elizabeth elifuraha vs salehe hoseni mani 2023 tzhc 23066 22 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT MOSHI MISCELLANEOUS LAND CASE APPEAL NO. 4 OF 2023 (Arising from Land Appeal No. 03 of 2023 of Same District Land and Housing Tribunal, originating from Land Case No. 09 of 2021 of Maore Ward Tribunal). ELIZABETH ELIFURAHA………………………………. APPELLANT VERSUS SALEHE HOSENI MANI ………………………........ RESPONDENT JUDGMENT 26/10/2023 & 22/11/2023 SIMFUKWE, J Before Maore Ward Tribunal (the trial Tribunal), Salehe Hoseni Mani (respondent herein) instituted a land dispute against Elizabeth Elifuraha (the appellant herein) alleging that she had trespassed into his land measured three quarter acres located at Maore Village in Same District. The respondent alleged that the said disputed land belonged to his aunt the late Mwanaidi Mani. That, after his aunt’s death, the said land was given to him by the family meeting. His witnesses supported the evidence that the said land was given to him because he took care of his aunt Mwanaidi. 1 On part of the appellant herein, she told the trial Tribunal that the disputed land belonged to her as she bought it in 1990 from one Mzee Rashid Mweta. After scrutinizing the evidence which was placed before it, the trial Tribunal decided in favour of the appellant herein. The respondent was aggrieved, he preferred the appeal before the District Land and Housing Tribunal for Same at Same (Appellate Tribunal). The appellate Tribunal nullified the Ward Tribunal’s proceedings and judgment and advised the party who desires to re-institute the matter to do so in accordance to the law. The appellant herein was aggrieved, she filed the instant appeal having the following grounds of appeal: 1. That, the appellate tribunal erred in law and facts for deciding that since the documents which were tendered by the parties and which were received and acted upon by the ward tribunal were not present in the case file at appeal, the decision of the ward tribunal was composed from air while it was based on the evidence given by the parties, both oral and documentary. 2. That, the chairman for the appellate tribunal erred in both law and facts for holding that the opinion of each member does not show who is the winner between the parties while the majority members who heard that case made it clear that the evidence of the respondent was weak and worthless showing that he failed to prove the case which he had filed. 2 3. That, the first appellate tribunal grossly erred for raising, discussing and making decision on a new issue without giving an opportunity to the parties to address him on that issue. 4. That, the chairman of the appellate tribunal erred in nullifying, quashing and setting aside the decision of the ward tribunal without justifiable legal reasons. During the hearing, the appellant was represented by Mr. Erasto Kamani learned counsel while the respondent was represented by Mr. Goodluck Michael, learned counsel. Mr. Kamani started to submit in support of the 3rd ground of appeal to the effect that the chairman raised, discussed and made decision on a new issue without giving opportunities to the parties to address him on that issue. He explained that the grounds of appeal were three which the Chairman was bound to decide. However, in the course of composing judgment, the Chairman raised a new issue at page 3 of his judgment that the sale agreement which was being referred to in the petition of appeal and the minute of the respondent’s family meeting were absent in the original file and that a decision of the trial ward tribunal was made from the air. Mr. Kamani said that, it is not clear what he actually meant when he said that the documents were missing and the decision was made from the air as the Chairman raised this issue, discussed it and finally made a decision on it without giving the parties opportunity to address him on the said issue. 3 He went on to state that, it is settled law that a judge is obliged to decide the case on the basis of the issues on record and when a new issue crops up in the cause of composing judgment, that new issue should be placed on record and parties must be given opportunities to address the court on it. To buttress his argument, the learned counsel referred to the case of Said Muharam Said vs Muhusini Amiri and Muharam Juma, Civil Appeal No. 110 of 2020, (unreported) in which the Court of Appeal at page 6 stated as follows: “The more so, a trial judge is obliged to decide the case on the basis of issues on record. As to what should a judge do in the event a new issue crops up in the due course of composing judgment, settled law is to the effect that the new question or issue should be placed on record and the parties must be given opportunities to address the court on it.” Mr. Kamani proceeded to state that in the cited case, the Court concluded that, when parties are denied opportunities to be heard on new raised issues, the proceedings and orders made therein become a nullity even if the same decision would have been reached had the party been heard. He quoted