emmanuel assenga vs mahamoud mringo 2021 tzhclandd 712 19 february 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND APPEAL NO. 152 OF 2018 EMMANUEL ASSENGA................................................... APPELLANT

VERSUS MAHAMOUD MRINGO................................................ RESPONDENT Date of Last: 30/10/2020 Date ofJudgment: 19/2/2021

JUDGMENT MANGO, J. Dissatisfied by the decision of the District Land and Housing Tribunal for Kinondoni, in Land Appeal No. 137 of 2017 the Appellant, Emmanuel Asenga preferred this appeal on the following grounds:- 1. That the learned chairperson erred grossly in law and fact for failing to take cognizance and diligent care that the proceedings in this dispute were required to be based on principles of law respecting jurisdiction and based on estimated value and size of land; 2. That the chairperson erred in law and fact for taking sides by plunging her authority into a premeditated undertaking of a group which initiated some collusion proceedings aimed i against the appellant whereas the whole group was aware and with conscience that the act was immoral; 3. That the learned chairperson misdirected her authority in law and fact for acting on hearsay in the case which was unlawful manufactured and which lacked evidence and witnesses; 4. That the district Land and Housing Tribunal acted unlawfully for assuming power of the Ministry of Land which were beyond their authority by maintaining that the land in dispute which belonged to the Appellant was an open space whereas it was unsurveyed and the same was allocated to the Respondent by the Kimara Ward Tribunal without Authority to allocate land; 5. That the learned chairperson acted unlawfully for aiding the respondent by

violating her own rules which had been set up as orders during the proceedings and denied the appellant the opportunity to file a rejoinder in the case being appealed from which act offended the law of natural justice generally. The Appellant had legal assistance from the Tanganyika Law Society while the respondent had legal services of Mr. Augustine Kusalika, learned advocate. The appeal was argued by way of written submissions. Appellant’s submission was drawn by Mr. Edson Kilatu, learned advocate. In his submission, Mr. Kilatu submitted collectively on the first, second and third ground of Appeal. He submitted that the District Land and Housing 2 Tribunal erred in law and fact by upholding erroneous decision of the Ward Tribunal declaring the respondent the lawful owner of the suit land while the respondent had no sale agreement in respect of the suit land, the failed to describe the size of the land and he had no locus standi on an open space He argued that, the respondent failed to prove ownership over the suit land. According to the learned counsel, the respondent tendered Offer of Right of Occupancy and Ombi la kibali cha kugawa Mashamba Na 3766 na 3767 Plan E 334/119 Kimara Mavurunza as proof of his ownership over the suit land. He argued that, the respondent did not produce any certificate of title or the sale agreement to prove his ownership over the suit land. Thus,

the Ward Tribunal assessors erred in contemplating that the Respondent produced title deed while he never tendered the same before the Trial Tribunal He argued further that, after the alleged survey, the area of the land which is adjacent to the river was left as an open space. The land in dispute is located in the area considered to be an open space. Therefore the respondent had no locus to institute a case for trespass to an open space. The learned counsel submitted also on the weight of documentary evidence tendered by the parties. In this he argued that, the map of farm No. 3766 which was tendered by the respondent does not establish the respondent’s ownership over the suit land. On the other hand, the appellant sale agreement establishes the Appellant’s ownership over the suit land. He is of the view that the arespondent failed to produce 3 documentary evidence regarding his alleged ownership over the suit land as he does not have title over the same. In his reply submission Mr. Kusalika submitted that, the appeal is devoid of merits and the grounds of appeal are unfound because the appellant failed to establish ownership over the suit land. The learned counsel raised a preliminary oojection that the appeal is time barred as it was instituted after the expiry of 45 days from the date the judgment of the appellate tribunal was delivered. He argued tnat the judgment was

delivered on 28th September 2018 and the Appeal was filed on 17th December 2018 which is more than 15 days from the date the appellate tribunal delivered its judgment. Submitting on the three consolidated grounds of appeal, the learned counsel argued that, tne appellant proved to be the owner of the suit land. According to him, evidence adduced by the respondent before the trial tribunal establishes that he owned farm No. 3766 and 3767 which extended up to the river bank. And that during survey, the suit land was left as an open space thus, the appellant is not entitled to enjoy the said open space. He argued further that, the appellant did not establish how, Thidoma Fabian acquired ownership over the suit land before selling the land to the respondent. According to him, the appellant s failure to prove Ins vendor s title over the suit land makes the sale agreement illegal as he who does not have title cannot pass title to another. To cement his arguments he cited the case of Farah Mohamed versus Fatma Abdallah (1999) TLR 205. 4 On the issue of locus standi, the learned counsel conceded that the area is an open space and argued that the appellant has no locus standi to claim ownership over an open space. He argued further that an open space cannot be allocated to any person thus, the appellant is barred from enjoying the same as his property taking into account that the suit

