ELIZABETH SHUMBI VERSUS NEEMA KINGU Judgment

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND APPEAL NO. 28151 OF 2023 (Arising from the Decision of Misc. Land application No.60 of 2023 in the High court of Tanzania at Dodoma District registry and originated from Land No. 42 of 2019 in the District Land and Housing Tribunal of Iramba at Kiomboi before Hon. B J Shuma- Chairman) BETWEEN ELIZABETH SHUMBI.....................................................................APPLICANT VERSUS NEEMA KINGU (as administratrix of the estate of the late KINGU MGENDI) ……………………….............…….. RESPONDENT JUDGEMENT Date of last order: 09/07/2024 Date of the Judgement:13/08/2024 LONGOPA, J.: This is an appeal arising from the decision of District Land and Housing Tribunal for Iramba at Kiomboi in Land Application No. 42 of 2019. On 18th November 2020, the Tribunal entered judgment and decree in favour of the respondent herein against the appellant to be a trespasser to the estate of the late Kingu Mgendi. The appellant was aggrieved by the whole of the decision hence on 21st December 2023, 1|Page the appellant appealed against the whole of the decision on the following grounds: 1. That, the trial chairman erred in law and fact by deciding in favour of the Respondent without considering the fact that the Respondent herein failed to prove her case on balance of probabilities. 2. That, the Trial Chairman erred in law and fact by holding in favour of the Respondent basing on weak and contradictory evidence. 3. That, the whole proceedings of the trial Tribunal were marred by procedural irregularities. On 9th July 2024, the parties prayed to dispose the appeal through way of written submission and this court granted that prayer. The parties complied with the scheduling order of submission as agreed. The appellant filed her submission on 18th July 2024 and the Reply submission by the respondent was filed on 29th July 2024. The appellant submitted that the dispute before tribunal was between NEEMA KINGU as the administatrix of the estate of the late KINGU MGENDI (applicant) and appellant being (respondent) claiming the respondent has trespass the land of her father, area measured 12.5 2|Page acre. Tribunal after hearing of the application decided on favour of respondent hence this appeal. On the first ground of appeal that the trial chairman erred in law and fact by deciding in favour of the Respondent without considering the fact that the Respondent herein failed to prove her case on balance of probabilities, it was submitted that it is settled law that 'he who alleges must prove' principle which is embodied in the section 110 of the Evidence Act, CAP 6 R.E 2022. The appellant cited the case of Rock Beach Hotel Limited vs Tanzania Revenue Authority Civil Application No. 52 of CAT at Dar es salaam (unreported), where the Court of Appeal had considered and observed that provision of section 110 of the Evidence Act, Cap 6 R.E 2022 which place the burden of proof on him who alleges about existence of a particular fact. It was argued that the record of proceeding of tribunal reveals that respondent failed to prove ownership by identify location, demarcations and boundaries surrounding dispute land. Such failure to stated lucidly on the boundaries by contradictions of witnesses makes credibility of respondent rise doubt on whether land belong to her father. It is stated further that the requirement of the law under regulation 3 (2) (b) of Land Disputes Courts (The District Land Housing Tribunal) Regulations, 2003 GN. No. 174 of 2003 and decision in the case Hassan Rashidi Kingazi & another V. Halmashauri Ya Kijiji Cha Viti, Land Appeal Case No. 12 of 2021, where Court decided that 3|Page to address ownership of any land in dispute must be sufficiently described with certainty in terms of size, location and demarcation. However, the record on pages 9, 10 and 11 of proceedings reflect that respondent had never prove location of the disputed land and demarcation. As such the judgment and decree of trial tribunal is uncertain and does not describe location and boundaries or demarcation for the land. It was appellant’s prayer that due to discrepancy caused with trial tribunal, this Court was invited court to invoke section 43(1) (b) of the Land Disputes Court Act, Cap 216 R.E 2019, and quash decisions and set aside proceedings of tribunal for want for proper application of regulation 3(2)(b) of the regulations and directive of this court in the precedent of Hassan Rashidi Kingazi & another V. Halmashauri Ya Kijiji Cha Viti, Land Appeal Case No. 12 of 2021. On the second ground of appeal which state that the trial Chairman erred in law and fact by holding in favour of the Respondent basing on weak and contradictory evidence, it was stated that proceedings of the court show that evidence of PW1 and PW3 contradict each other in boundaries of the disputed land. It was reiterated that weakness of evidence of respondent can be illustrated by failure to produce list of estate of late KINGU MGENDI before the tribunal validating the said property was the part of the list of estate of late KINGU MGENDI. 