Ruhinduka

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 217 OF 2023 (From Land Application No. 226 of2009, by the District Land and Housing Tribunal for Kinondoni) DIONIS BALTHAZAR RUHINDUKA......................... APPELLANT VERSUS MILLIAN MAKELE................................................... RESPONDENT CORRECTED JUDGMENT Date of Last Order: 27.09.2023 Date ofJudgment: 29.09.2023 T. N. MWENEGOHA, J. This appeal is against the decision of the District Land and Housing Tribunal for Kinondoni, herein after called the Trial Tribunal. The same was given by Hon. S. H. Wambili, vide Land Application No. 226 of 2009, in favour of the respondent, Millian Makele. The dispute itself is centered on a land, locate at Plot No. 243/1, Block G, Shekilango Ubungo Road, within Ubungo District and Dar es Salaam Region. Aggrieved by the Decision, the appellant, Dionis Balthazar Ruhinduka, filed the instant appeal, based on the following grounds; - 1. That, the Trial Tribunal erred in law and in fact for failure to consider Exhibits Pl, P6 and D18; 2. That, the Trial Tribunal erred in law and in fact for failure to recognize that, the alleged seller, one Said Nassoro i Magondeka never occupied the suit Plot, hence had no title to pass; 3. That, the Trial Tribunal erred in law and fact for failure to take into consideration of PW1, PW2, PW3, DW3, and rely on Exhibit D2 in his Decision which was filed in Court six years from the date of filing the Application; 4. That, the Trial Tribunal erred in law and in fact for failure to evaluate the evidence properly. The appeal was heard by way of written submissions, Mr. Desidery Ndibalema, learned counsel, appeared for the appellant while the respondent enjoyed the legal services of Advocate Michael Kabuzya. In determining this appeal, I will start with the 1st, 2nd and 4th grounds of appeal, consolidatively. In the 1st ground, the appellant faulted the Trial Tribunal for disregarding Exhibits Pl, P6 and D18. In his submissions, Mr. Ndibalema insisted that, the testimony of PW1, the appellant is clear that, he acquired the suit land in 1991, being allocated by Kinondoni Municipal Council as shown by Exhibit Pl, the Letter of Offer. That, he has been paying all charges over the land since then and his testimony was supported by that of PW2. He continued to argued that, on the other hand, the respondent never even pleaded to have purchased the land in question. Such information came six years later after filing a list of additional documents to be relied upon. That, above all, the purported Sale Agreement did not even provide the exact size of the land. That, the testimony of DW2 and Exhibit D18 show clearly that, the respondent together with other persons have trespassed over the appellant's land, taking about 70% of the same. 2 He went on to argue on the 2nd ground that, the person who is said to have sold the suit land to the respondent, one Said Nassoro Magondeka, never occupied the said land, though was a resident of NHC flats at Shekilango as per the testimony of DW4, the daughter of Mr. Magondeka. Further, that there is no evidence showing how Mr. Magondeka acquired the land in dispute, for him to dispose the same to the respondent. The Agreement upon which the Trial Chairman relied upon, does not even show the boundaries of the land sold to the respondent. That, the description for the same is vague and can not be relied upon in deciding the matter. The Trial Chairman therefore, passed a Judgment basing on assumptions and that was wrong as per the case of Mbeya- Rukwa Auto parts and transport Ltd versus Jeshina George Mwakyoma (2003) TLR. He insisted that, the seller had no title to pass to the buyer as stated in Farah Mohamed versus Fatuma Abdallah (1992) TLR. 205. Arguing further on the 4th ground, Mr. Ndibalema insisted that, the Trial Tribunal failed to evaluate properly the evidence produced before it. That, there is a Letter of Offer tendered, the Title Deed and testimonies of the appellant and his witnesses. All showing the historical background on how the appellant acquired the suit land. But the Trial Tribunal miserably failed to evaluate the whole evidence, relying only on the Sale Agreement which was filed six years after a case has been instituted. That, the failure is fatal as per the case National Microfinance Bank (NMB) versus Chama cha Kutetea Haki na Maslahi ya Waalimu Tanzania (Chakamwata), Civil Appeal No. 17 of 2019, High Court of Tanzania at Mbeya (unreported). 3 In reply, Mr. Kabuzya for the respondent, was of the view on the 1st ground that, the Letter of Offer (Exhibit Pl) was mistakenly issued in 1991, hence void ab initio. This was well corroborated by DW2, Madulesi Haroun, a Land Surveyor of Ubungo Municipal Counsel. That is why the land in question was renamed from Plot number 243 to 471 Block G. However, as per the evidence in question, the respondent was the first to purchase the suit land, hence, basing on this fact, it is obvious he is the one entitled to own it. His evidence was heavier than that of the appellant. That, he won on that basis as stated in Hemed Said versus Mohamed Mbilu (1984) TLR 113. Therefore, it is obvious that the appellant failed to prove his case at the Trial Tribunal, as required under Section 110(1), 111, 112 and 113 of the Evidence Act, Cap 6 R. E. 2019. Arguing on the 2nd ground, the respondent's counsel insisted that, the appellant failed to prove that, the seller Said Nassoro Magondeka was not the owner of the suit