Evarister Beebwa vs Kibwete and Othres

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB - REGISTRY AT BUKOBA MISC. LAND APPEAL NO. 27 OF 2023 (Arising from Land Appeal No. 48 of2020 of the District Land and Housing Tribunal forKaragwe; Originating from Land Case No. 03 of 2018 ofKamuii Ward Tribunal) EVARISTER BEEBWA.............. ..................... . APPELLANT VERSUS WILBARD KIBWETE...................................... 1 st RESPONDENT 2 DOLICIA RUCAS........... ........................ ......................... nd RESPONDENT BULANDINA KASENENE................... .............................. 3R0 RESPONDENT MECKTILDA MAGAYANE.......................... . 4 th RESPONDENT 5 LETICIA LEVELIAN................ ................ ............... ....... th RESPONDENT PASTORY BURCHARD.................. ................... 6™ RESPONDENT M/KITI KIJIJI CHAKALISA.............. ............................. 7™ RESPONDENT JUDGMENT 10th & 31st July, 2024 BANZI, J.: This appeal has a checkered history, it traces its root way back in 1994 when the refugees from Rwanda were repatriated back to their country. Among them was Deogratius Ngoga who was the village chairman of Kimuli village and left behind a piece of land measuring approximately ten acres which is the subject matter of this appeal (the suit land). According to the record, when the refugees were returned to their country of origin, the then District Commissioner for Karagwe District ordered land that was occupied by the refugees to be allocated to the indigenous. Page 1 of 21 The appellant a government employee by then, was among other people who applied to be allocated the land left behind by those refugees. According to him, on 09/05/1994 he made his application which was confirmed on 12/06/1994 and on 25/06/1994, he paid Tshs.4,000/- as fees for allocation of the requested land. Thereafter, he was allocated the suit land which was previously occupied by one Deogratias Ngoga. The allocation was done under the supervision of the acting village chairman, Pastory Burchard (the sixth respondent) who was the village chairman and the then Village Executive Officer, Arbogast Kasole (SM2). Thereafter, the appellant handed over the suit land to Amza Tinuga for protection and maintenance. However, he did not peacefully enjoy the suit land as some people including the first respondent started to encroach it. He reported them to the authority and despite being prohibited; the encroachment never stopped. As a result, he decided to file the case to the trial tribunal against the encroachers but unfortunately, in 2013 he was charged with criminal offence and was sent to prison until he was released by this Court in 2018. After being released, apart from those whom he was fighting against, he found even other people had encroached, including the first to fifth respondents. Amicable reconciliation proved futile; hence, he filed a case before Kimuli ward tribunal (the trial tribunal) claiming for his land. To prove his claims, he Page 2 of 21 tendered various documents including the letter requesting for the land, receipt issued by the village council for payment of the land, the minutes of the village council dated 11/06/1994, the judgment of Bugene primary court in which the first respondent was convicted and sentenced in absentia for contempt of the court. On the other hand, it is also on record that, the same suit land about eight acres was allocated to Nikolaus Rubambula by village council in 1996 and he paid allocation fee of Tshs. 10,000/=. In the same year, he sold it to the first respondent for consideration of Tshs. 150,000/= in the presence of neighbours to that land. Since then, the first respondent started using it by planting seasonal crops, then eucalyptus trees and bananas trees. Sometimes later, he faced some financial difficulties and decided to sell four acres to other people. He tendered the receipt of Nikolaus Rubambula and the sale agreement which however, shows it was signed by the VEO-Kamuli only, neither of the parties to the agreement signed it. The third respondent, Bulandina Kasenene claimed that, she bought the said land from John Paulo for Tshs.500,000/= on 10/02/2015 in the presence of hamlet chairmen, Frans Dionizi and Laurent Mikotani. According to her, the said land was originally owned by the first respondent who sold Page 3 of 21 it to Julius Kagema before the same was acquired by vendor, John Paulo. She tendered the sale agreement between her and John Paulo dated 10/02/2015 which was accompanied with the sale agreement between Julius Kagema and John Paulo. On his side, the fourth respondent, Mecktilda Magayane, contended that, she bought the suit land from Nicolaus Kodemu in 2016 and has been using it for agricultural activities. As far as the fifth respondent, Leticia Levelian is concerned, she denied to have encroached the suit land contending that, she bought her land from Joji John for Tshs.1,000,000/= which she paid in two instalments of Tshs,800,000/- on 23/06/2015 and Tshs.200,000/= on 20/02/2016. She went on stating that, after having purchased the said land, the land was partitioned into two halves in which the half of it was taken by Dolicas Rucas, the second respondent and each one started to develop it by planting various crops like bananas trees, coffee trees, yams and tomatoes. However, later in 2018 she was summoned to the office of the Ward Executive Officer and later before the trial tribunal alleged to have encroached the appellants land. To prove her case, she tendered the copy of the sale agreement of 23/06/2015. She also tendered the sale agreement between Respickius Dominick and JOji