fikiri rajabu pazi vs charles mugishagwe 2021 tzhclandd 691 29 january 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND APPEAL NO.199 OF 2018 (Arising from the decision of District Land and Housing Tribunal for Kibaha in Land Application No. 132 of 2015) FI KIRI RAJAB PAZI.................. APPELLANT VERSUS CHARLES MUGISHAGWE................................. ....RESPONDENT JUDGMENT Date of last order: 15/01/2021 Date ofjudgment: 29/01/2021 MANGO, J. The appellant preferred this appeal against the decision of the District Land and Housing Tribunal for Kibaha in Land Application No. 132 of 2018 on the following grounds: 1. That the Trial tribunal erred in law for holding in favour of the respondent by declaring him to be the lawful owner of the suit land while he has no locus standi to sue the appellant in his personal capacity as the administrator of the estate of the late RAJAB PAZI; 2. That the trial tribunal erred in holding that the original owner of the suit land was Mzee Ujue Shari before being sold to the i Respondent, while the seller was not joined as necessary party in the trial proceeding to prove his ownership; 3. That the Trial tribunal erred in law for deciding in favour of the Respondent while he has no cause of action the Appellant; 4. That the trial Tribunal erred in law and in fact for declaring the Respondent as the lawful owner of the suit land and the appellant as a trespasser while there is no evidence to prove the same; 5. That the Trial Tribunal erred m law for mishandling exhibits tendered before the trial tribunal contrary to the law, hence the judgement is problematic; 6, That the trial tribunal erred in law for delivering judgement beyond the statutory time limit enshrined by the law. The Appellant was represented by Mr. Ramadhani Abdallah Chaurembo, learned advocate, wnile the Respondent was Mr. Yassin Hassan Mlwilo, learned advocate. The appeal was argued by way of wnrten submissions. Submitting in supped: of the first ground of Appeal, Mr. Chaurembo argued that the appellant was wrongly sued in his personal capacty while he is a mere administrator of the estate of the late PAJAB PAZI. He submitted that the land in dispute does not belong to FIKIRI RAJAB PAZI. The only reason that made the appellant to be a party to this case is his capacity as an administrator of the estate of the late RAJAB PAZI, his father. Citing Order XXX of the Civil Procedure Code, [Cap.33 R.E 2019] and tne case of ABDULLATIF MOHAMED HAMIS VS. MEHBOOB YUSUF OSMAN, FATINA MOHAMED, Civil Revision NO. 6/ 2017, the learned counsel argued that it was wrong for the appellant to be sued in 2 his personal capacity in the dispute involving a piece of land which forms part of estate of the late Rajab Pazi. He argued further that the issue was raised as a preliminary objection before the trial tribunal but the same was overruled. It was also highlighted during final submissions, again, the trial tribunal d'd not consider it. Submitting on the second ground of appeal he argued that, failure of the respondent to join Mr. UJUE SHARI, the seller of the disputed land is fatal because the law requires joinder of the seller in the disputes that involve recovery of land sold to a third party. He cited the case of JOHN EDWARD MWANGOSI VS SALUM MAJID SEIF AND 2 OTHERS CIVIL APPEAL NO. 56/2016, and JUMA B KAOA LA VS LAURENT MNKANDE (1983) tlr 103 in which joinder of seller in suits for recovery of land sold to third party was amplified. On the third ground of appeal, the learned counsel argued that, the respondent has no cause of action against the appellant, Fikiri Rajab Pazi. He submitted that it is mandatory for the complainant's pleadings to indicate the cause of action against the party against whom the case is instituted. As to the case at hand he is of a considered view that the respondent who was the applicant before the tribunal does not have a cause of action against the appellant. The appellant referred this court to the case of FADHILI MANJAWA, JOSEPH FIDELIS AND 36 OTHERS VS SOKOINE UNIVERSITY OF AGRICULTURE (SUA) Civil Case No. 381 of 2002 as authority. 3 On the fourth ground of appeal the appellant counsel submitted that, the respondent failed to prove ownership of the suit land and the alleged trespass by the appellant. He argued that the respondent had a duty to prove his case within the required standards. He is of tne view that the respondent failed to prove his case and it ought to have been dismissed by the trial tribunal. In his reply submission Mr. Mlwilo argued that the issue of the appellant being the administrator of the estate of the late Rajab Pazi is not contested. He submitted that the issue at hand concern the appellant's trespass over the suit land. The respondent considers the appellant and his late father to have no right over the suit land. Alternatively, the respondent counsel argued that the appellant prosecuted this case at the tribunal level as the administrator of tne estate of the late Rajab Pazi. On the second ground of Appeal, he submitted that, non joinder of the seller in this case is not fatal because the seller of the suit plot has already died. He added that, the joinder of the seller would have been necessary where the purchaser is sued alone, which is not the case in this appeal. On the third ground of appeal, he submitted that, the plaint establishes a cause or action against the appellant. He argued that the capacity of the appellant in this suit is irrelevant because what it concerns the respondent is that the appellant does not have legal title over the suit land, he is a mere trespasser. He added that, even in the proceedings before the trial court the appellant failed to establish ownership over the suit land by himself or as the administrator of the estate of the late Rajab Pazi. 4 As to the fourth ground of Appeal the respondent argued that he managed to prove his case within the required standard and that the trial tribunal correctly held in his favor after finding that the respondent's evidence weigh more than the appellant. The respondents counsel argued that the fifth ground of appeal be ignored due to the fact that the procedural irregularity did not occasion justice to any of the parties. The appellant had no rejoinder. I have considered submissions by both parties and court record. The appellant had filed six grounds of appeal however, in his submission he did not submit on the 6th ground of appeal which concerns time spent by the trial tribunal in composing and delivery of the Judgement. Failure of the appellant to submit on this ground of appeal suggests that he has impliedly dropped the same, therefore this court will not consider it m this judgement. 