deogratius shirima vs alberta mwahelejo 2021 tzhclandd 76 31 march 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND CASE APPEAL NO. 47 OF 2017 (From the decision ofthe District Land and Housing Tribunal ofKinondoni at Magomeniin Land Case Appeal No. 16 of2014 and Original Ward Tribunal ofKwembe Ward in Application No. 68 of 2013)

DEOGRATIUS SHIRIMA APPELLANT Versus ALBERTA. MWAHELEJO RESPONDENT

JUDGMENT 24/02/2021 & 31/03/2021 Masoud J. This Is a second appeal In which there Is concurrent finding of facts of the lower tribunals, namely, the ward tribunal of Kwembe Ward and District Land and Housing Tribunal of Kinondoni as to the ownership of a disputed piece of land situated In Kwembe ward, Kinondoni Municipality, Dar es Salaam. The concurrent finding In question had it that the respondent, namely, Albert A. Mwahelejo, is the rightful owner of the disputed piece of land. The background of the appeal Is in proceedings which were commenced at the ward tribunal of Kwembe by the respondent against the appellant. He complained that the appellant had trespassed into his suit land, which he acquired way back in 1981 and 1993 from different Individuals through the 1 village government, and had since caused survey and registration of the same in plots. The disputed land he acquired was bordered by pieces of land owned by one, Ongalla (west); and Kolimba (East). On the Contrary, the appellant alleged that the disputed land belongs to him having acquired it on 27/05/2006 by purchasing from one Boniface Gabriel Saganya. As stated earlier, the trial ward tribunal found in favour of the respondent, having heard the evidence adduced by the parties and their respective witnesses, which finding was eventually upheld by the district tribunai on an appeai by the appeliant. In the said

appeai which upheid the triai tribunai's finding, the appeliant's complaint was hinged on the grounds that, the triai tribunai falied to evaiuate the evidence adduced; and that the triai tribunai erred In ordering the ten-ceii ieader and the seiier of the iand In dispute to reimburse the appeliant. The other grounds of compiaint were abandoned by the appeliant The appellant is aggrieved by the decision of the district tribunai which upheid the decision of the triai ward tribunai, and has preferred his appeal on three grounds of appeal as follow: (i) the District Land and Housing Tribunal of Kinondoni (hereinafter the district tribunal) erred in upholding the decision of the Ward Tribunai of Kwembe which declared the '.j:.;. ^respondent lawful owner tf:.the suit land-having purchased thd .same frbm one Juma Abdallah Lifandi while there is no any valid sale agreement existing between them; (ii) the district tribunal erred in disregarding the evidence of the appellant on the record which proved his ownership over the land in dispute; (iii) the district tribunal erred in holding that the sale transaction between the appellant and Boniface Gabriel Sanganya was illegal; and (iv) the district tribunal erred in failing to analyse critically the evidence as revealed on the record. Based on the above the appellant says that district tribunal was wrong in upholding the trial ward

tribunal's decision. Since I am faced with the concurrent finding of the lower tribunals, I am entitled not to disturb the finding unless it is shown to me that there was misdirection or misapprehension on the part of the lower tribunals in the manner in which they dealt with the evidence or relevant procedures. In line with the above-mentioned rule of practice, I have drawn inspiration from plethora of authorities. They included, Amiratial Damodar's Maltase and Another t/a as Zanzibar Silk Stores v A.H. Jariwalla T/a Zanzibar Hotel [1980] TLR. 31; and Bushangila Ng'onga v Manyandamage [2002] TLR 335 (HC)]. The appellant In this case raised four grounds of appeal in his petition of appeal. I was thus in .this appeal required to inquire, through the lens of the grounds- of apr;?.-?J.ra;-jed by the appellant,' ir^ to whetiier o;^not there is 3 any such irregularities. My task Is thus to see whether there Is any misdirection or misapprehension of evidence or procedure that Is evident through such grounds. The question is also whether the appellant pinpointed any misdirection or misapprehension In the handling of the evidence or on the manner in which he applied any relevant procedure. In respect of the first ground of appeal, It was argued that the appellant disputes the District Land and Housing Tribunal's decision which upheld the trial tribunal's decision. The decision was

wrong as there was no sale agreement substantiating that the respondent did indeed purchase the suit land as alleged. The district tribunal was thus required to reverse the ward tribunal's decision In favour of the appellant. It was so argued because, according to the appellant, the evidence of a letter from the Commissioner for Lands and a sketch map showing the plan for the prospective plots of land Intended to be divided from the disputed land was not a conclusive proof of title of ownership of the disputed land In favour of the respondent. \ In addition. It was argued in relation to the first ground that there was a failure of the respondent to call the Commissioner for Lands to testify In relation to the letter, and hence the failure to call a material witness pursuant to the principle In Hemedi Said vs Mohamed Mbilu [1984] .TL^.113. Jn this respect. It Was/arguedjlhat It.was wrong for the district 4 tribunal not to draw an Inference that had the Commissioner been called, he would have testified against the respondent's interests. On the other hand, the respondent disputed the submission that there was no sale agreement tendered in support of the respondent's acquisition of the disputed land. It was thus argued that the respondent adduced evidence in support of his case, which included the sale agreement as to the purchase of the disputed land. It was argued for the