John. Page 4 of 21 On his part, the sixth respondent was joined in this case because by the time the appellant was allocated the land, he was one of the members of the village council who are alleged to have approved the allocation of land to the appellant. Nevertheless, his defence, he contended that, the appellant was never allocated the suit land by the village council. It was also in his testimony that, after repatriation of the Rwandese, and due to famine, the district agricultural officer ordered the village authorities to allocate the land to the indigenous to plant sessional crops to fight against famine. Being one of the members of the village council, he participated in allocation of the said land: to the people. Thereafter, the appellant complained before the ward tribunal that they had encroached his land. However^ as the land was used for cultivation, the villagers were allowed to continue with agricultural activities. Regina Mbogo, who was the village chairman by the time the dispute was at the trial tribunal, appeared for the seventh respondent. She stated that, the suit land was owned by a Rwandese one Deogratias Ngoga. When they were repatriated, the said Ngoga, left that land in the hands of the sixth respondent who by then, was the village chairman. Later, the land was reverted to be the village land except a portion of it that was given to Nicolaus Rubambula. Page 5 of 21 After receiving the evidence from both sides, the trial tribunal declared the appellant as the rightful owner of the suit land. Aggrieved by the decision, the respondents successfully appealed to District Land and Housing Tribunal for Karagwe (the DLHT). In its findings; the DLHT found that, the appellant had failed to prove ownership of the suit land to the required standard, hence, the decision of the trial tribunal was set aside and the first to fifth respondents were declared as lawful owners of the suit land. Disgruntled with the findings of the DLHT, the appellant lodged this appeal which contains the following grounds: 1. THAT, the district land and housing tribunal's assessors were not properly involved as their opinion are not reflected on the record of the first appellate tribunal. 2. THA T, the members of the ward tribunal did not disclose their gender, hence not easily to assess whether the law was complied with of one the members to be a female. 3. THAT, the first appellatecourt erred in law when it failed to confirm the validity of allocation of land made by the Village Council ofKamuli Village since 1st January, 1978 to 1st May, 2001 as provided under section 16 of the Village Land Act, Cap. 114 R.E 2002 regardless of whether it complied with the law or not. 4, THAT, the first appellate tribunal did not perform its duty ofre-hearing, re-assessing and re-evaluation of the Page 6 of 21 trial tribunal by relying only on the issue of whether the appellant has proved his claim. 5. THAT, the judgment was delivered against the weight of evidence as the appellant's evidence was heavier than those of the respondents. At the hearing, the appellant appeared in. person, unrepresented. Also, the first, third to sixth respondents were unrepresented whereas, the seventh respondent was represented by Messrs. Lameck Buntuntu, learned Senior State Attorney and Eliah Shedehwa, learned State Attorney. On the other hand, the appeal was heard exparte against the second respondent, Dolicia Rucas, who had never appeared since the inception of this appeal. Besides, she was duly served through substituted service by publication in Mwananchi Newspaper dated 16th March, 2024 but she did not enter appearance on the hearing date. In his submission, concerning the first ground, the appellant contended that, the assessors were not involved as their opinion was not properly recorded. In respect of the second ground, he argued that, the gender of members before the ward tribunal was not disclosed, hence, it is difficult to know whether the law was complied. Regarding the third ground, he faulted the findings of the DLHT for failure to confirm the validity of his allocation of Page 7 of 21 the land made by the village council considering that, between 1st January, 1978 and 1st May, 2001, allocation of land was validated by village councils and not village general assembly. Clarifying on the issue of lack of signature of members in the minutes which authorised the allocation, he stated that, prior to amendment of Local Government (District Authorities) Act in 2000, there was no requirement of members of the meeting to sign on attendance. In his view, by that time, the law required the members to list their names and the minutes was signed by the chairman and secretary. Concerning typing of the minutes instead of being handwritten, he stated that, when the refugees started to enter in Karagwe, the whole district was supplied with typewriters, thus it was normal for the minutes of the village to be typed by typewriter. Returning to the fourth ground, the appellant argued that, the DLHT failed to perform its duty of re-hearing and re-assessing the evidence but instead, it relied on section 110 of the Evidence Act which is not applicable on appeals originating from ward tribunals. According to him, he was prejudiced, because he would have won if the chairman would not have used that section to determine the weight of evidence. Concluding with the fifth ground, the appellant insisted that, the DLHT relied on the evidence of one side and failed to consider his evidence and exhibits. With such anomalies, Page 8 of 21 he prayed for the appeal to be allowed by quashing the decision of the DLHT. He also prayed for the costs. In