elay n mahava vs emilia m fungo as administratrix of teh estate of the late lutabiko n fungo 2023 tzhc 20026 11 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) AT IRINGA LAND APPEAL NO. 44 OF 2022 (Original Application No. 11/2015 of the District Land and Housing Tribunal for Njombe at Njombe before Hon. M. Musa, Chairperson.) ELAY N. MAHAVA ........................ APPELLANT VERSUS EMILIA M. FUNGO (As administratrix Of the estate of the late Lutabiko N. Fungo) ........................ RESPONDENT JUDGMENT 13hJune & 11th August, 2023 I.C. MUGETA, J: The main contention between the parties is ownership over a farm of trees measuring 3 acres situated at Lumage village, Iniho ward within Makete District. In 2013 the appellant allegedly, invaded the suit land by harvesting trees claiming the land to be his as he inherited it from his late father, Nyumu Mahava who died in 1998. As a result, the respondent sued the appellant before the District Land and Housing Tribunal (DLHT), among others, for a declaration order that she is the lawful owner of the said land. Based on the evidence adduced before it, the tribunal was convinced that Page 1 of 12 the suit land belongs to the respondent and awarded her general damages of Tshs. 20,000,000/= and costs of the suit. The appellant seeks to challenge that decision based on three grounds. The 1st and 2nd grounds are related. They concern assessors involvement in the proceedings and giving their opinion. I shall consolidate them to one complaint, thus, making a total of two grounds which are: 1. The tribunal assessors were not fully involved in the trial and they did not give their opinions. 2. The trial tribunal failed to analyze the evidence adduced by the parties, thus, reached an erroneous decision. The appeal was argued by way of filing written submissions. The appellant was unrepresented whereas the respondent enjoyed legal representation of Marco Kisakali, learned advocate. In supporting his appeal, the appellant submitted that it is trite law that assessors should fully participate in the proceedings before the tribunal from commencement of hearing to judgment. He submitted further that section 23 (1) and (2) of the Land Disputes Courts Act [Cap. 216 R.E 2019] provides for composition of the tribunal being the Chairman sitting with two assessors. Further, that Regulation 19 (2) of the Land Disputes Page 2 of 12 Court (The District Land and Housing Tribunal) Regulations, 2003 provides that assessors are required to give their opinion before judgment is composed. In the present case, he argued, the proceedings do not show that the Chairman required the assessors to give their opinion and that the same was read to the parties so as to know their opinion. Upon closure of the case, the matter was fixed for judgment. He cited the case of Zubeda Hussein Kayagali v. Oliva Gaston Luvakule& Another, Civil Appeal No. 312/2017, Court of Appeal - Tabora (unreported) and Tubone M warn beta v. Mbeya City Council, Civil Appeal No. 287/2017, Court of Appeal - Mbeya (unreported) to support his argument that the assessors' opinion ought to be reflected in the proceedings and read to the parties so as to enable them to know the nature of the opinion. On the 2nd ground, he argued that his evidence was based on long occupation of the land contrary to the respondent's evidence which was contradictory. He argued further that his father had been in occupation of the land since 1961 till his death in 1998. He harvested trees in 1999, 2006, 2009 and 2013. In his view, the tribunal erred in faulting the late appellant's appointment to administer the estate of his deceased father. The respondent's counsel conceded the appellant's complaint on the full involvement of assessors. He urged the court to nullify the tribunal's judgment and proceedings from the beginning to the day before the matter was fixed for judgment and order the Chairman to require the assessors to give their opinion. Alternatively, the court to nullify the entire judgment and save the pleadings as they are without any irregularities. Regarding the complaint on evaluation of evidence, the respondent's counsel argued that the tribunal properly decided the matter on balance of probabilities as required in civil cases. In his view, the respondent's evidence was strong and consistent compared to that of the appellant. The respondent's evidence was well corroborated by that of the witnesses she called. On the contrary, the appellant's evidence was inconsistent as in his Written Statement of Defence, he averred that the suit land belongs to him. However, in his testimony he stated that the land belonged to his father. He, thus, deviated from his pleading. In his rejoinder, the appellant reiterated his submissions in chief. The main complaint in the 1st and 2nd ground is that assessors were not fully involved in the hearing of the matter before the tribunal in that they were not required to give their opinions. Indeed, the record of the Page 4 of 12 tribunal do not show that the Chairman required the assessors to give their opinion or that the opinion was read in the presence of the parties. The record only shows that upon closure of defence case, the matter was fixed for judgment on 20/12/2017. However, on the day the judgment was not delivered. The tribunal fixed the date for visiting locus in quo. Subsequently, the tribunal visited the locus in quo on 26/2/2018 and judgment was delivered on 28/2/2018. As rightly argued by the appellant, Regulation 19 (2) of the Regulations requires every assessor to give his opinion in writing. Indeed, the assessors gave their opinion in writing as the same is on court record. In Tubone Mwambete case (supra), the Court held as follows: "since Regulation 19(2) of the Regulations requires every assessor present at the trial at the conclusion of the hearing to give his opinion in writing, such opinion must be availed in the presence of the parties so as to enable them to know the nature of the opinion and whether or not such opinion has been considered by the Chairman in the final verdict." This case did not decide that assessors' opinion ought to be reflected in the proceedings. The record contains the handwritten opinion of both Page 5 of 12 assessors who sat with the Chairman from the beginning to the end of trial. They are, 0. Mwapinga and M. Mtweve. The only irregularity is that the record does not show when the Chairman required the assessors to give their opinion and the said opinions were not read to the parties. The opinion on record was considered by the Chairman at page 4 of the judgment. The issue for my determination it whether the omission to require the assessors to give their opinion and not to read the same to the parties accessioned a failure of justice considering the circumstances of this case. It is my