prays that the appeal be dismissed with costs. After considering the submissions of both sides and the documentation on record it is not in dispute that the plot in dispute, Plot No. 50C was rented to the Respondent and that she started construction work therein. The relevant receipt, Exhibit 'A' was tendered and admitted in the Tribunal without any objection. I agree with the decision of the Tribunal that TASO was required to prove they terminated the Respondent's implied tenancy agreement. Also as properly argued by the Respondent, it is on record that the 2nd Appellant submitted that he purchased Plot No. 47C from one Mama Msangi. There is no documentary evidence to prove that Plot No. 47C original owned by the said Mama Msangi was changed to read Plot No. 50C owned by the Respondents. Although learned counsel for the Appellants submitted that the process of re-allocation of the plots by those who failed to meet conditions was done in a meeting which was attended by the RC, the minutes of the said meeting were not tendered in court. Also there is no evidence that Respondent was involved or informed of that meeting. From what has been stated above, I agree with the Respondent that ownership of the Plot in dispute is not a subject of this dispute. Hence, the cited cases are irrelevant in the circumstances of this case. 5 In view of the foregoing, I find no cause to fault the decision of the Tribunal. Consequently, the appeal is dismissed in it's entirely with costs. C.W. Makuru JUDGE 28/ 05/2018 Court: Judgment delivered in court this 28th day of May, 2018 in the presence of the 2nd Appellant and Respondent and in the absence of the 1st Appellant. Right of Appeal explained. I C.W. Makuru \ JUDGE 28/ 05/2018