george badaga vs saada ally kawiza 2022 tzhclandd 12605 30 november 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPEAL NO. 110 OF 2021 (Arising from Temeke District Land & Housing Tribunal in Land Appeal No. 01 of 2015: Originating from Somangila Ward Tribunal) GEORGE BADAGA APPELLANT VERSUS SAAD ALLY KAWIZA (As Administrator of the Estate of the Late Pill YUSUF KAWIZA) RESPONDENT Date of Last Order; 26.10.2022 Date of Judgment; 30.11.2022 JUDGMENT V.L. MAKANI. J. This appeal Is by GEORGE BADAGA. He Is appealing against the decision of Temeke District Land and Housing Tribunal (the District Tribunal) In Land Appeal No. 01 of 2015 (Hon. R. Mwaklbuja, Chairperson). The case originated from Somangila Ward Tribunal In Civil Case No. 56 of 2015 (the Ward Tribunal) When the matter came for hearing of the appeal the court was Informed that the respondent Pill Kawiza passed away on 25/11/2021 and Saad Ally Kawiza the respondent's son was appointed as Administrator of her estate. The court on 07/09/2022 ordered that the name of the respondent be replaced with that of her administrator (as hereinabove appearing) in aii subsequent documents of the court. Though the submissions filed in court do not reflect as such, but the court takes it as an oversight and proceeds with the judgment in the names and references as ordered by the court, that is, the respondent's name reads as SAAD ALLY KAWIZA (as administrator of the estate of the late PILIYUSUFU KAWIZA). The appellant was dissatisfied with the decision of the District Tribunal and has filed this appeal with grounds as reproduced herein below: 1. That the Hon. Chairperson grossly erred in iaw and fact for failing to put into consideration that the respondent failed to caii the material witness whom the respondent claimed to witness the execution ofsaie agreement of the suit property. 2. That the Hon. Chairperson erred in iaw and fact for failing to put into consideration that the appellant was sued by the respondent in 2014 at Somangiia Ward Tribunal while the appellant was not yet appointed as administrator of the estate of the deceased Lucas Badaga. 3. That the Hon. Chairperson erred in iaw and fact to hoid that the respondent used the suit iand from 2002 peaceful while no evidence adduced by the respondent to proofher iong use the suit iand(sic!). 4. That the Hon. Chairperson erred in iaw and fact for holding the matter in favour ofthe respondent by basing on the saie agreement while the respondent failed to give proper evidence proving that the deceased Lucas Badaga executed the same agreement to disposal(sic!) the suitiand to the respondent. 5. That the Hon. Chairperson generally erred in iaw and facts for failure to consider the composition ofthe Ward was contrary to the iaw regulating the Ward Tribunal in determination ofthe iand dispute. 6. That the Hon. Chairperson erred in iaw and fact for failure to consider that the decision ofthe Ward Tribunal reiied on the saie agreement which was fabricated. 7. That the Hon. Chairperson generally erred in iaw and facts for failure to read out to the parties at the Tribunal and assets and show in theJudgment the opinion ofthe assessors of which made her to concur with them. The appellant prayed for the appeal to be upheld and the decision of the Tribunals be quashed and set aside, and he be declared the owner of the suit land. He also prayed for costs of the appeal. With leave of the court the appeal was argued by way of written submissions. The applicant adopted the grounds of appeal as part of his submissions. He abandoned the 5'*^ and T'" grounds and argued the 4*'^ and 6"^ grounds together and the remaining grounds, that is, the 2"=" and 3'^'' grounds separateiy. As for the 1=' ground the appellant submitted that the Chairperson erred as he did not consider that the respondent failed to call the material witness. He said who alleges must prove but according to the judgment of the Ward Tribunai the respondent(then the applicant in the Ward Tribunal) did not bring any witness who witnessed the Sale Agreement as was stated in the judgment that the sale was administered by the leaders of the hamlet of Mwanzo Mgumu. He said there was no Chairperson or Ten Cell leader who was called to testify. He said the respondent failed to prove the case in the Ward Tribunal and the Chairperson in the District Tribunal did not put into account the anomaly which he said was very important for the administration of justice. He relied on the case of Hemed Saidi vs. Mohamed Mbilu [1984]TLR 113 where the court said for undisclosed reason a party fails to call a material witness the court is entitled to draw an inference that if the witness were called they would have given evidence contrary to the party's interest. As for the 2"'' ground the applicant submitted that the respondent sued the appellant while he was aware that the appellant's father was the owner of the suit land and he had passed away. He said this issue was raised at the Ward Tribunal, but the Tribunal proceeded to entertain the matter without the administrator of the estate Lucas Badaga. As