his reply, Mr. Buntuntu opposed the appeal contending that, the appeal has no merit because the findings of the DLHT was reached in accordance with the requirement of the law. He argued that, the complaint concerning the opinions of assessors is unfounded because the same is reflected at page 20 of the proceedings and page 7 of the judgment. Concerning the second ground on the coram of the trial tribunal, he Submitted that, apart from the fact that there is no law that requires to disclose the gender of the members of the tribunal, the law was complied with because one of the members was a female person. Submitting on the third ground, the learned counsel argued that, the Local Government (District Authorities) Act, 1982, is still in use despite minor amendments. However, in such amendments, the law has never repealed the requirement of the members of the meeting to sign the minutes. According to him, as the minutes of the meeting was not signed by the members, its validity is questionable. Apart from that, even the sixth respondent who was also the member of the village council failed to verify the said minutes. Besides, its chain of custody was not established as the Page 9 of 21 appellant failed to prove where he got the minutes in question. In that respect, it shows that, the appellant was never allocated the land as he failed to establish the validity of the exhibit. Furthermore/ he argued that, by that time there was no typewriter in any village within Karagwe District/ thus, there is a high possibility that the said document was fabricated because the appellant was the Ward Executive Officer where Kimuli village is located. In respect to the fourth ground, Mr. Buntuntu argued that, even though the appellant's submission did not support this ground, the DLHT was proper to use the Evidence Act in disputes originated from the ward tribunals, because section 110 is used by any court including the DLHT in order to ascertain whether the claim exists. Reverting to the fifth ground, it was his submission that, the DLHT performed its duty properly by weighing the evidence of both sides and finally found that, the exhibits had no validity and the appellant's evidence was so weak, hence the case was dismissed. Finally, he prayed for the appeal to be dismissed with costs. The first respondent in his reply contended that, the suit land was used by refugees from 1961 to 1995 and when they were repatriated, the said land was handed over to the village authority under chairmanship of the sixth respondent who, together with the village council, allocated it to the Page 10 of 21 villagers. On her part, the third respondent denied to have trespassed the appellants land contending that, she bought the said land on 10/02/2015. The fourth and fifth respondents supported the submission of Mr. Buntuntu with no more addition. On his side, the sixth respondent apart from joining hand the submission by the learned Senior State Attorney, he added that, the alleged minutes is questionable because it was not signed. He insisted that, as in 1994 he was the village chairman, his signature would be there. He further questioned the authenticity of the minutes, claiming that, Kastory Pastory, who was written as one of members, is his son and by that time, he was a student, hence, it was not possible for him to attend the said meeting because he was at school. Even the said acting chairman was not a member of their village. In his rejoinder, the appellant insisted that, the allocation of village land from 1st January, 1978 to 1st May, 2001 was valid. The exhibits tendered by him was valid because, the directives of the government required the minutes to signed by the chairman and secretary of the meeting. Concerning the allegation by Mr. Buntuntu that, the minutes was unlawfully obtained from the office, he stated that, the exhibit in question was tendered by the village executive officer, Arbogast Sylvester. According to him, the DLHT failed to consider the evidence and examine the exhibit tendered by both Page 11 of 21 parties. He insisted that John Kavanda was the member of the village council and therefore was eligible to be the chairman of the meeting in the absence of the village chairman. He further claimed that, the sixth respondent was among the persons who participated in selling his land that is why he claimed not to know the minutes in question. Having considered the submission of both parties, and the record of both tribunals, I find it prudent to start with the first and second grounds which focused on the procedural irregularity. The record of the trial tribunal reveals that, the ward tribunal was constituted by four members namely, Faustine Katabaro, Anaciet Kashendwa, Fausta Mfipa and Elias Michael. As contended by the appellant, it Is undisputed that, nothing was written beside their names to reveal their gender. However, such anomaly is not fatal to the extent of vitiating jurisdiction of the ward tribunal because it is not the requirement of the law neither under the Land Disputes Courts Act [Cap. 216 R.E. 2019] nor the Ward Tribunal Act [Cap. 206 R.E. 2002]. Besides, according to section 11 of the Land Disputes Courts Act and section 4 (1) (a) of the Ward Tribunal Act, for the ward tribunal to be properly constituted, It requires not less than four members and not more than eight members. Apart from that, according to their names, it is apparent that, among four members, one is a female. Page 12 of 21 The issue of assessors' opinion need not detain me because, as correctly submitted by learned Senior State Attorney, the record of the DLHT, reveals that, the assessors were properly involved