page 9 of the cited decision where it was stated that: “The next issue to deal with is what are legal consequences of failure to afford a party hearing before any decision affecting his rights is given, settled law is to the effect that any breach or violation of that principle renders the proceedings and orders made therein a nullity even if the 4 same decision would have been reached had the party been heard.” The learned counsel asserted that, since the chairman did not afford opportunities to the parties to address him on the new issue that he raised in the course of composing judgment, his proceeding and the order thereto are a nullity and the same cannot be condoned. On the first ground of appeal, Mr. Kamani submitted that the Chairman of the 1st appellate tribunal misdirected himself when he concluded that the decision of the trial tribunal was made from the air simply because the Chairman did not see the sale agreement which was referred to by the respondent in his appeal and the minute which was produced by the respondent at the trial tribunal. In the first place, the learned counsel observed that, the decision of the trial ward tribunal does not imply that it was composed from the above-mentioned documents since it shows clearly that, it is based on oral evidence given by the parties which is in the record of proceedings of the trial ward tribunal. The appellant’s advocate explained further that, the decision by the 1st and 5th members of the trial ward tribunal that the respondent failed to prove where he had obtained the alleged minute of clan meeting was based on the respondent's own oral evidence and not from air as suggested by the chairman of the appellate tribunal. He referred to page 3 and 4 of the trial tribunal’s proceedings and argued that, when the respondent was cross examined as to where he obtained the minute he had tendered, as he had failed to produce any in the previous cases, he answered as follows: 5 Pg3. "Niliipata kwenye mahakama inayohusika na kesi za shamba". Pg4. "Nimeipata kupitia baraza la ardhi.” From the above answers, Mr. Kamani was of the view that, the 1st and 5th members concluded that the respondent failed to explain where he obtained the minute he had tendered because land tribunals do not keep minutes of the family meetings or issue land titles to individuals. Further to that, Mr. Kamani supported the findings of the 2nd member of the trial Tribunal. He argued that the 2nd member’s opinion that there is a contradiction between evidence of the respondent and his witnesses about the number of the farms which the respondent claimed to had been given was based on the evidence of the respondent himself and his second witness. That, it is apparent at page 4 that the respondent claimed to have been given one farm, while at page 9 of the proceeding his second witness told the tribunal that he obtained two farms. In respect of the 3rd member’s opinion that there is a contradiction between evidence of the respondent and his witnesses concerning the year in which the respondent was given the suit land; Mr. Kamani averred that, the said evidence is based on oral evidence of the respondent and his witnesses. He referred to page 4 of the trial tribunal’s proceedings to buttress the noted contradiction. The learned advocate stressed that, the opinion of each member is based on the evidence on record specifically the oral evidence which was adduced by the respondent and his witnesses. That, their opinions are not 6 found in the sale agreement or in a minute of the respondent's family meeting nor have they been formulated from the air as stated by the appellate Chairman. Thus, the act of nullifying the trial tribunal’s decision basing on the reason that it was made from the air has no justification. With regard to the 2nd ground of appeal, the learned advocate challenged the findings that the opinion of each member does not show who is the winner between the parties. He explained that, it is clear that the majority members who heard that case decided that evidence of the respondent was weak and worthless implying that he failed to prove the case which he had filed. It was submitted further that; members of the trial tribunal resolved the dispute among the parties. They analysed evidence of the parties on record and came to the conclusion that the respondent had failed to prove his case by considering that the respondent was the one who had filed complaints in the trial ward tribunal as the owner of the suit land. That, according to section 110(1) (2) of the Evidence Act, CAP 6 R.E. 2019 he was the one who had the burden to prove his allegation. That, having heard and analysed evidence of the parties, the first member decided that the complainant (respondent) had failed to prove to the tribunal how he obtained the minute that he had tendered because tribunals do not stay with the minutes of family meetings. The second member concluded that evidence of the respondent contradicts with the evidence of his witnesses on the issue of the number of farms which the respondent claimed to be