4|Page The whole proceedings of the trial Tribunal were marred by procedural irregularities. The decision in the case of Mwita Chacha Nyaheri and Another Vs Col Machera Mwise Machera Land Appeal 36 of 2022) TZHC 14705 (15 November 2022), at page 9 was cited to cement the well-established rule that proof must be based on strengths of the party with duty to prove and not on weaknesses of the opponent’s case. The appellant denies that she is the aggressor and that she never invaded the piece of land as that land belongs to her thus the appellant was under no obligation to prove her story. Indeed, it was argued that the tribunal erroneous shifted the burden of proof from the respondent to the appellant. That is unacceptable in law. The situation reminds, though in a criminal matter, what the late Lugakingira J. borrow leaf from, in Mathias Timothy v. R. [1984] TLR 86 HC where it was observed that :(1)In testimony of a witness, where the issue is one of false evidence, the falsehood has to be considered in weighing the evidence as a whole; and where the falsehood is glaring and fundamental its effect is utterly to destroy confidence in the witness altogether, unless there is other independent evidence to corroborate the witness. On the issue of procedural irregularities, it was submitted that assessors are crucial part of the constitution of the Tribunal and they must opine in presence of the parties. However, in the instant appeal assessors did opine in absence of the appellant herein thus contravening the law namely section 23(1)(2) of the Land Disputes Courts Act, Cap. 5|Page 216 R.E 2019; and Regulation 19(2) of the Land Disputes Courts (District Land and Housing Tribunal) Regulations, G.N No. 174 of 2003 requiring the opinion of assessors to be reduced into writing and be read out to the parties before the chairman pronounces the decision. It was argued that opinion of the assessors were not tendered and admitted by tribunal to form part of record, in the case of ISHFAQUE SHABIR YUSUFALI VS. SALIM LAKHANI & OTHERS, CIVIL APPLICATION NO. 521/01 OF 2022)[2023] TZCA 17786 (31 October 2023) (TANZLII), where the Court of Appeal held that: “on this, we are at one with Dr. Rwegasira and precisely aligning ourselves with the position in the case of Japan International Cooperation Agency (Jica) and Total Tanzania Limited in which, we emphasized that, the document/s not admitted in the evidence cannot form part of the record although found included on record. In the present annexture P4 was never admitted in evidence it could not have been relied on ether by trial court or the court on appeal.” It was concluded that since the document yielding assessors opinion were not admitted, the same should not have been made as part of record. In this regard tribunal never complied with the requirement of law thus it was the prayer of the appellant that this appeal be allowed with costs. On the other hand, the Respondent submitted that the first ground is devoid of merits. It was argued that for purposes of clarity it is a trite 6|Page law that in civil proceeding the standard of proof is on balance of probabilities and the burden of proof lies on the party who alleges as per decision in Antony M. Masanga vs Penina (mama Mgesi) and Another, civil appeal No. 118 of 2014[2015] TZCA 556 (TANZLII) at pages 9 and 10 of the decision. To prove the case at the trial tribunal, three witnesses testfied to the effect that the disputed land belonged to the late Kingu Mgendi. PW2 one Seleman Sabo Malugu and PW3 one Philemon Kingu further testified that the late Kingu Mgendi is the one who cleared the land and he used the disputed land for cultivation whilst the evidence of the Appellant contradicts that of her witness one Saanane Mpanda Kizali who testified as DW2. It was argued further that evidence of the appellant was that she inherited the land from her mother. However, appellant’s mother never appeared before the Tribunal to testify despite being alive. Such testimony conversely departed