20150225 TZHC Mbeya

• IN THE HIGH COURT OF TANZANIA ATMBEYA LAND APPEAL NO 12 OF 2012 (From the DecisIon of the District Land and Housing Tribunal of RUNGWE District at RUNGWE In Land Case No 25 of 2009) CHRISTOPHER MWAKALUKWA ................... APPELLANT VERSUS 1. CHAIRMAN OF LUGOMBO VILLAGE 2.AIRTEL(T)LIMITED I RESPONDENTS JUDGMENT 06.11.2014 & 25.02.2015 CHOCHA, J. I am ignoring the fact that Christopher Mwakalukwa introduced himself in this petition of appeal as the applicant instead of appellant. The appeal is against two respondents namely:- The Chairman of Lugombo village, and Airtel (1) Limited. They feature as the 1 and 2 nd Respondents respectively. The dispute revolve on a piece of land whereupon the 2rd respondent built communication tower with the 1 respondent's leave. The appellant is bitter. He contends that the land hosting the 2nd Respondent's communication infrastructure belongs to him. He submitted that the land is an inherited property following his father's death in 1999. At the time of his testimony in 2011, it was established that the appellant was 41 years old. Simple mathematical calculations / pesupposes that he was born in 1970. The trial District Land Housing Tribunal hesitated to believe that the appellant could at all possess the land at the age of 1 year as he had contended. The appellant had told the tribunal that he began using the suitland w.e.f. 1971. The appellant's mother too featured as a witness before the trial tribunal. She also told the tribunal that the land was hers. The tribunal was at cross roads as to who between the two is the true owner of the suitland. That confusion resulted in the District Land Housing Tribunal awarding the suitland to the 1 st respondent as its lawful owner. The 2'' respondent was eventually declared a lawful tenant thereto. That decision is the cause of the present consequences. The appellant timely, raised a seven grounds petition of appeal. Both during the trial and here on appeal, parties enjoyed services of the mixed trained minds. 11 During the trial, the appellant was assisted if not guided by one Dickson A. Komba. When the 2nd respondent's advocate had demanded more description from him, Mr. Komba simply said that he was the appellant's representative. Here on appeal, the appellant was represented by Mr. Samson Makanje. Samson Makanje is not new in court premises. He features in more than many cases in different jurisdictions armed by special power of attorney from the institution christened "/-/AKIZA RAJA NA MSAADA WA USHA LIRI WA KISHERIA ' The title of the "institution" from which Mr. Makanje belongs and performs, is attractive. What we are not very sure is whether the purported services are rendered for free as pretended. If Mr. Makanje and others in the institution spend most of their time in courts "rendering services"to people for free, one wonders at what point in time do they 1c // engage themselves in other activities for their livelihood? Among the 1/ institution's objectives is as noted, to render, legal services to people. Unfortunately it is not very clear to this court who are the institution partners and what are their professional qualifications. As the Zonal Judiciary Administrator, I have more than often come across correspondences from HAKI ZA RAIA ".Tnstitution' They are always complaints in nature without distinction to the origin. We excepted this "Institution" to comprise personnel capable of distinguishing between administrative and judiciary related complaints. If the advisor cannot distinguish between the two, there is no way can he render appropriate advise. All respondents were, at all stages of the dispute le, during the trial and here on appeal, represented by Mr. Mwandambo Advocate (as he then was). Having addressed this court on the 6 th August 2014, in less than two weeks and during the pendency of the judgment, Mr. Mwandambo was promoted to a Judge. As I write, he is now the Hon Judge. It is not clear what will happen next to his former clients. Having carefully gone through the trial court records and the grounds of appeal vis a vis the parties' submissions, I find the ownership of the suitland is still the number one unresolved burning issue. Issues like what is the size of the suitland however fundamental, are secondary to who owns it. I understand parties raised more issues in the course of their submissions for example, whether the document which was not stated or accompanied in the amended pleading would be considered. Without ado, I wish to refer the parties to the provisions of R.9 to 0 VI and 0 VII R. 14 (I) of the Civil Procedure Code Cap 33. The former reads:- 20 7 "Whenever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible . The later provides:-. "Where a plaintiff sues upon a document in his possession or power, he shall produce it when the plaint is presented and shall at the same time deli ver the document or a copy thereof to be f/led with the plaint' The case of TANGA HARDWARE & AUTOPARTS LTD Versus CRDB Civil Appeal 144/2005 - Court of