dickson chahe vs bakari mohamed sengoli 2018 tzhclandd 140 11 may 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO.213 of 2016 DICKSON CHAHE.............................................................. APPELLANT VERSUS BAKARI MOHAMED SENGOLI..................................... RESPONDENT Date of Last Order: 03.04.20 I 8 Date of Ruling: I 1.05.2018 JUDGMENT S.A.N WAMBURA, J: Aggrieved by the decision of the District Land and Housing Tribunal of Kibaha, the appellant Dickson Chahe filed four grounds of appeal being;- 1. That the District Land and Housing Tribunal for Coast Region at Kibaha erred in law and fact in not carrying out corrected and sufficient analysis and evaluation of the whole evidence adduced before it in the course of adjudicating on the matter. 2. That the District Land and Housing Tribunal erred in law and fact in not putting into consideration the Respondent's cross examination during the hearing of the matter. 3. That the District Land and Housing Tribunal erred in law and fact in not visiting the suit premises for the purpose of ascertaining the i boundaries of the land in question and the Plot and or the house purported to have been bought by the applicant. 4. That the District Land and Housing Tribunal erred in law and fact in entertaining the Application while knowing that the Applicant had no locus Standi. He thus prayed that the said decision be quashed and the appeal be upheld with costs. The respondent Bakari Mohamed Sengoli challenged the appeal and prayed for the following orders: (a) The appeal be dismissed with cost. (b) This Honourable Court to confirm the Trial Tribunal’s Judgment. In order to understand the decision to be issued herein I believe there is a need to adduce a brief historical background of this matter. The respondent herein instituted a suit seeking judgment and decree against the appellant for the Orders that the appellant issues vacant possession of the suit premises and he be declared as a trespasser there to. 2 The appellant denied all the respondent’s claims and prayed for the dismissal of the application with costs. During the hearing of the suit, two issues were framed, namely: 1. Who is the lawful owner of the suit house, 2. To what reliefs are the parties entitled. Having heard both parties, the District Land and Housing Tribunal found in favour of the respondent it declared him the lawful owner of the suit premises and declared the appellant a trespasser into the suit land. It further ordered the appellant to issue vacant possession over the suit land and to demolish the cattle kraal. At the hearing of this appeal the appellant appeared in person unrepresented whereas the respondent enjoyed the legal services of Mr. Waziri Advocate. With leave of this court, the appeal was disposed of by way of written submissions. I thank both parties for adhering to the schedule. 3 Submitting on the 1st ground of appeal, the appellant contended that the sale agreement entered between the respondent and the Government categorically stated that it was in respect of a house with No. GT/CR/BM/75B and not a Plot. He stated that if the sale agreement intended the Plot to be part of the sale agreement, it would have been stated so in express terms. He further was of the view that in Land Law, one Plot can have several houses, thus it was the duty of the trial Tribunal to consider that fact so as to come up with a reasoned judgment for the sake of rendering substantial justice to parties. The appellant averred that he had been in use occupation and ownership of the plot in dispute since 1986. That the respondent filed the suit claiming for the recovery of the Plot on 2012 which is a lapse of 26 years contrary to the First Schedule of the Law of Limitation Act Cap. 89 R.E.2002. On the 2nd ground of appeal, the appellant submitted that it was the duty of the trial Tribunal to visit the site to ascertain and satisfy 4 itself that the respondent had a reasonable ground for the claim or not. That the Plot subject of this appeal has other Government houses and the appellant’s house borders the Government houses and Plot. He stated that failure of the trial Tribunal to visit the site has caused serious miscarriage of justice to other Government houses and that of the appellant. On the 3rd ground of appeal, the appellant submitted that the respondent had no locus standi to institute any claim for recovery of the Government properties without Power of Attorney or any instructions from the Government to that effect. He therefore prayed for the appeal to be allowed with costs. In response Mr. Waziri Counsel for the respondent submitted that from the trial Tribunal records, the Government sold the disputed plot to the Respondent through contract No. TP.0267 and the sale was outright and absolute with all the rights over the disputed Plot. That the whole Plot was Government property and the same 5 has been sold to the Respondent hence no other person has a right over the disputed land. He contended that the said fact was also confirmed by Pw 1, Pw2 and Pw 3. That since it was not disputed that the respondent bought the disputed Plot from the Government, it was