from that of DW2 who testified to the effect that the disputed land belonged to the father of the Appellant thus she inherited upon his demise and further that the appellant. DW 3 stated that the appellant herein got the land from her mother but DW 3 was not present when the land was given to the appellant herein. Therefore, the evidence of the appellant at the trial Tribunal is contradictory. It is not certain whether the appellant got the land through inheritance upon demise of her father or gift inter vivos from her mother who is still alive. Such disparities made the evidence so 7|Page weak hence the Tribunal rightly decided in favour of the Respondent herein basing of the cogent and strong evidence adduced. With regard to the call by the Appellant for this Court to invoke the provisions of section 43(1) (b) of the Land Disputes Courts Act, Cap 216 RE 2019 the same is misconceived and the cited case of Hassan Rashidi Kingazi and Another vs Serikali ya Kijiji cha Viti, Land Case Appeal No. 12 of 2021 is not applicable under this regard. Turning on second ground, it was submitted that respondent properly identified the disputed land and adduced the evidence as to the ownership of the disputed land while the evidence of PW3 as to the boundaries is a mere overlook. With regard to production of list of estate at the trial the averment is lacks legal justification and further that there is no reason to fault the opinion of the assessors. With regard to the third ground of appeal on procedural irregularities, it was correctly argued by counsel for the Appellant, the provisions of section 23 (2) of Cap 216 read together with regulation 19(2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 dictates the assessors to give their opinion before the chairman make the judgment (see also the case of Sikuzan Saidi Magambo and Another vs Mohamed Roble, Civil Appeal No. 197 of 2018[2019] TZCA 3 22 (TANZLII), at page 10. 8|Page On the 7th day of October 2020 when the opinions of assessors were read, the respondent appeared whilst on the party of the appellant one Stephano Charles appeared and informed the tribunal of the appellant illness and the tribunal proceeded with the reading of the opinion. However, the omission did not occasion any injustice to the appellant to warrant this Court to nullify the proceedings of the trial tribunal rather this Court to apply the overriding objective principle and salvage the trial tribunal proceedings because the appellant was made aware of the nature of the opinion of the assessors by her son who attended on the particular date. On the invocation of overriding objective principle, he invites the court to refer the case of Yakobo Magoiga Gichere vs Peninah Yusuph, civil appeal No. 55 of 2017 [2018] TZCA 222 (TANZLII) and call upon this court to apply the same in this case and make the findings confirming the trial tribunal decision. The respondent humbly prayed that this honourable court should be pleased to dismiss the appeal with costs so that the respondent can continue to enjoy the fruits of the decree of the trial tribunal. It is on conclusion of the both parties’ submissions that this Court is enjoined to determine whether this appeal has merits. I have thoroughly reviewed the available records both proceedings and the judgment of the District Land and Housing Tribunal for Iramba at Kiomboi to determine the issues before me. 9|Page The first and second grounds relating to the proof of the case and the contradictory nature of the evidence on record can be addressed jointly as they relate to the evidence. In course of addressing the standard and burden of proof, it is pertinently that re-evaluation of evidence is done thus the question of whether or not evidence of the respondent was contradictory to weaken the case of the respondent is articulated. It is trite law that in civil cases, it is the burden of the person who alleges existence of the fact and wishes the court to believe the same to adduce evidence to prove existence of such fact for the Court to decide in his favour. This was reiterated in the case of Amos Njile Lili vs Nyanza Cooperative Union (1994) Ltd & Others (Civil Appeal No. 126 of 2020) [2024] TZCA 13 (31 January 2024), pages 15-16, where the Court observed that: In our determination of the complaints before as, we shall be guided by the following principles of law. One, is that in civil cases, the burden of proof lies on the person who alleges anything in his favour founded on section 110 of the Evidence Act. Two, is that the burden of proof envisaged above is on