from the beginning to the end. Apart from that, on 29th September, 2022, they gave their opinion in the presence of parties as reflected at page 19 to 20 of the typed proceedings where their opinion was duly recorded. In addition, in the original file, there is handwritten opinion of each assessor in compliance with section 23 (2) of the Land Disputes Courts Act and regulation 19 (.2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003. In that regard, there is no irregularity neither before the trail tribunal nor the DLHT. I now turn to the complaint concerning the validity of allocation of the suit land to the appellant and the first to fifth respondents. Notably, from the records of the trial tribunal, the appellant tendered the alleged minutes of the village council for Kimuli that was convened on 11/06/1994 which reveals that, it was attended by 21 members including Albogast Syliveter who was then village executive officer and the secretary of the meeting. However, the sixth respondent was reported absent on sickness issues. Due to absence of the sixth respondent, John Kavanda was appointed as the acting chairman. The said minutes show that, at the meeting, the appellant was allocated the suit land though the neighbours to that land were not mentioned. Another Page 13 of 21 document shows that, on 12/06/1994, he was summoned by the Village Executive Officer to go to the village office so as to be allocated the requested land after paying the fees. The appellant complied through receipt No.34987 of 16/06/1994. However, the said minutes, did not show the size of land that was approved by the village council to be allocated to the appellant. In his testimony, he just mentioned the area he began to cultivate in 1999 which was more than two acres. Apart from that, the appellant tendered the ruling of Eugene Primary court, Criminal Case No. 70/2010 in which he had sued the first respondent for contempt of court after he had contravened the order of Kimuli ward tribunal which prohibited them to do anything in the suit land until the dispute is finally determined. Also, the appellant in his evidence stated that, while his case was still pending before Kimuli ward tribunal, he was charged and stayed in custody until 2018 when he was released and found that, apart from the respondent whom they had dispute, other people had encroached it. On the other hand, the respondents, each contended to have lawfully acquired his/her land by purchase as alluded above. From their evidence, no one among the respondents who was ever allocated the land by the village council. Each one bought the land from an individual. According to the sixth respondent, the village council at one time allocated the land to Nikolaus Page 14 of 21 Rubambula. This confirmed that, the first respondent purchased the land that was allocated to Nikolaus Rubambula by the village council. Although the first respondent claimed to have sold part of his land which he purchased from Nikolaus Rubambula to other people who are sued by the appellant, the second to fifth respondents did not give evidence which traces back their ownership to Nikolaus Rubambula. They just tendered sale agreements showing how they acquired the land by way of purchase but, no one summoned the vendor to prove how the land was legally acquired or allocated by village council. Worse enough, no one stated the reason for failure to call the vendors. In totality, from the evidence of both sides, there are unanswered questions on the genuineness of claims from both sides. Firstly, the sixth respondent contended that, there was a time when there occurred famine in Karagwe District and the local leaders were directed by the District Commissioner to allocate the village land to the indigenous, however, the first to fifth respondents are not among the people who were allocated the suit land at that particular moment. In their evidence, the second to fifth respondents claimed to purchase the land between 2013 and 2016, the period when the appellant claimed to be in prison. For the first respondent, Page 15 of 21 it is clear that, there was a pending case before Kimuli ward tribunal before he was imprisoned in 2013. As alluded above, the appellant tendered before the trial tribunal, the documents to prove how he legally obtained the suit land. One among the documents is the minutes of the village council meeting in which he was allocated the land. However, the said minutes was type written, the names of the member who attended the meeting were listed but no one among the members signed beside his name. When the appellant was asked on why the members did not sign, he contended that, in Local Government (District Authorities) Act, No. 7 of 1982 prior to its amendment in 2002, there was no need for members to sign, instead, the minutes was to be signed by the Chairman and the Secretary only, which was fulfilled in the said minutes. Mr. Buntuntu objected that contention stating that, the procedure of conducting the local meeting had never changed, since enactment of the law, members of the meeting are required to sign and that has never changed. I had time to peruse the said law. Section 115(a) of the Local Government (District Authorities) Act, 1982 provides that: "115. Subject to this Act and to any other written law for the time being in force in relation to the acquisition, use Page 16 of 21 and disposition of iandf a local government authority may with the approval of the Minister- fa) self exchange, let, mortgage or charge any land or premises in its ownership or disposition;" Also, under section 105 of the same law, provides that: "105. The quorum at any meeting of