domick makanze vs senkondo lugoda 2013 tzhc 2108 28 november 2013

IN THE HIGH COURT OF TANZANIA (TANGA REGISTRY) AT TANGA LAND CASE APPEAL NO. 24 OF 2008 (From the Decision o f the District Land and Housing Tribunal of Tanga District at Tanga in Land Case Appeal No. 35 of 2007 and original W ard Tribunal of Kwamkonje Land in Application , No. 3 Of 2007) DOMINICK MAKANZE ................................. APPELLANT VERSUS SENKONDO LUGODA.1............................... RESPONDENT JUDGMENT MURUKE, J. This is a second appeal by the appellant after he lost his case in the Kwakonje Ward and later dismissal of his appeal by the District Land and Housing tribunal of Tanga District. The appellant maintained in both Tribunals that he built the disputed house on his own plot for his father in law, one Ibrahim Barna or Ibrahim Samalia before the house was later borrowed by the respondent who has lived in it s'ince 1986. The respondent has contended in rebuttal that he purchased the suit house form Ibrahim Barna in 1984 and has owned the same since then. The District land and Housing Tribunal has of the view that the respondent has been in occupation of the disputed premises beyond the limitation period set by law and dismissed the appeal. Dissatisfied with that decision the appellant priffered his appeal to this court on the reasons I quite here murder. * t t * , ~ ' “ 1. That the trial Tribunal erred in law at fact when decided th atJ suit house. belonged to the respondent without considering clearly that the respondent borrowed it from the appellant’s father in law on agreement that he will not build any other house therein. 2. That the Trial Tribunals misdirected on point of law without considering clearly the appellant’s evidence which prove cleary that the suit house belonged to the appellant. 3. That the trial Tribunals misdirected on point of law when they decided that the suit house belongs to the respondent after he purchased it by price of Tshs. 7,000/= but the said respondent didn’t produce any document to prove they said sale transaction. 4. That the Chairman misdirected on point of law without considering clearly the opinion of lay members who sate into him on housing appeal No. 35/2007. 5. That the trial tribunals misdirected on point of law i , , T ’ without considering clearly that the disputed suit house wasA already since 28/04/2005 by the Primary Court of Chanika Handani District vide Civil Case No. 127/2004 whereby the judgment was entered in favour of the appellant (a copy of the said judgement hereof annexed for court reference).” The grounds of appeal were referred in writing by the appellant in person and by Mrs. Kabwanga advocate for the respondent. The appellant’s submissions are divided in 10 paragraphs. In paragraph 1 to 5 of the submissions the appellant states facts that he is the one who built the suit house and allowed his father to stay there in. He adds that the respondent came later and requested from the appellant’s father for place to stay. Appellant’s father honoured the request with a condition that the respondent shouldn’t pay rent and should not add any structure on the compound. The respondent started claiming ownership of the house after death of the appellant’s father. The appellant argued that it is impossible for one to sell a house without involving his family members. Paragraph 6 to 10 of the appellant’s submission is almost quotation of the grounds of appeal I have reproduced above. i > Mrs Kabwanga submitted against the 1st and 2nd grounds of appeal that the District Land and Housing Tribunal decided the matter in the right direction. There is no proof orally or in writing to substantiate the fact that the respondent borrowed the suit hpuse from the appellant’s father in law. She argued' that the house belonged to the deceased appellant’s father in law and even if it is asked that the appellant is one of the heirs to the estates yet there is no proof that the appellant is the legal personal representative of the deceased. Mrs. Kabwanga maintained that there is evidence that the respondent purchased the suit house for Ibrahim Barna in 1984 and stayed in it undisturbed for over 27 years. Even after death of the said Ibrahim in 1993 the appellant didn’t raise any claims. The counsel for the respondent submitted in reply to the 3rd ground of appeal that the period at which, the respondent has occupied the suit house suffices to support the respondent’s title over the disputed house and it is irrelevant to question legality or otherwise of the sale agreement effected 28 years1-age. She argued against ground No. 4 of appeal that under section 24 of the Land Disputes Court Act; A c tJNo. 2 of 2002’ a Chairman of the District Land and housing Tribunal isn’t bond by the opinion of the assessors provided that reasons for departing from assessors’ opinions are given. Mrs Kabwanga’s contention on the 5th ground of appeal is fact the Handeni District Court never determined ownership of the suit land. The counsel argued further that if the appellant had such a ground, he had to raise it during hearing of the dispute at the lower level. Failure of which disqualifies the ground itself. Having read record of both "Tribunals below, the grounds of appeal, both parties’ submissions, 1 find that grounds of appeal No. 1, 2 & 3 are related I will therefore deal with them all together. . As I stated in the opening paragraph of this judgment that the appellant has all along been contending that the t^ t disputed house was 'borrowed»by the respondent from the appellant’s father in law. The respondent on the other hand has insisted that he' purchased the suit house from the appellant’s father in law one Ibrahim Barna (Samalia) in 1984. It is a principle in evidence as per section 110 (1) of the Evidence Act that he who asserts must prove. The question is whether parties discharged this duty to