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IN THE HIGH COURT OF TANZANIA (LA DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 14991 OF 2024 (Originating From Application No. 76 of 2018, Ilala District Land and Housing Tribunal) FUNGO GODLOVE BENSON 1^^ APPELLANT ROZENA FUNGO 2^° APPELLANT VERSUS CHRISTINA MWAMENGO 1^^ RESPONDENT KASELE KWIKIMA 2^° RESPONDENT ABUBAKAR ABDALLAH MAGOMBA 3'^'^ RESPONDENT JUDGMENT 23"^ to 28^^ August, 2024 E.B. LUVANDA,J In this appeal, the Appellant above mentioned raised three grounds of appeal, thus: One,the Honorable Chairperson erred in law and fact for immensely failing to declare the Appellant as the lawfully owners of the suit property despite the Appellant to prove their ownership on the suit property; Two, although the Honorable Chairperson visited the focus in quo, still the Chairperson erred in law and fact to deliver the judgment accordance (sic) to the order of the High Court dated 17/10/2023 between the parties, that the testimony adduced in the proceedings remain intact; Three,the Honorable Chairman erred in law and fact to struck out the Appellant's application and to order the Appellant to file a fresh 1 suit and not to use the document which do not reiate to the Appeliant's ciaim whiie the evidence adduced during the proceedings were very ciear to the ownership of the suit iand. Mr. Masuna Gabriei Kunju learned Counsel for Appellant, for ground number one submitted that the Appellants proved their ownership on the suit land, arguing the Appellants adduced their testimonies which were supported by document. He submitted that the key witness to verify or make clarification on the suit land was the seller (Second Respondent), arguing based on the testimony of the seller it is undisputed that the original owner of the suit property before passing to the Appellant was the Second Respondent. He submitted that the Second Respondent proved that the Appellants are the lawful owners of the suit property, arguing the Second Respondent verified before the Tribunal that the Appellant's land is not the same to the First Respondent. He cited the provision of section 110 of the Law of Evidence Act, Cap 6 R.E. 2022. For ground number two, the learned Counsel submitted that it is ciear from the record that the Tribunal was supposed to deal with the visit so that the Appellants and the First Respondent to locate their land physically. He submitted that after the Tribunal was satisfied with the location of the Appeliant's land, it was expected due to the evidence adduced before, the duty of the Tribunal was to declare the Appellant as the lawful owner of the suit property and not to raise another evidence that DW3 and DW4 proved that the Appellants vended the part of land to Mussa Hamis Madilu and Alphonce, citing page eight of the impugned judgment. For ground number three, the learned Counsel submitted that they don't see the essence of filing a fresh suit while the Appellants sued the proper parties who trespassed into the Appellant's land which the Appellants proved ownership. In reply, Mr. Bitaho Baptister Marco learned Counsel for First and Third Respondent submitted that the Tribunal was convinced by the testimony of DW3 (Second Respondent) who is the original owner along his witness DW4 that the Appellant had disposed his plot measuring 16 by 20 to Mussa Hamis Madiii and the remained plot disposed to Alphonce, arguing that the Appellant remained with nothing in that land in dispute. He submitted that the Tribunal correctly handled the matter by not declaring the Appellants as the real owner of the suit land and consequently struck out the matter not only for reason that the First Respondent is the first person to buy the land in issue but also the piece of land measuring 17 by 17 by 19 by 34, 26 claimed being owned by the Appellant had already disposed to Mussa Hamis Madiii and the remained land disposed to Alphonce since 2021, arguing during the site visit plots with measurement of 17 by 17 by 19 by 32, 26 on the land in issue was outdated due to various sales made by the Appellant to DW4 and Alphonce. He submitted that the only piece of iand remained to be the property of the Third Respondent. I For ground number two, the