LAND APPEAL 18011 2024

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 18011 OF 2024 (Originating From Appeal No. 179 of 2021, Kibaha District Land and Housing Tribunal) FURAHISHA OMARY SELEMANI........................................................... APPELLANT VERSUS BABU MSAMI.....................................................................................RESPONDENT JUDGMENT 9th to 20th September, 2024 E.B. LU VAN DA, J This is a second appeal. The Appellant sued the Respondent at Kerege Ward Tribunal where he lost. The Appellant unsuccessful appealed to the Kibaha District Land and Housing Tribunal (DLHT) which upheld the decision of the Ward Tribunal. Hence this appeal. In the petition of appeal the Appellant raised three grounds of appeal: One, the Ward Tribunal and first appellate Tribunal erred in law and fact for failure to declare that the Appellant being administrator of the estate of the late Omary Selemani Mwenegoha is the lawful and rightful owner of the suit land; Two, the Ward Tribunal and first appellate Tribunal grossly misdirected themselves on the question of burden of proof; Three, the Ward Tribunal and first appellate Tribunal erred in law and fact to entertain the matter with serious material irregularities and illegalities. i Mr. M.R. Kiondo learned Counsel for Appellant, started to argue ground number three by splitting into five sub paragraphs. One, non joinder of necessary party. The learned Counsel submitted that pursuant to the sale agreement tendered by the Respondent, the latter executed sale agreement with Mr. Juma Ramadhani who had not been joined as necessary party, citing Juma B. Kadala vs Laurent Mnkande [1983] TLR 103. Two, gender of members who participated have not been disclosed in order to ascertain its composition pursuant to section 14(1) of the Land Disputes Courts Act, Cap 216 R.E. 2019. Also citing Festo William Mlenduka vs Telesia Francis Kiwoli, Misc. Land Appeal No. 149 of 2008. Three, the trial Tribunal did not ascertain the pecuniary jurisdiction. He submitted that the pecuniary jurisdiction of the Ward Tribunal is provided under section 15 Cap 216 (supra), being a property valued at three million shillings. He submitted that the value of the suit land at the time when the dispute was filed had not been stated so as to establish the trial Tribunal to determine whether or not the matter fell within its pecuniary jurisdiction, citing Lujuna Shubi Ballonzi, Senior vs Registered Trustees of Chama cha Mapinduzi [1996] TLR 203. Four, no continuity of members who participated and that the trial Tribunal was not properly composed. He submitted that the composition of the Ward Tribunal 2 is stated under section 11 Cap 216. He submitted that it is clear that the trial Tribunal presided over the proceedings where the number of members female members were less than three as required by the law. Five, procedure during the visit in quo had not been complied with, citing Nizar M.H. Ladak vs Gulamali Fazal Janmohamed [1980] TLR 29. Five, the learned Counsel submitted that the trial Tribunal initially referred the dispute to the District Land and Housing Tribunal, but for no reasons stated in the proceedings the trial Tribunal continued to preside/determine the dispute. Six, the Treasury (sci, secretary) involved in decision making. He submitted that the Secretary namely Crawford C. Ndanshau who is not a member of the Tribunal used to preside over the proceedings and involved in decision making. He cited Lucas Mwaruka vs Clement Mwaruka, Mi sc. Land Appeal No. 27 of 2012. Ground number two, the learned Counsel submitted that the evidence adduced by the Respondent was weak and contradictory to support his defence. He submitted that Mwinyikodo Juma Ubaya asserted that the sale of the suit land was done between the Respondent and Omary Selemani. He submitted that Hussein Abdallah Katendele II did not mention Omary Selemani rather mentioned a different individual. He submitted that nowhere in the testimony of the Respondent and other witness stated that Omary Selemani donated his 3 power to Juma Ramadhani to dispose the suit land to the Respondent. He submitted that witness failed to explain why Omary Selemani donated powers to Mr. Juma Ramadhani. He submitted that they did not tender a power of attorney. He submitted that no will was tendered. He submitted that nowhere it is stated that Mr. Juma Ramadhani was acting on behalf of Omary Selemani. He submitted that the allegations that the Respondent purchased the suit land from Omary Selemani or Omary Selemani assigned Juma Ramadhani to act in his behalf, is unfounded. For ground number one, the learned Counsel submitted that it has clearly evidenced that the late Omary Selemani Mwenegoha did not dispose the suit