a village council shall be notless than half of all the members of the council" Observably, although the cited provisions of the law do not clearly stipulate that, the attended members have to sign, but I did not find anywhere stating that, the minutes were to be signed by the chairman and secretary only However, in normal circumstances, it is the procedural requirement that whoever has attended the meeting, has to sign beside his name to authenticate his attendance, Besides, there is uncontroverted allegation that, among the attended members of the council, Castory Pastory is the son of the sixth respondent who by then was a student incapable of being member of the said village council. Therefore, in absence of signatures of the members who attended the meeting, and unchallenged allegation about legality of the members, the authenticity of the minutes remained questionable. Furthermore, although section 115 (a) quoted above vests authority to the village council to dispose of the land, such disposition Page 17 of 21 required the approval of the Minister. In this case, there was no evidence brough by the appellant to establish if the allocation made in 1994 was approved by the Minister. This in itself suffices to question the validity of the alleged allocation made in 1994. Furthermore, there is another issue which raises more questions concerning the validity of the alleged allocation. None among the documents tendered by the appellant indicated the size of the land the was allocated to the appellant. In the said minutes it was stated that: '7. ND, EVARISTM. BEEBWA Amekubatiwa kupewa Ardhi Hiyoko KABWERA (A) Toka KABWERA - MUGANI BARABARANI hadi juu ya miima ardhi hiyo na shamba Hiyokuwa (Ardhi ya Mzee Deogratias NGOGA) ameacha ameikabidhi kwa serikaliya Kijiji biia Emphasis is mine). Considering the extract above, it is clear that, description of the land in terms of its size alleged to be allocated to the appellant was insufficient. Besides, the letter of allocation did not indicate the size of the allocated land. It just mentioned that, it started from Mugani road to the hill. In fact, in order to prove the claims, the allocating authority was required to clearly describe the land by its size, location and boundaries in order to avoid Page 18 of 21 forthcoming confusion and encroachments. The appellant also in his evidence before the trial tribunal did not rescue the situation as he did not mention the size of the land which he claimed to be allocated by the village council. If the suit land was allocated to the appellant in 1994 with the documents tendered by him and kept in the village office, it was not expected for the same village council to allocate the same suit land or part of it to another person, Nikolaus Rubambula in 1996. Besides, both the appellant and Nikolaus Rubambula had receipt in respect of the suit land issued by the same village authority. Moreover, there is no evidence from either side to establish that, the allocation to Nikolaus Rubambula in 1996 was also approved by the Minister as required under sectionll5 (a) quoted above. All these indicates that, both allocations are questionable as they did not meet the requirement of the law, and thus not valid. From the evidence of both sides together with the tendered exhibits, I am satisfied that, neither the appellant nor the first to seventh respondents managed to establish that, the first allocation of the suit land by the village council either in 1994 or 1996 was lawful. Although the second to fifth respondents claimed to acquire their ownership by way of purchase from other people, according to the first respondent, it was him who sold his four acres to other people out of eight acres which he bought from Nikolaus Page 19 of 21 Rubambula who was allocated by village council in 1996. Thus, since the 1996 allocation was also not valid, no title can pass to the first to fifth respondent because it is trite law that, he who doesn't have legal title to land cannot pass good title over the same to another. See the case of Farah Mohamed Vs Fatuma Abdallah [1992] TLR 205. Under the prevailing circumstances, although the appellant had failed to prove the validity of his allocation of the suit land, this court cannot turn a blind eye and bless the decision of the DLHT which reverted the suit land to the first to sixth respondents while their ownership is also not valid from the beginning. That being said and since the allocation of the suit land was not valid from the beginning, I have no choice other than to invoke revisional powers under section 43 (!) (b.) of the Land Disputes Courts Act to nullify the proceedings, quash the judgments and set aside the decree and the orders of both trial and appellate tribunals. The resultant, the whole suit land previously occupied by the refugee, Deogratias Ngoga is reverted back to the village council of Kimuli village for it to be properly identified its size and boundaries and then be reallocated according to the law and procedures governing village land. It is also ordered that, in the course of reallocation of the suit land, priority should be given to the appellant as well as the first Page 20 of 21 to fifth respondents. Considering the circumstances of the case, I make no order as to costs. It is accordingly ordered. I. K. BANZI JUDGE 31/07/2024 Delivered this 31st day of July, 2024 in the presence of the appellant, the first, third, sixth and seventh respondents, Hon. Audax V. Kaizilege, Judge's Law Assistant and Ms. Peace Musasa, RMA and in the absence of the second, fourth and fifth respondents. Right of appeal duly explained. I. K. BANZI JUDGE 31/07/2024 Page 21 of 21