learned Counsel submitted that the Tribunal did not raise another evidence. He submitted that the Tribunal had no reason to consider the document that were outdated, arguing the iand was sold to the First Respondent prior being sold to the Appellants. For ground number three, the learned Counsel submitted that the Tribunai was logicai in ignoring land application No. 76 of 2018 filed by the Appellants and struck out the same, arguing that the plots claimed by the Appellants to be their property measuring 17 by 17 by 19 by 24, 26 has already disposed a piece of 16 by 20 to Mussa Hamis Madili and the remained plot disposed to Aiphonce, arguing nothing has left to the Appellants. He cited Tanzania Fish Processors Ltd vs Christopher Luhanyuia, Civil Appeal No. 21 of 2010, CAT, for a proposition that a court of law makes determination based on evidence and the iaw, arguing where a party fails to establish his/her assertations, a court cannot act arbitrary and award him/her that which has not been proved. Mr. Siraji Mussa Kwikima iearned Counsel for Second Respondent submitted that the Tribunal heard the witness along Mussa Hamis Madili(DW4)and made its findings that from its anaiysis of ail what testified, large portion of the suit premises has been soid by the Appellant to DW4 and one Clement, arguing therefore that cannot proceed with declaring the Appellants as the lawful owner of the whole land while they have no longer any title to a large portion of that land. He submitted that It amount to absurdity declaring the Appellants as lawful owner of the land they no longer possess/occupy large portion of It, arguing also that It will amount to Infringement of right to be heard In respect of DW4 and Clement by determining the question of ownership of land without making them parties to the suit, citing Juma B. Kadala vs Laurent Mnkande [1983] T.LR 103. For ground number two and three, the learned Counsel submitted that proceeding to declare the Appellants as lawful owners of the suit land which Is currently under the occupation of DW4 and Clement will amount to denying them with fundamental right of being heard In the proceedings touching their Interest on land which has already been brought to the attention of the Tribunal, arguing the Tribunal rightly struck out the Appellant's application. On rejoinder, the learned Counsel for the Appellants submitted that they don't see the essence of filing a fresh suit while the records are very clear that the Appellants proved their ownership of the land In dispute which the Tribunal acknowledged and Is aware about testimonies and evidence adduced In trial and after site visit, citing page seven and eight of the Impugned judgment. He submitted that the complaint that the Appellants deposited (sic) land to other people are just mere words and were not among Issues raised or framed at the Tribunal. He submitted that even authorities cited by the Respondents are I I irrelevant to the case at hand. He submitted that the relevant issue was the Tribunal to give out his decision basing on the order of this Court to the effects that parties to locate their plot or land on site visit at the locus in quo. Actually, going by the judgment of the Tribunal, on its findings the Tribunal was prepared to declare the Appellants as the lawful owner of the suit land. However, the Tribunal refrained to declare the Appellants as lawful owners of the disputed land on the explanation that it was revealed that the Appellants disposed part of the suit land measuring 16 by 20 to DW4 in 2021 and another portion disposed to one Alphonce. In its wording the Tribunal ruled, I quote, 'Baraza hiii n!amri, na tukitamka hivyo mdaianaweza kuitumia hata kuuza eneo ambaio si iake tena^ na kuongeza migogoro ingawa tuiivyotemebeiea ardhi bishaniwa, mdai aiionyesha ardhi aiiyouziwa na mdiawa Na. 2 kwa vipimo vya kwenye kiieiezo Ml. Lakini kwa kuwa kipimo hicho kiiishapitwa na wakati kutokana na mdaiwa (sic) kuuza sehemu au inawezekana kiwanja chote, ni wazi kwamba kutamka mdai kama mmiiiki wa ardhi bishaniwa kunaweza kupeiekea kuibuka kwa migogogoro zaidk To my view, the learned Chairperson slept into error. This is because the proposition as to whether the Appellants disposed the wholly