land, arguing it was wrong for the Tribunal not to declare the Appellant being the legal representative lawful owner of the suit land. Mr. Hamisi Athumani Mbangwa learned Counsel for Respondent, for ground number one submitted that the suit land was sold by the owner many years ago ) before his death. He submitted that it is in record that the suit land was sold by the owner Omary Selemani Mwnegoha on 5/06/2004 and he passed away on 01/05/2011, being six years after disposing the suit land. He queried as to why the Appellant sued the Respondent post demise of the owner. He submitted that the Appellant failed to prove that he is the owner of the suit land. He 4 submitted that the law is that who allege must prove, citing section 110, 111 and 112 of the Evidence Act, Cap 6 R.E. 2019. For ground number two, the learned Counsel submitted that the Appellant failed to meet even the minimum balance of probability, arguing proof in civil matters is on the balance of probability. He cited the case of National Bank of Commerce Ltd vs Desiree & Vyonne Tanzania and Four Others, Commercial Case No. 59 of 2003 HC. On ground number three, regarding non joinder, the learned Counsel submitted that the first appellate Tribunal was correct to rule that it was upon the Appellant to join whoever he wanted to join as a party to the case, argued it is the Appellant who filed a case. He submitted that the Ward Tribunal are not bound by the provision of Cap 33 (supra). Regarding the issue of pecuniary jurisdiction. He submitted that the Ward Tribunal had jurisdiction to deal with the matter, for explanation that the value of the suit land is TZS 280,000/= below TZS 3,000,000 which is the pecuniary jurisdiction of the Ward Tribunal, citing section 15 Cap 216 (supra). He submitted that it was otherwise the obligation of the Appellant to submit the valuation report, citing Sospeter Kahindi vs Mbeshi Mashini, Civil Appeal No. 56 of 2017, CAT Mwanza. He submitted that the question of pecuniary jurisdiction was not an issue before the trial Tribunal, arguing it is wrong for the 5 Appellant to raise it at appeal, citing Maigu E. Magenda vs Abrogast Maugo Magenda, Civil Appeal No. 218 of 2017, CAT Mwanza. For a ground that gender of members who participated have not been shown in order to ascertain its composition. The learned Counsel submitted that the composition of members was correct in terms of sections 4(3) and 11 Cap 216, citing Abdallah Mohamed vs Halid Mohamed, Misc. Land Appeal No. 1 of 2019, HC Tanga For other complaints, the learned Counsel submitted generally that both the Ward Tribunal and the first appellate Tribunal acted in accordance with the law. He submitted that reasons for decision by the first appellate Tribunal are legally correct and relevant. On my part, I will tackle the grounds of appeal, along the preference of the learned Counsel for the Appellant. For ground number three, on a question of non joinder of the so called necessary party. Basically, the Appellant is bringing unnecessary arguments. At the Ward Tribunal it is the Appellant who sued. Therefore, as ruled by the first appellate Tribunal, it was his obligation to choose who to sue or join depending on the way he framed his case and cause of action and not reserving it as one of the complaints for lamenting at appeal stage. Above all, it is elementary that the provisions of Cap 33 do not apply to the Ward Tribunal. Therefore this argument is totally misplaced and misconceived. 6 The question of gender and quorum of members of the trial Tribunal was delt with by the first appellate Tribunal, at page six of the impugned judgment where the first appellate Tribunal cited Abdalamani Moahmed (supra), where this Court speaking through Honorable Mruma, J commented, I quote, 'In my view section 11 of the land Disputes Courts Act, cap 216 does not have anything to do wit coram at the sitting of the ward tribunal for the purpose of adjudication, the provision is geared towards the formation of the ward tribunals. The relevant provision for the Coram during adjudication is section 4(3) of the Act...the law as quoted above doesn't require gender balance' Therefore, a complaint relating to gender inbalance and quoram of members of the trial Tribunal is settled. Regarding a complaint that the trial Tribunal did not ascertain its pecuniary jurisdiction in connection to the suit land. This argument too is awkward. At the trial Tribunal, it is the Appellant who sued, now staging an objection against his own action, did and cousre is somehow strange. Above all, as alluded by the learned Counsel for the Respondent, pecuniary jurisdiction of the trial Tribunal was not among the issue raised thereat. Indeed, it was imperative for the Appellant to disclose the value of the suit