also not disputed that the disputed Plot was formerly owned by Mzee Mlulwe. Mr. Waziri further submitted that the issue of time limitation was already determined during the hearing of the preliminary objection raised by the appellant where by the trial Tribunal overruled the preliminary objection by finding that the suit was filed within time. Responding on the 2nd ground of appeal, Mr. Waziri averred that there was no need for the Trial Chairman to visit the disputed Plot since the appellant did not prove how he came in possession of the disputed plot. 6 On the 3rd ground of appeal, it was submitted by Mr. Waziri that the appellant has failed to convince the trial Tribunal that he had a better title than the respondent. He therefore prayed for the appeal to be dismissed with costs. In reply, the appellant reiterated his earlier submissions in chief. Now having gone through the grounds of the appeal as well as the records of the District Land and Housing Tribunal and the submissions from both parties, this court observed that the main issue to be determined is whether the trial Tribunal properly evaluated the evidence on record before arriving at its decision or not. According to the evidence on record, the appellant does not dispute that the respondent bought the disputed house from the Government through the Permanent Secretary, Ministry of Works. What he disputes is that “the sale agreement entered between the respondent and the Government was only for the house and not the disputed Plot. 7 According to the testimony of Pw 2 Said Sultan Mlulwe, the Government was given the disputed area by Kufuru Nyipula. He stated that as a party leader he participated when the land was handled to the Government by Nyipula. That on that area there was a cattle kraal of the respondent. He also contended that the house which the appellant built as his residence, was within the area which the Government was given. This fact was also confirmed by Pw 4 Jackson Richard Kisiraga, an employee of Tanzania Building Agency in Coast Region who averred that the houses were sold together with the surrounding compounds. During the hearing the appellant did not state as to how he acquired the disputed plot. It is my belief that the sale agreement entered between the respondent and the Government through contract No.TP.0267 was outright and absolute with all the rights over the disputed plot. 8 So in respect of the 1st ground, I believe that the trial Tribunal properly evaluated its evidence in deciding that the disputed Plot was part and parcel of the house sold to the respondent by the Government. Regarding the issue of failure to visit the locus in quo by the trial Tribunal, I do not find such an omission to be misdirection as submitted by the Appellant. The object of locus in quo visits is well settled. In the case of Mukasa v. Uganda (1964) EA 698 at 700, which was relied on by the Court of Appeal of Uganda in Matsiko Edward v. Uganda, C.A. Crim. Appeal No.75 of 1999 Sir Udo Udoma CJ (as he then was) held that; “A view of a locus in-quo ought to be, I think, to check on the evidence already given and, where necessary, and possible to have such evidence ocularly demonstrated in the same way a court examines a plan or map on some fixed object already exhibited or spoken of in the proceedings.” 9 Again in the case of Yeseri Waibi v. Edisa Lusi Byandala [1982] HCB 28, which was relied on by the Court of Appeal of Uganda in Yowasi Kabiguruka v. Samuel Byarufu, C.A. Civ. Appeal No. 18 of 2008 [2010] UGCA 7 it was held and I beg to quote; “The practice of visiting the locus in quo is to check on the evidence given by witness and not to fill the gap for then the trial magistrate may run the risk of making himself a witness in the c a se .... ” Clearly, the stated rationale of a locus in quo visits does not seem to mandate the trial courts to conduct such visits in every case. Much as it should have been desirable, the question to ask ourselves is whether failure to visit the locus in quo occasioned any miscarriage of justice which is purely a question of evidence. From the evidence, even if the visit to the locus in quo had been made, it would not have affected the outcome. Thus this ground of appeal also fails. 10 On the third ground of appeal, the appellant alleged that the respondent had no locus standi to file a suit before the trial Tribunal. Upon careful perusal of the records as well as the evidence, this court finds that the respondent had locus standi to sue the appellant over the disputed plot. This is because the Plot in dispute was lawfully sold to the respondent by the Government. Being the owner of the disputed plot, he had the capacity to sue the appellant for trespassing into his suit land. This is because ownership has already been transferred from the Government to the respondent through the sale agreement entered on 06/08/2007. Thus having said that, this court finds no justifiable reasons to disturb the finding of facts of the lower tribunal. The decision of the District Land and Housing Tribunal of Kibaha in Land Application No. 151 of 2012 is upheld. li The appeal is accordingly dismissed with costs. 12