respondent that the fact that the sale agreement was tendered is reflected in page 2 of the district tribunal's judgment. On my part, I think the question is whether the first ground reflects an error or irregularity justif/ing interference of this court sitting as the second appellate court. Looking at the record of the trial tribunal's judgment, it is clear that the district tribunal was satisfied that the respondent had bought the suit land as early as on 29/8/1981 from Juma Abdallah Lifandi at TZS 2,700/- and that the said sale had been confirmed by the Village Authority. On the other hand, it was a considered view of the district tribunal that the appellant had bought the suit land from one Boniface Gabriel Sanganya who had no better title to pass. Having so found the district tribunal was of a clear view that the ward tribunal in arriving at its decision had properly evaluated the evidence laid before it. My review of the record of the proceedings was apparent that it was in the evidence of the respondent that the said Boniface Gabriel Sanganya was one of those who were engaged by the respondent as caretakers of the disputed land. He was thus not the owner of the disputed land capable of disposing of the land or any part thereof to a third party. It is again apparent in the evidence that while the appellant tendered his sale agreement showing how and when the suit

property was acquired by him, the respondent did the same using documents showing that the suit land was acquired by him (the respondent) on an earlier date than the date on which the appellant claimed to have acquired the disputed land. To be clear while it is in the evidence of the appellant that he bought the suit land in 2006 and 2009, it is in the evidence of the respondent that he bought the suit land in 1981 and 1993 from different vendors. My perusal of the documents tendered by the respondent evidenced the following: one, that the respondent's acquisition of the suit land was done through "Kijiji cha Ujamaa, Kwembe as is evidenced in "Hati ya Kumiiiki Shamba eneo la Kijiji Kwembe" dated 29/8/1981. The document shows that the owner is the respondent having bought the suit land from Juma Abdaliah Lifundi at a purchase price of Tshs 2,700/-. The document is duly executed by the respondent and one, Juma Lifundi, in the presence of one, C Meenda and one, H.H. Nyamugali. It is also evident on the document that the respondent acquired 2 acres of land. The above document was also accompanied by a receipt(No. 001164) for payment made by the respondent to the then Kwembe village authority, and a document evidencing acquisition by the respondent of another parcel of land from one Joseph Managwa on 26/9/1981 which was bordered by a parcel of land belonging to one, Ongara, The

receipt was for the sum of Tshs 45/- and was dated 17/10/1981. According to the receipt the fee was in respect of the respondent joining the village. As to the other document, it was witnessed by the same officials of the said village who witnessed the earlier transaction. The purchase price for the acquired parcel of land was Tshs 550/-. There was another document in respect of acquisition of a parcel of land by the respondent sometime on 6/11/193 from one Sikuzani S. Msigala at a purchase price of Tshs 20,000/-. The transaction was done in the presence of Julius Ugulumu, Mariam Mtanga, and Rajabu H. Bushiri, The other sets of documents on the record which supported the respondent's case evidenced steps taken by the respondent towards surveying the disputed land and having it apportioned into plots. My perusal of the documents tendered by the appellant led me to sale agreements executed In 2006 and 2009 by the appellant and one Boniface Saganya. According to the said documents, the disputed land allegedly acquired by the appellant was bordered by parcels of land respectively owned by one, Mama Ongala, and one, Boniface Saganya. One of the witnesses, namely, Simon Charles, was Identified as ^^Mjumbe wa Shin^', and one SIrl Omari, who witnessed the transaction as ^^Muwakilishi wa Kamati ya Ardhi ya Mtad' and as one who also verified the vendor's ownership. Clearly, the said

documents were executed after the respondent had already acquired the disputed land. I have considered the above evidence in the light of the findings of the trial tribunal which was upheld by the district tribunal. I wondered In terms of the first ground of appeal as to whether there was an error or Irregularity entitling interfering with the concurrent finding of the lower tribunals. I was however unable to find any. I say so because it was not true that there were documents including sale agreements on the record tendered by the respondent. In addition to this, there was on the record uncontroverted. testimony in support of the respondent's case that one, Boniface Gabriel Sanganya who sold the disputed land to the appellant was a caretaker in the respondent's disputed land. Fam of no doubt that the finding'by the district tribunal that the appellant had bought the suit land from one, Boniface Gabriel Sanganya who had no better title was founded on the above evidence as the said finding reflects the evidence on the record. With this position, the first ground of appeal is not meritorious. It must accordingly fail. The second and third grounds of appeal were argued together by the appellant. They were in a nutshell related to failure of the district tribunal to consider the evidence of the appellant on the record and illegality of the sale transaction between the appellant and