warrant decision in their favour. In his evidence before the trial Kwankanje Ward Tribunal the appellant said the suit house was built by his father in law Ibrahim Barn and when questioned by the Ward Tribunal members he said the land on which the suit house is build is his but not the house. The appellant adduced no other evidence. It is an records that he has never occupied or used the suit land from 1984 the year the respondent claims to have bought the land. In countering the appellant’s contentions the respondent produced a sale agreement showing that he purchased the suit land on 15/05/1984, the sale that was witnessed by Kwachaga Tuliani village leadership. There is a letter from the - Kwachaga Tulian village dated 11/02/1991 acknowledging the respondent’s ownship of the suit land. The respondent also called one Mzee Tambue, one of the Kwachaga tuliani village leaders in late 1980’s and early 1990’s. His evidence is that the suit land f 4 * belonged to Ibrahim Samalia'' and their leadership was informed that the respondent purchased the land in issue from Ibrahim Samalia. Both, the appellant and Mzee Tambue conceded that the respondent has been in occupation of the suit land for a very long time. From the evidence I have summarised, it is clear that the appellant didn’t own the suit land. His evidence that the disputed house belonged to Ibrahim Barn supported by Mzee Tambue’s evidence that the suit land belonged to Ibrahim Barna prove on the required standards that Ibrahim Barna was the owner of the disputed land and not the appellant. The appellant’s claim that he owns the land and not the house is baseless is the house and the land on which it stands can’t be separated - quic quid plantation 7 solo solo audit. Having found that the appellant’s father in law was the lawful original owner of the suit land, I find that sale of the land to the respondent is also lawful. There is no evidence whatsoever proving that the respondent borrowed the suit house from the appellant’s father or that the suit house belongs to the appellant in law a part from the appellant’s own assertion I concur with Mrs. i » Kabwanga’s submission and Chairman that the fact that / the respondent has been in actual occupation of the disputed land for over 28 years now bars the appellant’s claim over the land. Even if the respondent had been a trespasser on the said land which isn’t the case though, by now, should have already acquired ownership of the land by adverse possession. Given what 1 have already considered, I find that this is a fit case where the trial court’s .• decision should be left undisturbed. In Ali Abdallah Rajab V. Saada Abdallah Rajab (1994) TLR 133, the court of Appeal at Tanga held that where a case is essentially one of fact, in the absence of any indication that the trial court failed to take some material point or circumstances into account, it is in proper for the appellate court to say that the trial court came to erroneous conclusion. So for I haven’t found any indication that the Kwankaje land Tribunal failed to take some material point dr circumstances into account. The first three grounds of appeal fail. On the 4th ground of appeal, I agree with Mrs. Kabwanga’s argument that under section 24.of the Land District Court Act, Cap. 216 of the Laws of the country, a chairman of the District land and Housing tribunal is not bound by the decision of his assessors provided that he has supplied ground for departing from the assessor opinions. Hon B. K. Kishenyi chairman said in his judgment that he deputed from the assessors’ opinions because it was evidence that the respondent had occupied the suit land beyond the limitation period set by law. To me the requirements under section 24 of the land Disputes courts Act are fully satisfied. I now turn on the 5th ground of appeal. It is clear from the records that decision of the Chanika Primary court delivered on 28/04/2005 in Civil Case No. 127/2004 was not the issue before the trial Kwankanje Ward Tribunal and even in appeal before the District land and Housing Tribunal in this court. In the case of Makori Wasaga Vs Joshua Mwaikambo and Another (1987) TLR 88 at page 92 the court of Appeal if Tanzania held “... a party is bond by his pleadings and can only succeed according to what has t averred in his plaint and proved in evidence he is riot permitted to set up a new case”. Looking at the circumstances at handJ it is easy to realise that the appellant is trying to raise a new issue of res judicata while the issue hasn’t raised in the trial court or in the first appellate court and no evidence was led to the effect. At this stage this court can’t entertain such an issue. Secondly from the evidence adduced by both parties in the trial ward Tribunal, the respondent preferred an appeal to Handeni District Court that ordered the matter to be tried by land courts. Quoting the appellant’s own words in the trial Land Tribunal he said "... mjumbe wa Serikali ya Mtaani kwangu akamwambia Senkondo ameleta samansi kutoka Handeni, nikasaini... Hakimu akaniita kuwa tusubiri Jajimenti ya mtaa ikatwe, ilipokatwa tulipewa barua 10 kila mtu yake. Kwa kilupi hakimu alivyoeleza kesi hii inarudi nyumbani kwenye baraza la ardhi la kijiji. Tulivyorudi ke'si ilibidi ifunguliwe...” Amazingly at this stage the appellant has attached only the Primary court’s decision but has kept the District Court’s decision and the letter that directed them to take the r matter to the Land 'Courts. <Can this court say, :he Has come with clean hands. Certainly not! !•' A J I. • In the upshot, this appeal is devoid of merits and it is hereby dismissed in its entirety with costs in this court and the Tribunals below. JUDGE u DATE: 28/11/2013 Coram: P.C. Mkeha, DR Appellant: Absent Respondent: Absent C/Clerk: Noel Court: Judgm ent is delivered in the absence o f the parties on this 28th day of Novem ber, 2013'.