Appeal of Tanzania referred to by the respondents' counsel was decided in the light and sprit of that law. It is binding decision to all subordinate courts. It constitutes a 'oar incur/urn" submission to propose a departure from these "res ,'sa loqu/tor" legal stances. The proposed departure which is intended to accommodate the letter left out during the filing of the amended plaint cannot be accepted. A pleading which is a subject of amendment, fades away with all its attachments. The party shalt therefore have to re-introduce whatever material document afresh at the time of filing the amended pleading. That evidence cannot be introduced at this stage of the appeal without offending the procedural laws hereinabove cited. Mr. Makanje's persistence that District Land Housing Tribunal erred when it ignored the letter or the proposition that the same should be considered in this appeal is a thin unhealthy invitation. It was important for me to say something about this letter as a base of what I wish to add. The intended additional remarks focus on the suitland ownership related issues earlier on introduced. Upon my thorough evaluation of the evidence I feel there is still much to be looked at. From Moyo Mbamba and Edson Miawa's (DW2 & 3 respectively) evidence, the suitland was not idle ahead of being leased to the 2 nd respondent. DW2 clearly says it was "used for grazing purpose and cultivation of short crops' The witness says further that:- "The suit/and and surrounding area was declared to be villagers" land ... There is big area which is used by villagers, ... I know the applicants' mother... Surrounding the suit/and there are farming activities which are going on This witness, once a village leader, contended that there are ongoing farming activities around the suitland. He concedes that the appellant was his villagemate. He does not deny that the appellant was among the villagers carrying farming activities around the suitland. What he expressly states is that he never saw the applicant using the suitland. From the evidence, it should be agreed in principal, that there were farming activities by some undisclosed villagers around the suitland. The question that quickly arises is how far from the suitland? When we talk of 2nd a suitland we have in mind that piece of land upon which the respondent's communication infrastructure or facility is built. Now, what is that area sized? DW1 Philipo Makena says the disputed land covers 15 x 15 meters. This is the size indicated in the lease contract constituting part of the trial record. The applicant says it is an acre. These dimenions converted in millimeters means 1485 mm x 1485mm • approximately 1500mm. / Ann A to the contract titled "PROPOSED CEL TEL SITE AT KIWIRA PRISON" reveal that the site covers 12232 x 13532 mm respectively. Converted in meters even where one meter is sized to 100 mm it means 122 x 135metres. If the size of the site is what is described in the Ann A, then the same. is 11/2 (one and half) acres or more. It is not only 15 x 15 meters as stated by DW1 and the contract, In actual fact, the actual size of the site is 16470 square meters. It is not 225 square meters as stated in the contract. In percentage, the actual size is 7320% bigger than the contractual size. Unfortunately, it is not explained where did the additional area come from. The additional unexplained area, big as it is, must have engulfed more land around it. It was necessary, in view of this contradiction of the evidence over the size of the suitland, for the tribunal to visit and inspect the "locus in quo"to verify the actual dimensions. The tribunal should have discovered the excessive land which is not included in the contract. It would be in a position to assess its effect on the surrounding land users. Failure to visit the "locus in cuo" was fatal. I believe the trial District Land Housing Tribunal lost sight of the contradiction which if it had sighted, would not so easily wash it away. And if it was considered adequately it would probably impact the conclusion. For proper administration of justice I direct a RETRIAL, whereupon among the important events to consider, should be the inspection of the "/ocus" Perhaps during the exercise, the tribunal shall be in a position to satisfy itself whether or not the suitland or any land around it as may be described or pointed to it by the complainant really belongs to him or has 11 ' in anyway been affected by the 2nd respondent's infrastructure. / ( To that end, to give way to the retrial all proceeding and judgment of the trial District Land Housing Tribunal are quashed. Orders are set aside. The retrial should be before a chairman sitting with a different set of assessors. In view of the cause of the consequences each part is to bear his costs. N.P.Z. Judge 25.02.2015 Date: 25.02.2015 Coram: N.P.Z. Chocha, J. ApeIIant: Samson Makanje (power of attorney) Respondents: 1 - Moyo Mbamba Absent R/A: Ms Mwandambo Court: Judgment delivered. Order: Right of appeal Explained. N.P.Z. Chocha Judge 25.02.2015 7