land was part of the respondent’s farm before the survey. He submitted further that, the appellant invaded the suit land alleging to have purchased the land from Thidonia Fabian. He is of the view that the appellant had nothing to purchase from Thidonia Fabian because the suit land not habitable. He insisted that the suit land belongs to the respondent but it was not included in the title deed when the area was surveyed because the same was left as an open space. In his rejoinder, the appellant counsel reiterated his submission in chief regarding proof of ownership. He argued further that a mere assertion that the respondent owned the said open space before survey does not prove the alleged ownership over the suit land. He highlighted that the burden of proof does not shift from the claimant. On the issue of the appeal being time barred, the learned counsel argued that, this appeal originate from the Ward Tribunal thus, section 41(2) does not apply. He also indicated that the appellant obtained copies of the judgement of the appellate tribunal on 6th November 2018 and the appeal was lodged on 17th December 2018. From that background facts he argued that the appeal is within time as section 19(3) of the Law of Limitations Act [Cap. 89 R.E 2019] excludes from calculating time limits for appeals, the 5 requisite period that the appellant had to spent waiting for copies of judgment

and decree. I have considered submissions by both parties and court record. I will start with the objection raised by the counsel for the respondent that the appeal is time barred. The matter at hand originates from the Ward Tribunal where it was adjudicated as Land Application No. 59 of 2016, Kimara Ward Tribunal. It was entertained by the District Land and Housing Tribunal as an appeal registered as Land Appeal No. 137 of 2017. Appeals from the decision of the District Land and Housing Tribunal when exercising their appellate jurisdiction are governed by section 38 of the Land Disputes Courts Act [Cap.216 R.E 2019] which provides that, such appeals can be lodged within 60 days from the date the judgement was delivered. In the case at hand, the decision of the appellate tribunal was delivered on 28th September 2018 and the copies of judgement was certified by the chairman of the Tribunal on 6th November 2018. This appeal was lodged on 17th December 2018 which is only 41 days from when the appellant received copies of judgement subject of this appeal. Taking into account provisions of section 19(3) of the Law of Limitations Act, [Cap 89 R.E 2019] this appeal was filed within time. For that reason the objection is overruled. With regard to the appeal, it is clear from the submission of the respondent that, the suit land is an open space. It should be noted that the

respondent was the one who instituted Land Application No. 59 of 2016 before Kimara Ward Tribunal claiming ownership over the suit land. It is trite law that he who allege must prove. The respondent who alleged that the appellant trespassed into his land ought to have proved ownership over the suit land. 6 The respondent failed to prove ownership over the suit land and he expressly testified before the tribunal that he had the plot surveyed and during the survey the suit land was left as an open space. Ownership of surveyed land is proved by production of a title deed indicating such ownership. As correctly argued by the counsel for the appellant a sketch map does not prove ownership of the suit land. In addition to the sketch map of the area considered to be farm No. 3766 the respondent produced a letter of offer No. 00003606 with Reference No. KMC/LD/43207/3/CBM which was issued on 3rd March 2004 by Kinondoni Municipal council infavour of the respondent. The letter of offer contains a precondition regarding its life span. Item 5 of the terms and conditions of the rights contained in the letter of offer provides; "This offer shall lapse unless payments are made and receipts are returned to me within thirty (30) days from the date of its acceptance by you. ” According to the letter of offer that was tendered by the respondent, the respondent accepted the terms and conditions of

the offer on 3rd July 2004 by appending his name and signature in the letter of offer. Land Application No. 59 of 2016 before Kimara Ward Tribunal was filed on 29th October 2016 almost eight years from when the respondent accepted the offer. In his testimony, the respondent did not produce any title deed no did he prove to have complied with the conditions set in the letter of offer. In such circumstances the letter of offer cannot be considered to be reliable evidence to prove the respondent’s proof over the suit land because the conditions contained therein shows that the letter of offer lapsed 30 days from 3rd July 2004. 7 For an action for trespass, proof of ownership is essential. In the case at hand the respondent who was the applicant before the trial tribunal failed to prove ownership over the suit land and he expressly testified that the land in dispute is an open space. Thus, the respondent cannot claim the appellant has trespassed into the land which does not belong to him. Despite the respondents failure to prove ownership over the suit land, th»s court cannot declare the appellant to be the owner of the suit land because there is no evidence that proves the extent of the survey allegedly to have been conducted over the disputed land. The status of the suit land can only be ascertained by the relevant authorities. Unfortunately, such evidence is not available in the case at hand. For that reason the appeal is partly allowed. The decision of the appellate Tribunal and the trial tribunal are hereby set aside. No order as to costs because the appeal was filed and heard in forma pauperis. 8