the balance of probabilities as stated in various decisions of this Court, including Anthony Masanga v. Penina Mama Mgesi and Another, Civil Appeal No. 118 of 2014 and Hamza 10 | P a g e Byarumshengo v. Fulgencia Manya and 4 Others, Civil Appeal No. 38 of 2017 (both unreported). The evidence on records reveals that the respondent had three witness to prove that the owner of land was late Kingu. In totality of the respondent evidence there were several aspects that shows that respondent proved her case before the District Land and Housing Tribunal. The piece of land has 12.5 acres, PW1 stated inter alia that the land has 12.5 acres and the land belonged to her father. PW2 stated that he knows the late Kingu Mgendi and he was the one owns the disputed land which has about 12 acres. It is late Kingu Mgendi who cleared the virgin forest land to cultivate and PW3 stated that the land belonged to Kingu Mgendi and the land is about 12.4 acres, near his land. Also, PW 3 confirmed that late Kingu Mgendi is cleared the virgin land. The brother of PW 3 participated in clearing the land belonging to the late Kingu Mgendi. Totality of this respondent’s evidence shows no contractions at all as all the witnesses proved that late Kingu Mgendi was the one who owned the land. As the proof of the civil case is on balance of probabilities, the evidence of appellant on this case was contradictory as DW1 stated that the land is hers as she was given by her mother. It was her further evidence that appellant’s mother was given that land by appellant’s grandmother, that she used the land for 30 years and later she built on the suit land and lived there for 8 years. DW2 stated that the land belonged to the appellant’s father and after he demised it was 11 | P a g e at that juncture where the appellant continued to cultivate. Further, DW3 stated that he knows appellant uses the land and left the land for her son who built the permanent house about four years ago. Totality of the appellant’s evidence herein does not tally. Given that the respondent’s evidence as applicant in the Tribunal was consistent and pointing to the same direction that land in question belonged to the late Kingu Mgendi, the respondent’s father. Therefore, the whole of the evidence shows that the evidence of the respondent herein was the one watertight before the District Land and Housing Tribunal to led the judgment to her favour. The Tribunal correctly arrived at the decision fully informed on the available and strength of evidence on record. This is in accordance with the principle in the case of Hemedi Saidi v. Mohamed Mbilu [1986] TZHC 15 (5 July 1986) (TANZLII) where the High Court (Sisya, J.) observed that a party whose evidence is weightier than the other party, that party is entitled to the decision of the Court. The Court observed that: According to law the person whose evidence is heavier than that of the other is the one who must win. In this instance each party called two witnesses in addition to himself at the hearing of the case in the Court of first instance. In measuring the weight of evidence in such cases as the present 12 | P a g e one it is not, however, the number of witnesses whom a party calls on his side which matters. It is the quality of the said evidence. In this connection the evidence of a single witness may be a lot heavier than that of ten witnesses. It is to this issue of the weight of the evidence in this case that I now turn. Having exercised powers of the first appellate court to re-evaluate the evidence on record, it is to the satisfaction of this Court that evidence of the respondent was weightier than that of the appellant herein. Thus, the trial Tribunal was correct to find out in favour of the respondent. On the issue of procedural irregularities, advocate of appellant argued that the tribunal Chairman did not consider the opinion of the assessors. There are two main aspects relating to this ground. First, the assessors’ opinion was not on record. Second, that the opinion was not read in presence of the parties. Hearing of the land disputes at the District Land and Housing Tribunal is governed by section 23(1) and (2) of the Land Disputes Courts Act, Cap. 216 R. E 2019. It states that: (1) The District Land and Housing Tribunal established under section 22 shall be composed of one Chairman and not less than two assessors. 