given. That, the third member decided that evidence of the respondent contradicts the evidence of his witnesses about the year in which the respondent says he obtained the suit land. 7 While the fourth member decided that the appellant (Mlalamikiwa) went with the sale agreement which shows that she purchased the suit land in 1990 from one Rashid Mweta. Lastly, the fifth member held that the explanation by the respondent that he obtained the suit land from the ward tribunal is not true because the tribunal does not issue land titles to individuals. Mr. Kamani contended that, each of the member was of the opinion that, the respondent’s evidence failed to prove his claims. That, section 4(5) of the Ward Tribunal Act, Cap 206 R.E. 2019 makes it clear that a decision of majority members present at a sitting shall be deemed to be a decision of the tribunal. He opined that since the majority members who were present at the hearing of that case gave a decision which shows that the respondent failed to prove his case, that was the decision of the trial tribunal. Thus, the findings by the first appellate Tribunal that each member was supposed to declare the winner or that the tribunal was supposed to compose judgment from the opinions of the members has no legal basis. Mr. Kamani elaborated further that, the duty imposed to the members present at any sitting by section 4(5) of the Ward Tribunal Act (supra) is to make a decision. That, the section does not direct that for a decision made by the ward tribunal to be valid it should declare the winner nor does it give the modality on how such decision should be or should look like. He said, there is no law which states that a decision of the ward tribunal is composed from opinions as the law is very clear that the duty of any member present is to give his decision and the decision of the majority members, is what is deemed to be a decision of the tribunal. 8 The learned counsel insisted that, the decision made by the Chairman of the appellate tribunal of nullifying the decision of the ward tribunal for the reason that members did not declare the winner is wrong and unjust. In his conclusion, based on what he submitted, Mr. Kamani prayed that the judgment and order of the first appellate tribunal be nullified, quashed and set aside with costs. Countering the 3rd ground of appeal that the Chairman of the appellate tribunal raised new issue without giving the parties right to address him on that issue, Mr. Goodluck submitted that the allegation is not true due to the fact that the issue of the appellant’s Contract was not a new issue as it was clearly discussed by respondent herein before the appellate Tribunal on his third ground of appeal. That, the appellate tribunal while determining the 3rd ground of appeal realized that even the purported referred contract was not tendered before the trial tribunal and did not form part of evidence before the trial tribunal. In alternative, Mr. Goodluck was of the opinion that, even if the appellate Tribunal made a decision on a raised new issue without giving parties an opportunity to submit on such new issue, it doesn’t guarantee the appellant herein to win this appeal since the only remedy for both parties is to get an opportunity to address the issue raised by the appellate Tribunal before such Tribunal. He distinguished the case of Said Muharam Said (supra) to the present case. He stated that, the cited case cemented their argument that the only remedy was to afford both parties with an opportunity to address the new issue raised by the appellate Tribunal. 9 In reply to the first ground of appeal, Mr. Goodluck submitted to the effect that the appellate Tribunal was correct when it decided that the purported Contract (Sale agreement between Rashidi Mweta and Elizabeth Elifuraha) and minute referred by the respondent and his witnesses, were not before the trial tribunal. That, when the appellate Tribunal called for the records of trial tribunal to decide the appeal it realized that such documents referred above were not in the file of the trial Tribunal. Responding to Mr. Kamani’s argument that the decision by the trial tribunal does not imply the mentioned documents but it was based on oral evidence given by the parties, Mr. Goodluck submitted that the decision of the trial Tribunal was based on opinions given by the elders which were found in the document named MAONI YA WAZEE especially MZEE No. 3 who said that: “M/kaji amesema shamba hilo amelipata mwaka 1970 wakati kwenye Muhtasari wa kikao cha ndugu kinaonyesha M/kaji alipewa Mwaka 1995”. The learned counsel also referred to MZEE NO. 4 who said that: “M/Kiwa alikuja na hati ya manunuzi inayo onesha alinunua shamba hilo mwaka 1990 kutoka kwa Rashid Mweta.” Mr. Goodluck was of the opinion that the two different opinions above proved that the decision of the trial Tribunal imply the documents mentioned by parties while the same were not in the record of the trial Tribunal. 