for the 3'''' ground the appellant argued that there Is nowhere in the judgment of the Ward Tribunal that shows the respondent was using the suit land peacefully from 2002. He said there was no I neighbour who was called to prove this fact. Regarding the 4'^' and 6^^ grounds the appellant said there were two persons who witnessed the Sale Agreement, Hajl Mazengo and All Abdala but in the judgment of the Ward Tribunal these two people were not called as witnesses to testify as to the genuineness of the Sale Agreement. He said the Sale Agreement tendered Is questionable because the witnesses are not mentioned, that is, whether they are for the seller or the buyer. He concluded by saying that the trial Tribunal erred both In law and fact to rule that the respondent is the lawful owner of the suit land and even state that the respondent had been using the said land since from 2002 to 2014 something which lacks evidence. He prayed for the court to uphold the appeal and quash and set aside the decision of the trial Tribunal with costs. Mr. Twarah Yusuf drew and filed submissions in reply on behalf of the respondent. As for the 1=^ ground Mr. Twarah said the case of Hemedi Said (supra) and section 110 of the Evidence Act were adhered to by the respondent then Piii Kawiza proving her case by submitting exhibits and giving testimony and she aiso caiied one witness. He said the respondent was not bound to bring a fixed number of witnesses as one witness is aiso sufficient in terms of section 143 of the Evidence Act. He said in measuring the weight of evidence the number of witnesses does not matter but the quaiity of the evidence as was in the case of Tukwaya Sabwifa vs. Upendo Mwasengo, Misc. Land Appeal No. 11 of 2021 (HC-Mbeya) (unreported). He further pointed out that the evidence of the respondent was heavier than that of the appeiiant as was held in Homed Saidi (supra) that a person whose evidence is heavier than that of the other is the one who must win. He said it is not automatic that the court would draw adverse inference when a witness is not caiied, but it has to be supported/justified with other evidence before the court. He said drawing adverse inference is the discretion of the court and before doing so there are conditions to be fulfiiied as was explained in the case of Ahuja Investments Limited vs. Victorygame Limited [2021] EWHC 2382(Ch). Mr. Twarah went on saying that it is the appeiiant who has aiieged that the Saie Agreement has probiems, so he had the obiigation to bring documents or testimony to the contrary. He said there are aiiegations of forgery, but he has not stated how the documents were forged and has not shown the forgery itseif. He said there is no pending criminal case of forgery either. He cautioned that the court shouid not act on a mere statement of forgery. He aiso said the witnesses to the saie agreement could not be found because, Haji Mazengo had moved to Dodoma, as for Aii Abdaiia his whereabouts were not known and Mkunga, the village Chairman had died a long time ago and it was a fact known in the village. As for the Z"'' ground, Mr. Twarah said the appellant was sued as an invader in the suit land and not as an administrator. He said there were other invaders who left but the appeiiant insisted to be the owner of the suit land hence the respondent decided to sue him. He said the appellant was the wrong doer and further that there was no dispute between the respondent and Lucas Badaga. He said the appeiiant was sued in his personal capacity as an invader in the suit land. Mr. Twarah submitting on the 3'''' ground said the respondent and her witnesses through their testimonies toid the Ward Tribunai about her possession and usage of the suit iand a fact which was not disputed by the appeliant. He said the respondent was using the suit iand for farming from when it was purchased until it was trespassed by family members including the appellant. He said the testimony of ownership and possession was supported by the Sale Agreement. He said the appellant had the burden of proving that the late Piii Kawiza was not the owner of the suit iand according to section 119 of the Evidence Act. As for the 4"^ and 6"^ grounds, Mr. Twarah submitted that it is not true that the Sale Agreement was forged/fabricated. He said the respondent tendered an agreement and the appellant also tendered an agreement, but he was not a party to the said agreement that he tendered, and the purported person who bought the said iand did not come to testify so there was no witness to support the appellant's story. There was also the issue of signature, which according to Counsel it was not raised at the Ward Tribunai. As for the witnesses in the Sale Agreement, Mr. Twarah said there is no law which requires the witnesses to be stated for the buyer or seller and the appellant did not support his argument with the iaw. For the reasons submitted, Mr, Twarah prayed for the appeai to be dismissed with costs for iack of merit. The appeiiant did not fiie any rejoinder. I have gone through the submissions by the parties herein. The main issue