GIPSON S

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI LAND APPEAL NO. 8104 OF 2024 (Originating from Land Application No. 114 of 2014 of the District Land and Housing Tribunal for Moshi at Moshi) GIPSON S. KISANGA (As administrator of the estate of the late Gerson Kisanga) ……………...……................................ APPELLANT VERSUS ATRISIANA KARISIA ….………………...…………... RESPONDENT JUDGMENT 21/08/2024 & 26/08/2024 SIMFUKWE, J. The appellant herein unsuccessfully sued the respondent herein before the District Land and Housing Tribunal of Moshi (Trial Tribunal) claiming inter alia that the respondent had trespassed into the disputed land described as Plot No. 52, Block K at Shaurimoyo, Majengo Ward within Moshi Municipal in Kilimanjaro Region. 1 The appellant stated before the trial tribunal that he is the administrator of the estate of the late Gerson Kisanga who passed away on 22/11/1997. That, the deceased was a lawful owner of the disputed land as it was registered in his name. In 2015, the respondent who was an invitee to the disputed land alleged that the disputed land was her property. An attempt to evict the respondent from the suit land proved futile, hence, the appellant had to institute a dispute before the trial tribunal. The appellant implored the trial tribunal to declare the deceased Gerson Kisanga as the lawful owner of the suit land. It was also prayed that the respondent be evicted from the suit land. On part of the respondent, it was asserted that the disputed land was given to her in 1991 by the late Gerson Makara (Gerson Kisanga), who was her father-in-law). It was stated that by then the disputed land had no building and the respondent commenced to construct one room, later the rooms were increased to five. SU1 the son in law of the respondent and SU2 the son of the respondent gave their testimonies to that effect. The trial tribunal found the respondent as the lawful owner of the suit land. Evidence of SM1 and SM2 was found to be contradictory as SM1 stated that the first house at the suit land was constructed by Elizabeth 2 Gerson Kisanga and the second house was built by the respondent. At the same time, SM2 testified that the disputed house was constructed by the deceased Gerson Kisanga. Being dissatisfied with the decision of the trial tribunal, the appellant herein appealed to this court on the following grounds: 1. That, the Tribunal grossly erred in law and fact in holding that the Respondent is the lawful owner of the suit land. 2. That, the Tribunal grossly erred in law and fact in failing to properly evaluate the evidence adduced at the trial and instead chose to gloss over it to justify the decision reached. The appellant prayed that this appeal be allowed and the decision of the trial tribunal be quashed and set aside with costs. The hearing of the appeal was conducted by way of written submissions. Mr. Martin Kilasara learned counsel argued the appeal for the appellant while the respondent had no representation. On the first ground of appeal that the trial tribunal grossly erred in law and fact to hold that the respondent is the lawful owner of the suit land; Mr. Kilasara submitted among other things that the Land Officer Veronica Kisaka who testified as PW4 clearly testified that the late Gerson Kisanga 3 applied and was successfully registered as the lawful owner of the suit property. The land rent receipts were tendered and admitted collectively as exhibit P2. Whereas the letter offers dated 04/10/1980, 05/11/1980 and the Right of Occupancy dated 05/11/1980 were all tendered and admitted collectively as exhibit P3(i), (ii) and (iii). The learned counsel submitted further that, according to PW4, ownership of the disputed land has never been revoked or at all altered to date. He lamented that, the vital piece of evidence was never traversed at the trial or by the respondent. Mr. Kilasara buttressed his argument by referring the case of Salum Mateyo v. Mohamed Mateyo [1987] TLR 111, at page 112 where His Lordship Mrosso J (as he then was) held that: “It seems to me clear that in law, the appellant in whose name the suit property was registered was the owner. I am fortified in this view by section 2 of the Land Registration Ordinance, Cap 334 which defines “owner” in relation to any estate or interest as the person for the time being in whose name the estate or interest is registered.” Moreover, Mr. Kilasara cited the case of Athumani Amiri v. Hamza Amiri and Adia Amiri, Civil Appeal No. 8 of 2020, Court of Appeal of Tanzania at Arusha at page 14 (tanzlii). 