13 | P a g e (2) The District Land and Housing Tribunal shall be duty constituted when held by a Chairman and two assessors who shall be required to give out their opinion before the Chairman reaches judgment It is mandatory for the assessors to sit throughout the proceedings of a particular case and at the end before judgment they are required to give their opinion on the possible outcome about the case, even though the tribunal Chairman can departure from the opinions of the assessors while stating clear reasons. Further, Regulation 19 (2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 GN No. 173 of 2001 is illustratively on the role of the assessors. It provides that: Notwithstanding sub-regulation (1) the Chairman shall, before making his judgment, require every assessor present at the conclusion of hearing to give his opinion in writing and the assessor may give his opinion in Kiswahili. The proceedings of the District Land and Housing Tribunal for Iramba shows that assessors participated on the hearing of the case and on 7th day of October 2020, the assessors’ opinions were read in the presence of applicant while respondent was absent. This is reflected at 14 | P a g e pages 27 and 28 of the proceedings of the District Land and Housing Tribunal for Iramba at Kiomboi. In the case of Elibariki Malley vs Salimu H. Karata (Civil Appeal 67 of 2022) [2023] TZCA 226 (3 May 2023) (TANZLII), at page 10, the Court of Appeal inter alia stated that: It is noteworthy, to state that in dealing with disputes at the DL & HT the Chairman has to read in tandem the LDCA and the Regulations. Based on the provision of section 23(2) of the LDCA and regulation 19 (2) of the Regulations, the Chairman who sits with assessors, is undoubtedly required to comply conjunctively with four conditions: (i) that the assessors actively participate, (ii) that at the end of the hearing, each of the assessors files a written opinion, (iii) that the written opinion filed must be read over to parties before the Judgment is composed and (iv) that those written opinions must be part of the record. As the opinion must be read over to the parties before the judgment is composed means it was obliged or should be read to both parties, it should not be overlooked because such opinion gives parties the chance to know the nature of the opinion and later in judgment to know if such opinion was considered or not by the Chairman in the final verdict. Therefore, tribunal Chairman is supposed to read the opinion of 15 | P a g e the assessors in the presence of both parties. As the provision of the law uses the word “shall” it means failure to read the opinion before both parties is fatal. The main question at this juncture is whether there was compliance with the set-out procedure in reading the opinion of the assessors. To answer that aspect, two dates incidents are vital. First, the proceedings on the date preceding the opinion of the assessors. Second, the date when the opinion was read. It is in settled view of this court that in order to read the opinion of the assessors in presence of the parties commences with informing them to appear and attend on the date set for reading of assessors’ opinion. Reading the assessors opinion in my humble view means that parties should have prior information that a particular date is set for reading of the assessors’ opinion and parties are obliged to attend. In case a party fails to attend on that material date such person cannot lament that assessors’ opinion was read in his absence. On 16th September 2020 while both appellant and respondent were in attendance before the Tribunal upon conclusion of the hearing of defence case, the District Land and Housing Tribunal for Iramba made an explicit order that assessor’s opinion shall be read on 7th October 2020 and the Judgment was scheduled for 4th November 2020. On 7th October 2020, the appellant was not in Court as one Stephano Charles appeared and reported that appellant was sick. It is 16 | P a g e on this day that opinions of the assessors were read as scheduled. Having been fully informed on the date set for the reading of the opinion of assessors, the Tribunal acted properly and in accordance with the law to proceed with reading of the assessors’ opinion. Nothing prejudiced the interests of the appellant. Two reasons have influenced this stand. First, the parties were well informed prior hand that assessors’ opinions would be read on that particular date i.e. 7th October 2020. Thus, it was duty of the parties to appear without fail on that material date. Second, despite the report of appellant’s herein illness nothing was produced/ tendered before the Tribunal to substantiate that the appellant was prevented by a justifiable reason not to appear. It will be countenancing