one, Boniface Gabriel Saganya. This complaint need not detain me much. I have already reviewed the key evidence relating to ownership of the disputed land by the appellant and the respondent. I have already held that on the evidence on the record, the lower tribunals were indeed entitled to hold as they did. If I were to add the evidence adduced by the respondent was in the light of the principle enunciated in the case of Hemedi Said vs Mohamed Mbilu (supra) heavier than that of the appellant. I have had in this respect regard to the documents adduced by the parties to evidence the purchase and hence acquisition of the disputed land and the steps taken to survey the same. This is in addition to the other documents evidence relating to involvement of the local government. I could hot with these twr. grounds rind any misdirection or 9 misapprehension on the part of the lower tribunals in the manner in which they dealt with the evidence or relevant procedures and arrived at the finding that the respondent was the rightful owner of the disputed land. With the evidence revisited above, even if there were any such error entitling my interference, I would not have arrived at a different finding. Consequently, I find that the two grounds are without merit and they accordingly fail. As to the last ground of appeal the main argument was that the district tribunal did not critically

analyse the evidence on the record. It seems that the appellant argument is hinged on his perception that the respondent's evidence was insufficient to establish that he was a rightful owner of the disputed land. I have already pointed out that the evidence on the record showed that the respondent acquired the suit land long before the same was allegedly acquired by the appellant. Contrary to the argument advanced by the appellant that the respondent did not tender sale agreement(s) evidencing as to how he came into ownership of the suit land, there was on the record sale agreements showing how the respondent acquired the suit land. In addition, there were also documents showing that the respondent was recognized by the the local authority in which the suit land is situated, and other documents re!ation=to settling the ball for the s'-jp/ey of the suit land. 10 I have no doubt that the finding of the district tribunal stood on the above evidence. As there was no specific irregularity or error shown pointing to a misdirection or misapprehension on the part of the lower tribunals in the manner in which they dealt with the evidence or relevant procedures, I am prepared as I hereby do so, to dismiss the fourth and last ground of appeal as the same is of no merit. I have already said that in respect of the grounds of appeal raised and on which the appellant's complaint is hinged, I

was not shown nor did I see any misdirection nor misapprehension of the evidence on the record. In the absence of any misdirection or misapprehension of the evidence, my hands are tied as I cannot in the circumstances interfere with the concurrent findings of fact of the two lower tribunals. In the result, I proceed to dismiss the appeal in its entirety with costs. It is so ordered. Dated and Delivered at Dar es salaam this 31^ day of March 2021. W _ -t' - if' pa \< B >. Masoud ic ✩ Judge 31/3/2021 11 24/02/2021 & 31/03/2021

MUHTASARI WA SHAURI 1. Maelezo mafupi ya shauri Shauri hili ni rufaa ya pili. Mdai anapinga uamuzi wa baraza la nyumba na ardhi uiloafiki uamuzi wa baraza la kata. Uamuzi huo ullmtamka mrufanlwa kuwa ndiye mmHikl halali wa ardhi inayobishaniwa kwa kuwa mrufani aliuziwa ardhi hiyo na mtu ambaye hakuwa na umiliki wa kumuwezesha kuuza na hivyo kuhamisha miliki ya ardhi hiyo kwa mtu mwingine.

2. Uamuzi wa Mahakama Rufaa imetupwa kwa gharama kwakuwa hakukuwa na dosari yoyote ya namna mabaraza yote ya chini yalivyoshughulika na Ushahidi uliotolewa katika kufikia uamuzi dhidi ya mrufani. Kwa msingi huo, kwa kuwa hii ni rufaa ya pili, mahakama haiwezi kuingilia uamuzi huo wa baraza la wilaya la ardhi na nyumba ulioaflkl uamuzi wa baraza la kata.

3. Sababu za Maamuzi Hakukuwa na dosari za kuiwezeshe mahakama hii kuingilia uamuzi wa baraza la wllaya la ardhi na nyumba unaofanana na uamuzi wa baraza la kata. Angalizo: 1. Lengo la muhtssari huu ni kueleza maamuzi ya mahakama katika lugha nyepesi ya Kiswahlli.

2. Muhtasarl huu ni kwa ajill ya taarifa tu na hivyo hauna nguvu ya kisheria 3. Uamuzi kamili wenye nguvu ya kisheria unapatikana unapatikana katika tovoti httDs://tanzlii.QrQ/tz/iudQments 12