land. However, at the Trial Tribunal, the respondent managed to show how he acquired the land in dispute through Exhibit D2 and the testimony of the daughter of the seller, DW2, and also the testimony of DW5. Further, the contention that the seller had no title to pass to the respondent is a new issue, not discussed at the Trial Tribunal, hence it has to be disregarded. On the 4th ground, Mr. Kabuzya insisted that, the Trial Tribunal evaluated properly the evidence in question and arrived to a just decision. Therefore, the case of National Microfinance Bank (NMB) versus Chama cha Kutetea Haki na Maslahi ya Waalimu Tanzania (Chakamwata), (supra), supports the respondent than the appellant in this case. 4 In his brief rejoinder, Mr. Ndibalema reiterated his submissions in chief on the 1st 2nd and 4th grounds. He insisted that, the appeal has merits and should be allowed. After considering submissions of the parties and record at hand, I now have to determine merit of the Appeal. I have gone through Exhibit Pl (a Letter of Offer) and Exhibit D18 (a letter from Mr. Fadhili S. Hussein, on behalf of the Ubungo Municipal Counsel). Both documents describe the land in dispute to be Plot No. 471 Block G. According to Exhibit Pl, the suit land was formerly known as Plot No. 243 Block, now Plot No. 471 Block G. The owner of the said land is named as per Exhibit Pl as D. B. Ruhinduka (the appellant). Further, Exhibit D18 describes the size of the land to be 2206 sqm. The same details, in terms of name of the owner, size, uses and location of the suit land, appear on Exhibit P3, Land Rent Assessment, dated 03/12/2007. But again, there is Exhibit P4, a letter from H. M. Mgaya, a Land Surveyor for Kinondoni Municipal Council, dated 21/07/2009, sent to the Kinondoni Municipal Land Officer, and a copy to the appellant, the same has explained on the changes on the number of the suit land, from 243/1 to 471 Block G. The said letter ordered the addressee to rectify his information regarding the land in question. When considering Exhibits highlighted above, it is evident that the Land Authorities are all indicating to know the suit land to belong to the appellant and not the respondent. It is further a clear fact that the documents tendered and admitted as Exhibits above were not dispute at the Trial Tribunal, as to their authenticity or legality. 5 This leaves me with a question wondering why then, the learned Chairman disregarded evaluating all of them and went on to focus on Exhibit D2, a Sale Agreement between Nassoro Said Magondeka and the respondent. As much as Exhibit D2 is valid evidence, I agree with the appellant's arguments that the same is vague and unreliable as far as the proof of this dispute is concerned. Exhibit D2 does not describe the size of the land sold to the respondent and also does not show the exact boundaries. There is a side of the land that was not explained as to who borders the same. Under such circumstances, the Chairperson of the Trial Tribunal, failed to evaluate properly the evidence before him. The Trial Chairman disregarded the value of the appellant's evidence on ownership of the suit land, in favour of that of the respondent, basing solely on Exhibit D2, as corroborated by D12 (application letter to TANESCO), Exhibit Dll (business license and tax clearance certificates) of which are of less weight. These documents could have helped the respondent if he had such documents as those produced by the appellant or even where he had disputed the legality of the appellant's documents or if such documents were analysed and discredited. By leaving out such discussion, the Trial Chairman has created doubt on the evaluation of evidence, in particular the documents tendered. Looking on balance of probability rule, in my settled opinion, the evidence of the appellant was heavier than that of the respondent, see in Hemed Said versus Mohamed Mbilu, (supra). The evidence shows that the appellant is the rightful owner of the suit land as opined by the wise assessor, Professor Kulaba. He managed to discharge his legal burden of proof at the Trial Tribunal, see Sections 110, 111, 112 and 115 of the Evidence Act, Cap 6 R. E. 2019. It is immaterial what was done 6 during the survey of the land in question, what matters, the land authorities allocated the same to the appellant. His occupancy on the disputed land is intact to date. The evidence given by the respondent was weak and circumstantial. This convinced this Court that, the respondent is a trespasser, as shown by Exhibit D18. He has acquired part of the appellant's land, a total of 1640sqm illegally, as he is named in the said Exhibit. It is evident that, the learned trial Chairperson misdirected himself, when he decided the matter in favour of the respondent relying on the reasons he explained. For these reasons, I find merits on the 1st, 2nd and 4th grounds of appeal. Hence, I allow them accordingly. That being said, it is my further view that, the findings in the 1st 2nd and 4th s ground of appeal are capable of determining the instant appeal to its end. Therefore, there is no need to discuss the remaining ground of appeal, the 3rd ground to be precise. In the event, the appeal is allowed with costs. The Judgment of the Trial Tribunal is quashed and the Orders are set aside. The appellant is declared to be the rightful owner of the suit land. The respondent is a trespasser and should vacate the suit land. Ordered accordingly. T. N. MWENEGOHA JUDGE 29/09/2023 7