fikiri rajab pazi vs charles mugishagwe 2021 tzhclandd 16 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 * Anniication No.132 of 2015) FI KIRI RAJAB PAZI APPELLANT VERSUS CHARLES MUGISHAGWE RESPONDENT Date of last order: 15/01/2021 Date ofjudgment: 29/01/2021 MANGO The appellant^tafengd thislbpeal against the decision of the District Land and in Land Application No. 132 of 2018 on the fo^wing^^^^^k^ 1. That?|hieJ'rialgriburial erred in law for holding in favour of the respondenfrby^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; i 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 nolevidence to prove the same; i 5. That the Trial Tribunal erred in Jaw for^ishandlihg^xhibits tendered before the trial tribunal^cqntra%xw^the|law, hence the judgement is problematiOBfea 6. That the trial tribunal erredirrlaw forj|^delivering judgement beyond the statutory|ffme limitjenslirined by the law. The Appellant was Tepresehted^By MrOamadhani Abdallah Chaurembo, learned adv<^^^whild^^Rj^^^^t was Mr. Yassin Hassan Mlwilo, learned advocate. Tnejappeal|was argued by way of written submissions. Submitti^tein suppoTf^oMie^Yirst ground of Appeal, Mr. Chaurembo arguedjthat the<appellant was wrongly sued in his personal capacity while he is ahmere administrator of the estate of the late RAJAB PAZI. He submitted^iM.J:he|!and 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 the 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 lateiRajab 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 i tribunal did not consider it. Submitting on the second ground of appeal he argd^dthat, failure of the respondent to join Mr. LDUE SHARI, the seller.of the diluted land is fatal because the law requires joinder of the seller ii^ie^gpute^^^jnvolve recovery of land sold to a third partyWle cfted jW^s^of JOHN EDWARD MWANGOSI VS SALUMIMAJIDSEIF AND 2 OTHERS CIVIL Wk APPEAL NO. 56/2016, and JUMA^B KA^W^I^URENT MNKANDE (1983) TLR 103 in which jojgder of leller inlsjjits fSHecovery of land sold IF wk W, to third party was amplified. ww On the third ground^M.appeal, thejjeamed counsel argued that, the respondent feuse^^gioi^gainst the appellant, Fikiri Rajab Pazi. He s^mitted tha|^i^^|ndatory for the complainants pleadings to indica^Se^^ise SfbactiorHagainst the party against whom the case is instituted. As to "the else at hand he is of a considered view that the respondehjj^/yho was the applicant before the tribunal does not have a cause of actioWgainst 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 the view that the respondent failed to prove his case and it ought to have been dismissed by the trial tribunal. trespass over the suit land. The resf^^^^W^jdersJ^e appellant and his late father to have no right over^he suiwOlAltf^atJvely, the respondent counsel argued that the apjgllbnt pPosecLrtfd^this'case at the tribunal level On the second arounahf Appeal, hejsubmitted that, non joinder of the seller in this cdse is*fret fatabbecause~the seller of the suit plot has already died. feaddedMatBtl^jpina^of the seller would have been necessary where/the purcihgser<is?sued^albne, which is not the case in this appeal. On thwthird grofind of^ppeal, he submitted that, the plaint establishes a 11 f cause enaction against the appellant. He argued that the capacity of the appellant in tniS^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 respondents 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. 1 The appellant had no rejoinder. I have considered submissions byWofhw?aniies arid\ court record. The appellant had filed six grounds submission he did not submit on the 6th gra(||Fof appeatahiGh^ncerns time spent by the trial tribunal in com^sinmand ^j^^o^he'Judgement. Failure of the appellant to submit of appeal suggests that he has impliedly dropped the^SH^th^^o^^^^urt will not consider it in this judgement, Jiu^ appeafe. basicallWon three issues which are; whether the case was properly fi&^^^^ 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 5 land. For a case of trespass the respondent was only required to establish ownership 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 the appellant who trespassed into his land. To hirirgthe appellant was a trespasser as he had no any title over the suit land. In stfeh circumstances, the respondent was correct to sue the appellailfifefus^w^capacitysas he did not know that the appellant was a&ipg aslan aSmipiptStor of the estate of the late Rajab Pazi. The ddfhoyh^appell^nt was only to defend owns the suit land as the a^mihistratpj|ofth^gstate;bf the late Rajab Pazi. Had the property in dispute been registered in<the name of the late Rajab Pazi, the responden&ouldggve^been(required to sue the administrator of his estate. In suctertSmstanlesThe^case was properly instituted against the appellantWirxhis personate parity because, the respondent considers the a|pfllaht>to^^^®^per^^ho trespassed into his land and not the late Rgab It shouldl^^^^pthat 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 the 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 tnis|court much. As ’ wk correctly submitted by the counsel for the respon^nt, joiqdegtof the vendor in a case instituted by the purcha^^wolym^^^ag^tolthe land sold to the latter is irrelevant. The i^po^enfedoes^not have any cause of action against the late Ujue Shad, h^^^^l^^&^action against the appellant for trespass intogtl^ land^he believed to~be his property after purchasing the same fromlthe lateJJju&hariWhe vendor ought to have been summoned as %tnts land to the purchaser. The fourth gro^dof^appealuzontems evaluation of evidence before the trial tribunal. The^appellant argued that the respondent failed to prove that he trespassea^o hisxland. For trespass to be established the respondent neede8||o prov«S|jwnefship over the suit land and the actual act of trespassrl^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 Shari 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 infciispute belongs to his late father, Rajab Pazii who purchased the^sam^^n one SHEHE MATAJABU. He tendered.the aliened sale aareemenkbetween Rajab Pazi ^^^^^ffiounal, the document does not describe thei^farrn tnaK wasxme object of the transaction nor is it signed by ariy^of thWaftieSftSthe^greement. In such circumstances I concur witfifthe reasonirig|of the^trial tribunal that the ST authenticity of the agreement is questionable and it is very dangerous to the suit landWt the^did rWtestify on how the said Rajab Pazi acquired correct! to holdWnvfavour of the respondent because that the respondent's evidence^weighs rigre than the appellant. It is trite law that he whose evidence weigf^^lre than the other must win, see the case of HEMEDI SAID VS. MOHAMED MBILU (1984) TLR 113. f 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 nrracinn failiirp of iii^tirp tn thp nartipc; 9