land. It is illusion to invite appellate courts to determine something without evidence or proof. In Sospeter Kahindi (supra), it was ruled, 7 We are of the view that the jurisdiction issue raised could not be determined without evidence on the value of the subject matter' Regarding non compliance to the procedures of visiting the locus in quo. The learned Counsel did not say if in Nizar M.H. Ladak (supra), it subjected the Ward Tribunal to such technical glitch or aspect and procedures. To my understanding, everything done at such level to wit Ward Tribunal, procedural aspects must be minimized to its lowest level, regard being if what was done can be capable of being grasped and understood by the superior Tribunals/Courts, or if it can assist to render justice to parties. Going by the record of the ward Tribunal, depict the trial Tribunal conducted a visit and a made a skillful, neat and conspicuous drawing depicting the size of the suit land. The alleged missing information (drawer or maker, description of permanent crops) the learned Counsel did not explain as to its relevance in determining ownership of the suit land. Regarding non reading aloud the sketch plan to parties, to my view amount to overstretching and extending procedural aspects to the Ward Tribunal which is not the intention of the law makers, that superior Tribunal/Courts should be busy imposing and extending all technical aspect and cumbersome procedures observed at and by professional learned personal, and imparting them lay to members of the ward Tribunal. 8 Regarding a complaint that the trial Tribunal referred the matter to the District Land and Housing Tribunal (DLHT), then for unexplained reason proceeded to dispose it. It is true that on 22/06/2021, the members of the trial Tribunal unanimously crafted and signed a letter transferring the matter to the DLHT. But matters subject for referral therein, were not subject to the question of jurisdiction of the Ward Tribunal. Indeed, the learned Counsel did not say how his client was prejudiced by a reversal of the members of the trial Tribunal to sit and determine the matter to its finality on merit. It is true that at the front page of the judgment of the trial Tribunal one Crawford 0. Ndashau was mentioned as among members of the Tribunal, but signed under his capacity as Secretary of the Ward Tribunal. However, his name is missing among members who opined for decision. May be for the sake of argument, in the process of decision making, members were referred by numbers. At a front page a total of seven legally members signed. In decision making, seven members were recorded to had voted for the decision. By necessary implication, the Secretary was excluded in decision making. Therefore, the argument is unmerited. Ground number two. As prefaced at the outset, this is a second appeal. The rule is on the second appeal, matters relating to assessment and evaluation of evidence are inapplicable save for compelling reason. Herein the learned 9 Counsel technically invited me to embark on re-evaluating the testimony;of the I so called Respondent, Mwanyiko Juma Ubaya, Hussein Abdallah Katendele II, Juma Ramadhani Mohamed, Abasi Juma Nassoro, regarding whether Omary Selemani Mwenegoha (deceased) disposed the suit land also the agreement between the Respondent and Mr. Juma Ramadhani acting on behalf of Omary Selemani. The testimony of these witnesses were subject for scrutiny by seven members of the trial Tribunal who had an opportunity of seeing their demeanor. At the end of the day, the trial Tribunal ruled, I quote, 'Maamuzi ya baraza: Kutokana na maeiezo ya awaiipamoja na maeiezo ya nyongeza ya pande zote mbiii, ikiwa ni pamoja na ushahidi na vieieiezo vya pande zote mbiii, baraza Hmepitia na kusikiliza kwa makini na kuzingatia maoni ya wajumbe wote wa baraza hili na kuamua yafuatayo: Mdai (Furahisha Omary) hana haki ya kumiHki eneo hiio. Mdaiwa (Babu Msami) ndiye mmiiiki haiaiiwa eneo hiio' Also, the same testimony and documentations were subject for re-evaluation by the first appellate Tribunal. Therefore, the door for this Court sitting as a second appellate court to embark on third round of evaluating the same testimony, is not available. This is in tandem to the rule that this court cannot interfere the two concurrent findings on the question of facts by the jury and 10 first appellate court, where no reasons for departure are apparent on its face or record. This adumbration will take into board, ground number one as well. The decision of the first appellate Tribunal is upheld. The appeal is dismissed on its entirety. Each party will bear its costs. LUVAN UD /0972024 Judgment delivered in^^^sen of Mr. Hamisi Athumani Mbangwa learned Counsel for Respondent and in t absence of the Appellant. 11