4 It was emphasized that in absence of any documentary evidence such as transfer deed and or deed of gift et cetera, signifying transfer and or disposition of the suit property in favour of the respondent herein; the purported allegation and or tribunal’s finding that the suit property was duly and absolutely allocated to the respondent is indeed unfounded and grossly misconceived. Further reference was made to the case of Deemay Daat and Two Others v. Republic [2005] TLR 132 in which it was stated that: “It is common knowledge that where there is misdirection and non- direction on the evidence, or the lower court has misapprehended the substance, the nature and the quality of the evidence, an appellate court is entitled to look at the evidence and make its own findings of fact.” Mr. Kilasara implored this court to quash such erroneous findings of the trial tribunal. Supporting the second ground of appeal, the learned counsel for the appellant submitted that PW2 Faudhilista Gerson Kisanga clearly testified that the suit property was partly developed by her late father Gerson Kisanga and her sister Elizabeth. That, it is on record that the respondent 5 was invited to use and look after the suit property. That, her brother and the respondent were for all purposes and intent mere caretakers of that house with usufructuary rights. The dispute arose when the respondent refused to give vacant possession thereof. It was alleged that those material facts were corroborated by PW1 and PW3 and no reason was assigned by the trial chairman for disbelieving or distinguishing that evidence. The learned counsel cemented his argument by subscribing to the case of Kulwa Kabizi, Paulo Sindano Balele & Suleiman Mlela v. Republic [1994] TLR 210 in which it was held that: “Where the trial court wrongly rejects certain evidence, it is the duty of the appellate court to arrive at its conclusion upon a consideration of the whole of the evidence properly admissible and available on record.” Mr. Kilasara captured from the trial record that the respondent or her legal representative never testified in court on how and when she acquired the suit land. DW1 Emily Lyamuya who purported to had assisted the respondent to develop part of the suit property, he admitted that the respondent was invited by the late Gerson Kisanga and Elizabeth Gerson 6 to develop part of the suit land and reside therein. When cross examined, DW1 stated that he never witnessed any transfer or allocation in favour of the respondent. That, DW2 Reginald Ronald reiterated what was said by DW1. Mr. Kilasara sought aspiration from the case of Michael v. Msario (1971) HCD 17 which held that: “Prolonged tenancy does not confer title to land.” Another inspiration was sought from the case of Swalehe v. Salim (1972) HCD 140 which observed that: “…this court has consistently held, no invitee can exclude his host whatever the length of his occupancy.” Also, Mr. Kilasara cited the case of Samson Mwambene v. Edson James Mwanyingili [2001] TLR 1 which held that: “The appellant was invitee ex gratia of James on the land in dispute. As this court has consistently held no invitee can exclude his host whatever the length of his occupation.” In our case, it was insisted that, the respondent having been invited by the owner, cannot purport to assume ownership thereof and or extinguish the rights of her host. That, there was ample and credible evidence showing that the respondent was a mere invitee and caretaker of the suit property. Mr. Kilasara was of the view that the trial tribunal failed to grasp 7 the substance of the evidence adduced before it, the applicable laws and precedents. He supported his observation with the case of Stanslaus R. Kasusura and A.G v. Phares Kabuye [1982] T.L.R 338 in which it was held that: “The trial judge should have evaluated the evidence of each of the witnesses, assessed their credibility and made a finding on the contested facts in issue. The judgment is fatally defective; it leaves contested material issues of fact unresolved. It is not really a judgment which can be upheld or upset. It can only be rejected. We think that the only course we can adopt is the unusual one of setting aside the judgment of the High Court.” The learned counsel for the appellant urged this court to re-evaluate the evidence on record and make its own finding as it was held in the case of Ndizu Ngasa v. Masisa Magasha [1999] T.L.R 202 In his conclusion, Mr. Kilasara was of the opinion that this appeal has merit which deserves to be considered and allowed. Contesting the appeal, on