7'he remaining grounds of appeal and the submissions show that the appeal is basically on three 'ssues which are; whether the case was properly filed before the trial tribunal, evaluation of evidence by the trial tribunal and handling of exhibits I will start with the manner the case was instituted, to be specific whether the case was instituted against proper party which is the concern of the first, second and third grounds of appeal. The respondent instituted the case before the trial tribunal against the appellant for trespass into the suit s [and. For a case of trespass the respondent was only required to establish ownersnip over the suit land and that the appellant had trespassed into the suit land without any lawful justifications. Failure to prove the same would have attracted dismissal of the application by the tribunal. The suit land is not registered, thus, in the eyes of the respondent, it was tne appellant who trespassed into his land. To him the appellant was a trespasser as he had no any title over the suit land. In such circumstances, the respondent was correct to sue the appellant in his own capacity as he did not Know that the appellant was acting as an administrator of the estate of the late Rajab Pazi. The duty of the appellant was only to defend the case filed against him by proving that he is not a trespasser but he owns the suit land as the administrator of the estate of the iate Rajab Pazi. Had the property in dispute been registered in the name of the late Rajab Pazi, tne respondent would have been required to sue the administrator of his estate. In such circumstances the case was properly instituted against the appellant in his personal capacity because, the respondent considers the appellant to be the person who trespassed nto his land and not the iate Rajab Pazi. It should be noted that the appellant did not raise any counter claim against the respondent. Therefore the trial tribunal would not have declared the appellant or the late Rajab Pazi to be the owner of the suit land. The mandate of the tribunal were limited to granting or dismissing the application only. The appellant if he had wished to be declared tne owner of the suit land, he would have raised a counter claim against the respondent, and prove the same on the required standards. 6 This disposes the third ground of appeal which concerns non-disclosure of the cause of action. The application shows clearly that the respondent alleges that the appellant trespassed into his land while the appellant alleges to be the owner of the suit land as the administrator of the estate the late Rajab Pazi, Therefore there is a cause of action to be deliberated and adjudicated by the court. The second ground of appeal should not detain this court much. As correctly submitted by the counsel for the respondent, joinder of the vendor m a case instituted by the purchaser involving trespass to the land sold to the latter is irrelevant. The respondent does not have any cause of action against the late Ujue Shan, he has a cause of action against the appellant for trespass into the land he believed to be his property after purchasing the same from the late Ujue Shari. The vendor ought to have been summoned as a witness that he sold the land to the purchaser. The fourth ground of appeal concerns evaluation of evidence before the trial tribunal. The appellant argued that the respondent failed to prove that he trespassed into his 'and For trespass to be established the respondent needed to prove ownership over the suit land and the actual act of trespass by the appellant. Court record establishes that the respondent produced as evidence of his ownership over the suit land, the sale agreement between him and Ujue Shari. He also had three witnesses who testified that the land belonged to Ujue Shari, among them was Juma Mbegu Mohamed who testified as PW3. His testimony was to the effect that the land was given to Mzee Ujue Shari during Operation Vijiji in 1975 and that he was present when the land was given to Mzee Ujue Shan 7 because he was also allocated a piece of land adjacent to the land allocated to Ujue Shari. He testified further that, the suit land does not belong to the late Rajab Pazi, it belonged to the late Ujue Shari. He also testified on the size of the land to be one acre as each of them was allocated a piece of land measuring one acre only. In his defence the appellant alleged that, the land in dispute belongs to his late father, Rajab Pazi who purchased the same from one SHEHE MATAJABU. He tendered the alleged sale agreement between Rajab Pazi and the said SHEHE MATAJABU. As correctly held by the trial tribunal, the document does not describe the farm that was the object of the transaction nor is it signed by any of the parties to the agreement. In such circumstances I concur with the reasoning of the trial tribunal that the authenticity of the agreement is questionable and it is very dangerous to rely on such kind of evidence. The appellant also had two witnesses who according to their testimony, they only saw the late Rajab Pazi farming in the suit land but they did not testify on how the said Rajab Pazi acquired ownership over the suit land. In such circumstances, the trial tribunal was correct to hold in favour of the respondent because that the respondent's evidence weighs more than the appellant. It is trite law that he whose evidence weighs more than the other must win, see the case of HEMEDI SAID VS. MOHAMED MBILU (1984) TLR 113. As to the issue of handling of exhibits, I agree with the counsel for the appellant that the exhibits were not properly endorsed as required by the law. However, this irregularity does affect the contents of the documents tendered as exhibits, it is only a procedural irregularity which did not 8 occasion failure of justice to any of the parties in this appeal. And the appellant did not establish that failure of justice was occasioned as a result of the irregularity in registering exhibits. For that reason the irregularity can be ignored under section 45 of the Land Disputes Courts Act, [Cap. 216 R. E. 2019]. The section limits the courts from reversing the decisions of the tribunals on the reason of procedural irregularities which did not occasion failure of justice to the parties. For those reasons, I hereby uphold the decision of the trial tribunal and dismiss the appeal with costs. z. JUDGE 29/01/2021 9