or portion of the suit land to third parties, was not among the issues framed for determination by the Tribunal. Equally the argument of future disputes was not among issues which the Tribunal was called to dkermine, neither the Tribunal was invited by parties to invent Chinese wall to block future disputes. Rather the Tribunal duty was to determine whether the Appellant's are lawful owners and whether the Second Respondent disposed the suit land to the First Respondent lawfully. As I have said above, the Tribunal findings were inclined towards declaring the Appellants as lawful owners of the suit land. Meaning that the Second Respondent disposition done to the First Respondent was not lawful, for reason that the Second Respondent had no title to pass to the First Respondent after having disposed it to the Appellants. Above all, the Second Respondent(DW3)accused the First Respondent to have breached the initial sala agreement which entailed DW3 to allocate a substituted plot to the First Respondent nearby the Appellants' land. DW3 asserted that, I quote, 'Nikamwambia pale aiiposhindwa siwezi kukubaii kwa sababu kavuruga mkataba, nikamwambia nitamhamishia sehemu nyingine, iakini mtaa huo huo. Baada ya kumwambia hivyo aiikubaii, hivyo nikamhamishia kwenye eneo iinguine karibu na eneo fa FUNGO. Hata hivyo baada yah apo Mdaiwa Na. 1 aiiingia kwenye eneo ia FUNGO,niiipowasiiiana na MWAMENGO (Mdaiwa Na. 1) mawasiiiano hayakuwa mazuri nikamshauri FUNGO afungue kesi. Baada ya hapo nikapata taarifa kutoka serikah'ya mtaa kuwa MWAMENGO ameuza tena Hie eneo' These facts were not cross-examined. After visiting the locus in quo, the Tribunal made the following observation, I quote, '4 Baraza katika kupima viwanja kwa mujibu wa vieieiezo Ml na D2, tumegundua na kuona kwamba kiwanja cha Wadaikwa mujibu wa keieiezo Ml kimeonekana;iakini kiwanja hicho kwa mujibu wa kieieiezo D2 kuna sehemu kubwa inabaki, na pia jengo iiiiiojengwa na Mdaiwa Na.3kwenye kiwanja aiichouziwa na Mdaiwa Na. 1 iimevuka mipaka inayoonekena kwenye kieieiezo D2kwa mita 2.5' When assessors were called to opine, Bi. JOKHA made the following opinion, 'Kama Mdaiwa Na. 1 anadai eneo ienye mgogoro ndio eneo aiiiouziwa na Mdaiwa Na. 2 tuiipokwenda kenye eneo ienye mgogoro na kupima eneo iiiionekana ni dogo kuiiko vipimo vyake vinavyoonesha. Eneo anaiodai Mdaiwa Na.2kumuuzia Mdaiwa Na. 1 Una vipimo sahihi na vipimo vinavyooneshwa kwenye kieieiezo cha Mdaiwa Na. 1(Dl). Kutokana na vipimo hivyo nidaii(sic, daiiii)tosha kwamba eneo ienye mgogoro sio eneo aiiiouziwa Mdaiwa Na. 1 na Mdaiwa Na.2. Madai ya Mdai yakubiiwe' I affirm this position of the w se assessor. The finding by the learned Chairperson that exhibit Ml is bvertaken by events for reason that the Appellants had already disposed their land to third parties, is legally unfounded. This is because the Appellants sued on 15/03/2019. The alleged disposition took place between 2020 and 2021. Above all, there is no evidence suggesting that the Appellants disposed the entire land. Therefore, the Tribunal was wrong to engage on its own accord on speculation of the alleged possible future disputes in case the Appellants are declared to be lawful owners of the suit land. To my view, the Tribunal ought to remain focused on issues before it instead of dealing with prediction. The alleged infringement of the right to be heard in respect of the alleged third parties(DW4) and Alphonce alias Clemence, has no room for contemplation under the circumstances of this case. I therefore overturn the verdict of the Tribunal striking out the suit, and substitute with a verdict that the Appellants proved their suit. The Appellants are declared to be lawful owners of the suit land measuring 17 by 17 by 18 by 34, 26 meters located at Msingwa Hamlet Bonyokwa Ward, Ilala Municipality. The appeal is allowed. The First Respondent will foot costs for this appeal to the Appellants. E.B. Ll^NDA JUDGE W8/2024\ Judgment delivered In the presence of Mr. Denice Machul Advocate holding brief for Mr. Masuna Gabriel Kunju learned Counsel for Appellant, also for Mr. SIrajl Mussa Kwlklma learned Counsel for Second Respondent, Mr. In absence of the First and Third Respondent. COiiHy u o E B. LUVAND JUDGE 28/(W2024 10