the first ground, the appellant conceded that the title deed of the disputed land is still in the names of the late Gerson Kisanga. However, she contended that his father-in-law gave the suit 8 property to her in 1990 while it was undeveloped. She added that, it was through her efforts that she was able to develop the suit property by building one roomed house with the support from her brother. It was stated that, the respondent continued to develop the suit property with further support from one Elizabeth Gerson Kisanga. The respondent clarified that the developments were done during the life time of the late Gerson Kisanga who witnessed all the developments without any claim. The respondent being the wife of Hiram Gerson Kisanga the son of the late Gerson Kisanga, lived at the suit property as their matrimonial home and no claims were made by the appellant. The respondent emphasized that the trial tribunal did not err in law and fact in its holding which was done after evaluation of evidence of both parties. Hence, it was prayed that the appeal be dismissed for lack of merit. On the second ground of appeal, the respondent supported the findings of the trial tribunal that evidence of PW1 and PW2 was contradictory, inconsistent and therefore bad in law. She cited the case of Mohamed Said Matula v. Republic [1995] TLR 3 which stated as follows: 9 “The Court has to decide whether the inconsistence and contradictions are only minor or whether they go to the root of the matter.” It was the opinion of the respondent that the contradictory evidence of PW1 and PW2 goes to the root of this case as it does not support ownership of the appellant at all. The respondent submitted further that there was no formal evidence showing legal relationship of inviter and invitee. She maintained that she cannot give vacant possession of her property which was granted to her by the late Gerson Kisanga. Further, she stated that the tribunal properly directed itself on the evidence of both parties before arriving at conclusion. Replying the allegation that neither the respondent in person nor her legal representative testified in court; the respondent submitted that the allegation is baseless which lacks merit since what is required under the law is the weight of evidence and not the type of witness or number of witnesses who testify in court. She cited section 143 of the Evidence Act, Cap 6 R.E 2022 to support her argument. 10 On the issue of prolonged tenancy; the respondent responded that she has never been a tenant nor invitee as submitted by the appellant. It was added that there was no tenancy agreement between the respondent and the late Gerson Kisanga to establish Land Lord- Tenant relationship. In conclusion, the respondent reiterated that the tribunal properly made a decision which declared the respondent as the lawful owner of the suit property. Hence, this appeal be dismissed with costs. In his rejoinder, Mr. Kilasara stated inter alia that the respondent in her reply submission at page one concedes that the late Gerson Kisanga is still the lawful registered owner of the suit property to date. That, the respondent also concedes that she did not solely develop the suit property as it was developed by the late Gerson Kisanga and his daughter Elizabeth Kisanga. The learned counsel criticized the assertion of the respondent that the suit property was her matrimonial home together with her husband Hiram Kisanga and no claims were raised. Hence, the tribunal was justified to hold that the respondent is the lawful owner. It was explained by the learned counsel for the appellant that it is undisputed that there was no shred of evidence be it oral or documentary to prove that ownership of the suit property was ever absolutely 11 transferred from the late Gerson Kisanga to either Hiram Gerson Kisanga or the respondent herein. Mr. Kirasara reiterated his submission in chief and stressed that the purported allegation and finding of the trial tribunal that the suit property was duly and absolutely allocated to the respondent is unfounded and grossly misconceived. He suggested that the finding of the trial tribunal ought to be quashed and set aside for being a gross misdirection. On the second ground, the learned counsel for the appellant reiterated his submission in chief and added the cases of Paulo Antony v. Republic, Criminal Appeal No. 189 of 2014, Court of Appeal of Tanzania at Bukoba, at page 6 and Martin Misara v. Republic, Criminal Appeal No. 428 of 2016, Court of Appeal of Tanzania at Mbeya, at page 8, to support his