for consideration is whether this appeai has merit. I wiii be guided with the principle that this being a second appellate court is not expected to disturb the concurrent findings unless there is a misdirection or none direction on the evidence and the relevant law (see The DPP vs. Jafari Mfaume[1981]TLR 149). The appeiiant in the ground of appeal submitted that the Chairperson erred as he did not.consider that the respondent failed to call the material witness. In my view this ground has no merit because the obligation to call witnesses lies with the parties in the suit. As stated by Mr. Twarah the number of witnesses is not crucial but the reliability of the evidence and credibility of the witness even if it was one witness. In the case of Waiki Amiri vs Republic, Criminal Appeal No 230 of 2006(CAT-Tanga)(unreported) the Cou rt of Appea I stated: "It is not the number of witnesses brought to testify which matters but rather, it is the credibility and reiiabiiitv ofthe evidence which matters. It was the right ofthe prosecution to call witnesses who were important for proving their case". In this present case at the Ward Tribunal the late PHI Kawlza and her witness Omar Halfan gave evidence and tendered exhibits Including a Sale Agreements. The appellant did not have anything strong to controvert on the Sale Agreement save that It was a forgery which fact they could not prove. This ground therefore has no merit. In the 2""' ground the appellant Is complaining that the late PHI Kawlza sued him Instead of the administrator of the estate of his late father. The appellant said the late PHI Kawlza knew that his father was the owner of the suit land and he had passed away, so he was supposed to sue the administrator. I agree with Mr. Twarah that the appellant was the one who Invaded the suit land, therefore the late PHI Kawlza did not have anything to do with the appellant's late father and that Is why the appellant was sued In his own capacity. In any case, the Ward Tribunal only pointed out that the administrator of the late Lucas Badaga If any ought to have Instituted a claim If at all the suit 10 land was among the properties in the estate of the late Lucas Badaga. The Issue that the late Pill Kawlza sued the appellant Instead of the administrator was not raised and decided upon at the Ward or District Tribunal, and thus it Is not proper to raise It now at this second appeal. It is settled law that as a matter of general principle the court will only look at matters which came up and were determined at the lower court and not new matters (see the case of Hotel Travertine & 2 Others vs. NBC[2006]TLR 133 and Hassan Bundala @Swaga vs. Republic, Criminai Appeal No. 386 of 2015 (CAT-Bukoba (unreported). since the matter was not raised in the lower Tribunals It cannot be entertained at this stage. This ground too has no merit. As for the ground the appellant Is complaining that there is nowhere in the judgment of the Ward Tribunal that shows the late Pill Kawiza was using the suit land peacefully from 2002. He said there was no neighbour who was called to prove this fact. I have gone through the proceedings of the Ward Tribunal and the testimony of the late PHI Yusuf Kawlza reflects that she bought the suit land in 2002. And the witness Omar Halfan said he was the one, who connected the late Pill Kawiza with the appellant's father through I Kuchimba, his brother-in-law. The judgment also states this fact and 11 went further to observe that the claims by the children of the late Lucas Badaga Including the appeilant are baseiess as they remained silent for more than 12 years without claiming the aiieged suit land from the relevant authorities. The fact that there were no problems/claims from anybody from when the late Pill Yusuf Kawiza bought the suit iand it means she peacefuliy enjoyed the ownership after the purchase of the suit land In 2002. As for the 4'^ and 6'*^ grounds of appeal I also find the complaint by the appellant to have no merit. The appeilant who alleged that the Sale Agreement was a forgery was supposed to prove that indeed the genuineness of the agreement was wanting. Instead to counter the said agreement he tendered another Saie Agreement which he was not a party nor his father and the buyer in the said agreement did not come to testify in support of the said Sale Agreement. The Sale Agreement by the late PHI Yusuf Kawiza carries more weight because it reflects that it was executed by herself and before the local leaders, and the rubber stamp of Mwanzo Mgumu hamlet is cieariy visible. The agreement is in the standard form of the hamiet so the issue that the witnesses are not separated, that is, witnesses for the buyers and 12 sellers is Irrelevant as long as witnesses were present during the execution of the agreement. For the reasons above, I don't find fault In the decisions of the Ward and District Tribunals. The appeal Is hereby dismissed for want of merit. There shall be no order for costs considering that the appeal was filed under Legal Aid. It Is so ordered. a OB V.L. MAKANI c C5 % JUDGE I 30/11/2022 ★ IAt) DIV\ 13