10 Responding to the argument that the opinions of the 1st and 5th members of the Ward Tribunal show that the respondent failed to prove where he had obtained the minute of the clan meeting, Mr. Goodluck was of the view that the opinions were not given by members of the Tribunal instead was given by elders (wazee) in the document named MAONI YA WAZEE. Second, he said that such opinions dealt with the issues of minute and does not touch the issue of ownership of the land. Thus, the appellate tribunal was correct to nullify the proceedings, judgment and decree of the trial Tribunal on the reason that the decision was based merely on assumption of documents which were not produced by parties before the trial tribunal and some opinions were given by elders (wazee) contrary to section 15(3) of the Ward Tribunals Act (supra) which stipulates that: "In exercise of its functions under this Act a Tribunal shall have power to hear statements of witnesses produced by parties to complaint and to examine any relevant document produced by any party.” In reply to the second ground of appeal, Mr. Goodluck submitted that the appellate Tribunal was correct to nullify the proceedings and quash the judgment of the trial Tribunal as there were no opinions given by any member of the trial Tribunal in respect of the dispute of ownership of land between the parties. The learned advocate continued to state that, the respondent herein was supplied with the copies of proceedings and judgment only, without any copy of opinions of the Members of the Ward Tribunal when he appealed before the appellate Tribunal. That, among his grounds of appeal was to 11 challenge the issue of opinions of the members of trial Tribunal that the trial Tribunal erred in law and facts for failure to show and analyze the opinions of the members of tribunal and the reasons for its decision. The learned counsel believed that, the purported opinions titled ‘MAONI YA WAZEE’ was written after the respondent had filed his appeal before the appellate Tribunal. The said opinions were not composed well and show that they were given by elders of the Tribunal (wazee wa baraza) and not Members of the Ward Tribunal (wajumbe wa baraza) as stipulated under section 4 (a) of the WARD TRIBUNAL ACT. It was submitted further that the record of the trial Tribunal shows that, on 08/06/2021 the Coram of the trial Tribunal was composed of 7 members while during the hearing on 10/9/2021 the trial Tribunal was composed by 6 members. However, on the record named “MAONI YA WAZEE” the alleged opinions were given by 5 members without any explanation about the missing opinions on the record of the trial Tribunal. Also, Mr. Goodluck challenged the alleged opinions for the reason that the same did not resolve the issue of ownership of land. He implored the court to pass through the alleged opinions as it will realize that no opinion decided the rightful owner of the dispute land. That, the opinions were repeating what the parties and their witnesses adduced in their evidence which is contrary to section 4(4) of the Ward Tribunal Act (supra) which requires the opinions of majority members who were present during the hearing to decide the matter and not to summarize evidence of the parties without declaring who is the lawful owner of the land in dispute. 12 Mr. Goodluck quoted the judgment of the trial tribunal which reads: “Kutokana na ushaidi huo batili Baraza limetoa haki kwa M/kiwa.” He argued that first, it is difficult to execute this decision because it differs from the opinions referred; second, it seems the words were the views of one person and not majority members; third it is not indicated which rights were explained by the trial Tribunal. That, it is not indicated that the appellant herein won the case of the dispute land. Replying to the contention that the respondent was the one who had the duty to prove his ownership as envisaged under section 110(1) and (2) of the Evidence Act (supra); Mr. Goodluck was of the opinion that the issue was whether the trial Tribunal adhered to the proper procedures while determining the dispute. He insisted that the only remedy for failure to adhere to the proper procedures is trial de novo. In his final remarks, Mr. Goodluck concluded that all three grounds of appeal raised by the appellant lack merit which should be dismissed with costs. In his rejoinder, Mr. Kamani reiterated his submission in chief. Having keenly gone through the two lower courts’ records, grounds of appeal and the parties’ submissions, the issue for consideration is whether this appeal has merit. On the 3rd ground of appeal, the Hon. appellate Chairman was faulted for making a decision on a new ground without according the parties right to be heard on such issue. The alleged new issue is that the sale agreement 13 and the minutes of the respondent’s family meeting were not in the case file of the trial tribunal. Mr. Goodluck had a different view. He argued that, the issue of the appellant’s contract was not a new issue because while determining the 3rd ground of appeal, the Chairman realized that even the purported referred contract was not tendered before the trial tribunal. I had time to read