rejoinder. I have gone through the grounds of appeal, the trial tribunal’s record and the parties’ submissions, the issue for determination is whether the two grounds of appeal have merit. For the sake of flow, I wish to start with the second ground, whether the trial tribunal properly evaluated evidence adduced at the trial. The parties had different opinions on this issue. The respondent believed that the trial tribunal properly evaluated evidence while the learned counsel for the 12 appellant was of the opinion that the trial tribunal glossed over adduced evidence. Page 5 and 6 of the judgment of the trial tribunal speak volumes in respect of consideration of adduced evidence. The learned trial Chairman discussed the first raised issue (who is the lawful owner of the disputed land?) by referring evidence of both parties. On the outset, he noted that it was undisputed fact that the disputed land was previously owned by the late Gerson Kisanga. Thereafter, he examined evidence of each side by mentioning witnesses specifically and identifying weakness and strength of each particular evidence he was referring to. However, as correctly submitted by Mr. Kilasara, the trial tribunal failed to grasp the substance of the evidence adduced before it, applicable laws and precedents. It is obvious that there was misdirection and misapprehension of the adduce evidence, applicable law and precedents. Thus, the first ground of appeal has merit. Back to the first ground of appeal whether the trial tribunal erred to hold that the respondent is the lawful owner of the suit land; in the first place, from the evidence on record and submission of both parties, the first ground of appeal may be rephrased like this: Whether disposition of registered land may be done orally. Section 61(1) of the Land Act, Cap 113 R.E 2022 provides that: 13 “61. -(1) No right of occupancy, lease or mortgage shall be capable of being disposed of or dealt with except in accordance with this Act, and any attempt to dispose of any right of occupancy, lease or mortgage otherwise than in accordance with this Act, shall be ineffectual to create, extinguish, transfer, vary or affect any right or interest in land, or in the right of occupancy, lease or mortgage.” Emphasis supplied Section 64(1) (a), (b) and (2) of the Land Act, (supra) provides that: “64. -(1) A contract for the disposition of a right of occupancy or any derivative right in it or a mortgage is enforceable in a proceeding only if- (a) the contract is in writing or there is a written memorandum of its terms; (b) the contract or the written memorandum is signed by the party against whom the contract is ought to be enforced. (2) A contract for a disposition referred to in subsection (1) may be made using a prescribed form.” Emphasis added 14 In our case, according to what was stated by both parties, there is no written agreement which transferred the right of occupancy from the late Gerson Kisanga to the respondent herein. From the dictates of law under section 61 (1) of the Land Act (supra) in absence of any document in that regard, the disposition/transfer of ownership of the suit land from the late Gerson Kisanga to the respondent herein is ineffectual to transfer any right or interest in land. Transfer of right of occupancy was also discussed in the case of Registered Trustees of Holy Spirit Sisters Tanzania v. January Kamili Shayo and 136 Others, Civil Appeal No. 193 of 2016 [2018] TZCA 32 (21 August 2018) at page 19 last paragraph to page 20, where it was held that: “There is, in this regard, a long line of authority to the effect that an oral and unapproved agreement for the disposition of land held under a Right of Occupancy such as the one relied upon by the respondents, is inoperative and of no effect. If we may just cite a few, in Patterson and 19 anothers v Kanji (1956) E.A.C.A. 106, dealing with a similar regulation, the defunct Court of Appeal for Eastern Africa stated that one cannot seek "to enforce 15 at law which he can only establish by relying on a transaction declared by law to be inoperative." On the strength of the cited authorities, the respondent cannot be a lawful owner of the suit land without there being a written transfer of the right of occupancy to that effect. Therefore, I find the first ground of appeal has merit. Consequently, I hereby quash and set aside the decision of the trial tribunal. Appeal allowed without costs. It is so ordered. Dated and delivered at Moshi this 26th day of August 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 26/08/2024 16