view that the irregularities are curable under section 45 of the Act which provides: - "No decision or order of the Ward Tribunal or District Land and Housing Tribunal shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings before or during the hearing or in such decision or order or on account of the improper admission or rejection of any evidence unless such error, omission or irregularity or improper admission or rejection of evidence has in fact occasioned a failure ofjustice." I hold that view because the importance of reading the assessor's opinion as per the decision in Tubone Mwambete case is to enable the Page 6 of 12 parties to know the nature of the opinion and whether the Chairman considered the same in his decision. In this case the assessors' opinions are on record which means the chairman, at a certain point in time, required the assessors to give the same. I have formed this opinion because the record shows that there are instances where the chairman consulted assessors in chamber. The point in issue concerns the decision to visit the locus in quo after the court had fixed the case for judgment. At page 36 of the typed proceedings the chairman states: Tribunal: "There is a need for the visit and even assessors have proposed the same" This is a clear reflection that there was informal consultation between the chairman and his assessors. Logically, therefore, the chairman required the assessors to write their opinion and that way the opinions found their way into the case file. In his judgment, the chairman considered those opinions and agreed with them. Therefore, the case of Zubeda Hussein Kayagali (supra) is distinguishable because in that case the opinions were not on record. The facts in Tubone Mwambete case (supra), admittedly, are somewhat similar to this case in that the opinions were also on record but were not read to the parties and it was unclear as to when they were filed. The Court of Appeal proceeded to quash the judgment on account of the said irregularity. However, I hold that the same is also distinguishable with the present case as in that case the Court of Appeal did not consider the import of section 45 of the Act. In this case, both the appellant and the respondent have not stated how they have been prejudiced or any injustice occasioned by the omission. I do not find one too. This ground fails. The appellant's 2nd ground is on evaluation of evidence. He alleges that his evidence was heavier. In reaching its decision, the tribunal found the respondent's witnesses reliable as they have farms bordering the suit land. The learned chairman further found that their evidence at the tribunal was corroborated by the evidence recorded at locus in quo unlike the appellant whose witnesses were found unreliable. The decision, therefore, depended on credibility of witnesses. Is the findings of the tribunal correct? The respondent who testified as (AW1) said that her late father acquired the suit land by clearing virgin land a fact which is supported by the appellant's witness, Hosea Kyando (RW3) who testified that the late Mlangi Fungo acquired his land personally after working on unoccupied land. Those respondent's witnesses (AW3 and AW4) are neighbors to the suit land. They all testified that they do not know the appellant and have Page 8 of 12 no land at the suit area. AW3, Tukongene James Fungo who is also a member to the village council testified that: "I am council member to our village...The respondent (now appellant) and his relatives have never resided in our division." The respondent (RW1) on the other hand testified that his late father died in 1998 at the suit farm and he owned 15 acres of trees there. According to Mwanandege Fungo (RW2), the respondent's father died in 1970s. This is contrary to the appellant's testimony that his father died in 1998. Hosea Kyando (RW3) testified to have witnessed the respondent's father allocated land but he does not know the size of the land. He testified further that his land borders the land of both parties. When the tribunal visited the locus in quo, it found that Mwanandege Fungo's land does not border the suit land. The same applies to Hosea Kyando (RW3). The respondent also proved that Kyando has no land there when cross examined at the locus in quo. There is no evidence on record to the contrary. This means that Mwandege (RW2) and Hosea Kyando (RW3) are not witnesses of truth. The finding of the tribunal in its judgment that they are unreliable, therefore, is correct. Page 9 of 12 The complaint of the appellant that the tribunal faulted him for being appointed late to administer his father's estate is misconceived. Let the judgment of the tribunal speak for itself: "The respondent in his written statement of defence said such land is his own he acquired it over 56 years back. At the hearing he said it is his father acquired it in 1961 and the respondent is the administrator of the estate of his father who died in 1998 and the respondent was appointed in 2015 which means 17 years late after the death of his father". It is my view that the point in issue is the contradiction between the appellant's pleading in the WSD with the evidence he gave regarding whether the dispute land is his or he inherited it. Indeed, in my view, the pleadings and the evidence conflicted. In evidence he said he inherited the land while in pleadings he said he owned the land for the past 56 years. It is for that reason the tribunal held that the appellant is unreliable. I agree with the learned chairman. At the locus in quo the respondent showed the dispute land to be 3 acres. In his evidence the appellant said it is 15 acres. He also testified that he harvested tree at the suit land in 1996, 2006, 2009 and 2013. However, At At* Page 10 of 12 at the locus in quo he changed the story. This is what he said at the focus quo when asked questions by assessor Mr. Mwapinga: "I have never harvested trees on the suit land but it is applicant harvesting trees. Those I harvested in 1999, 2006, 2009 and 2013 are on other area within my 15 acres not here in the dispute area". It is my view that the inconsistencies in the evidence tendered by the applicant cannot be reconciled. On the other had the respondent and her witness were consistent that the suit land belonged to the respondent's late father. Having reviewed the evidence above, I find no reason to fault the trial tribunal in declaring the respondent the lawful owner of the suit land. The decision of the tribunal is hereby upheld. In the event, I dismiss the appeal for want of merits. I do so with costs. I.C. MUGETA JUDGE 11/8/2023 Page 11 of 12 Court: Judgment delivered in chambers in the presence of the appellant in person, Marco Kisakali, learned advocate for the respondent who is absent. Sgd. I.C. MUGETA JUDGE 11/8/2023 Page 12 of 12