the grounds of appeal raised by the respondent herein before the appellate Tribunal. The third ground of appeal reads: “Kwamba Baraza la Kata ya Maore lilikosea kisheria na kimantiki kwa kupokea Mkataba wa Mjibu Rufaa usiokidhi vigezo vya kisheria na haukuthibitishwa na shahidi yeyote upande wa Muuzaji kama mauziano yalikuwa sahihi.” While discussing this ground of appeal, the Hon. Chairman at page 3 of the judgment noted that the alleged sale agreement as well as the minutes of the meeting which handed over the disputed land to the respondent herein, was not in the trial Tribunal’s file. Consequently, the appellate Tribunal nullified the proceedings and set aside the judgment of the trial Tribunal. It is the observation of this court that the argument by the appellant that the Chairman raised new ground without according parties right to be heard is unfounded. The chairman discussed the 3rd ground of appeal which was raised by the respondent herein in respect of the alleged sale agreement which unfortunately was not in the trial Tribunal’s file. Therefore, the 3rd ground of appeal before this court has no merit. 14 This goes along with the 1st ground of appeal in which Mr. Kamani challenged the findings of the appellate Tribunal which held that the decision of the trial Tribunal was composed from air since the documents which were referred to by the Ward Tribunal were not present in the case file. It was his argument that the decision by the trial Tribunal does not imply that it was composed from the said documents. Mr. Goodluck conceded that the said sale agreement and the minute which were referred by the respondent were not in the court file. He averred that; the documents were relied upon by the trial Tribunal while determining the dispute. This contentious argument takes me to the trial Tribunal’s judgment and the opinion of the members. The majority opinions of the members relied upon the said documents to give their opinions. Also, the judgment of the trial Tribunal suggests that the trial Tribunal relied upon the minutes of the meeting to disqualify the respondent herein from ownership. It may be noted that, the gist of the parties’ evidence emanates from the alleged documents. That is, the appellant herein alleged that she bought the said land from one Mzee Rashid Mweta as per the sale agreement while the respondent alleged that the said land belonged to his late aunt and he was given the same as shown in the minutes of the family meeting. Based on what was stated by the witnesses, there is no way the trial Tribunal could decide the matter without the alleged documents. I tried to find the said documents from the trial Tribunal’s records in vain. Therefore, the District tribunal Chairman’s decision was justified. 15 In respect of the second ground of appeal that the appellate Tribunal erred to hold that the opinion of each member does not show who was the winner between the parties; the respondent’s advocate argued that they were supplied with the copies of the proceedings and judgment without the alleged opinions. They believed that the purported opinions were written after filing the appeal before the appellate Tribunal. I have read the opinions of the members of the trial Tribunal. As a matter of reference, I reproduce the said opinions hereunder; “Mzee No. 1: M/kaji ameshindwa kuthibitishia mahakama au baraza kwamba muhutasari alio uwakilisha kua ameupata wapi kwani baraza halikai au kutoa Mihutasari ya vikao vya ndugu. MZEE No. 2: Katika mgawanyo wa hizo mali M/kaji na mashahidi wake wanapingana katika maelezo, M/kaji anadai alipewa shamba moja lakini mashahidi wanasema M/kaji alipewa shamba zaidi ya moja. MZEE No. 03: M/kaji anasema shamba hilo amelipata mwaka 1970 wakati kwenye Muhtasari wa kikao cha ndugu kinaonyesha M/kaji alipewa Mwaka 1995. MZEE No. 4: M/kiwa alikuja na hati ya manunuzi inayo onyesha kwamba alinunua shamba hilo Mwaka 1990 kutoka kwa Rashid Mweta. 16 MZEE No. 5: M/kaji alisema Kwamba alipata hati ya umiliki wa shamba kutoka kwenye baraza la Ardhi la Kata, kitu ambacho sio kweli baraza halitoi hati ya umiliki wa shamba.” The above opinions of the members of the trial Tribunal were in favour of the appellant herein. The opinions discredited evidence of the respondent herein, thus making the appellant herein the winner. Thus, it is not true that the opinions of the members do not indicate who is the winner as correctly decided by the appellate Chairman. On the last ground of appeal, that the chairman of the appellate tribunal erred in nullifying, quashing and setting aside the decision of the Ward tribunal without justifiable reasons; I reiterate my findings on the first ground of appeal that the decision of the first appellate tribunal was justified as the documents in support of evidence of both parties are missing in the case file of the trial tribunal. That said and done, I hereby partly allow this appeal with no order as to costs. It is so ordered. Dated and delivered at Moshi this 22nd day of November 2023. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 22/11/2023 17 18