injustice to quash the proceedings of the Tribunal dated 7th October 2020 on account of absence of the appellant herein (then respondent) during the reading of the assessors’ opinion given that parties were well informed beforehand and the appellant did not justify his absence. The provisions of Article 107A (2) (e) of the Constitution of the United Republic of Tanzania enjoins this Court to ensure that it determines the matter with due regard to substantive justice and not being tied by technicalities. Being guided by that principle, it is settled view of this case that in presence of the parties used in the Land Disputes Courts Act and its Regulations with regard to reading of opinion of the assessors means that parties must be informed prior hand on the specific date that such opinion would be read out and that parties are bound to appear. If the party fails to appear with justifiable and reasonable cause, such absence with full information on the date cannot 17 | P a g e prevent the Tribunal to proceed with reading of the opinion of the assessors. Thus, the argument that only respondent herein was there when the opinion of the assessors was read out thus contravened the law lacks cogent merits and must therefore fail. The second limb on the opinion of the assessors is couched on the alleged failed to tender and admit the same before the reading for the opinions to be valid forming part of the record of the court. This is a misconception. My understanding of the law is that opinion must be in writing. It must be filed in Court prior to the time of reading of the opinion and that each of the assessor should state in court what is his views on the matter in particular who between parties deserves the decision of the Tribunal in accordance with the views of that particular assessor. I am not concurring with the appellant’s view that the assessor’s opinion must adhere to the admissibility of the documentary evidence. That argument is far fetched and unsupported by any law. Assessors’ opinion is not evidence thus it does not require compliance with procedure of tendering and admission of the documentary evidence. Indeed, it is within the principle in Edina Adam Kibona vs Absolom Swebe (sheli) (Civil Appeal No. 286 of 2017) [2018] TZCA 310 (12 December 2018) (TANZLII), at page 5, the Court of Appeal of Tanzania lucidly stated that: 18 | P a g e We wish to recap at this stage that in trials before the District Land and Housing Tribunal, as a matter of law, assessors must fully participate and at the conclusion of evidence, in terms of Regulation 19 (2) of the Regulations, the Chairman of the District Land and Housing Tribunal must require everyone of them to give his opinion in writing. It may be in Kiswahili. That opinion must be in the record and must be read to the parties before the judgment is composed. It is on record that both assessors did give their opinion in writing and in Kiswahili. My perusal of the Court record reveals that Agnes K. Mbazi on 5th October 2020 opined in writing to the effect that:“ Nimeona maelezo ya Mleta Maombi pamoja na Ushahidi wake una mashiko kwa hiyo Mleta Maombi ana haki ya kumiliki eneo hilo.” Also, one Omary Hassan Rukumbwe opined in the following words: “Nimeona mashahidi waliokuja kumtolea Ushahidi Mjibu Maombi walikuwa mashahidi wa kupangwa. Kwa hiyo naungana na Mleta Maombi kuwa eneo hilo linalogombaniwa ni lake.” The respective opinion of the assessors are in record of the court. It also on record that on 7th October 2020, the opinion of the assessors was read before the Tribunal in presence of the parties on the date dully communicated to the parties prior to the date of reading the opinion. As such any lamentation that the assessor’s opinions were not 19 | P a g e on record is not merited. It is an afterthought that should not be entertained. At this juncture, I am indeed satisfied that the appeal is devoid of merits as the trial Tribunal correctly and in accordance with the law to enter judgment and decree in favour of the respondent herein as the case was proved to the required standard. In totality of the appeal, the appeal is hereby dismissed for lack of merits. As such, decision of the District Land and Housing Tribunal for Iramba at Kiomboi was proper and in accordance with the law that on available evidence on record the respondent herein deserves to be awarded the judgment and decree of the Court. The respondent shall be entitled to the costs of the appeal. It is so ordered. DATED at DODOMA on this 13th day of August 2024. E.E. LONGOPA JUDGE 13/08/2024. 20 | P a g e