godlisen frank lema vs robert marco shila 2023 tzhc 19300 22 may 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MOROGORO DISTRICT REGISTRY) AT MOROGORO LAND APPEAL NO. 81 OF 2022 (Arising from the decision ofthe District Land and Housing Tribunal of Morogoro in Land Appeal No. 130 of2018, Originating from Land Dispute No. 70 of2017, Lukobe Ward Tribunal) GODLISEN FRENK LEMA APPELLANT VERSUS ROBERT MARCO SHILA RESPONDENT JUDGEMENT Last Court Order: 02/05/2023 Judgment dater on:22/05/2023 NGWEMBE,J. This is a second bit of appeal arising from the District Land and Housing Tribunal for Morogoro (Appellate tribunal), which quashed the decision of Lukobe Ward Tribunal (Trial Tribunal) and made orders in the respondent's favour. The genesis of this appeal traces back to the complaint of the respondent against the appellant in respect to a piece of land measuring 38 X 34 paces located at Tushikamane street, Lukobe Ward in Morogoro Municipality. He claimed to have acquired the suit land in year 2007 by purchase from one Omary Mwinyimvua at a price of TZS 300,000/=. That he proceeded to develop it, until year 2011 when he found some poles placed in circumference of his plot. Upon asking his custodian one Challu, he was informed that, some people who introduced themselves as the respondent's relatives sold it to someone else claiming that, the Page 1 of 16 respondent was dead. It seems in the course he met the appellant who also claimed ownership over the same piece of land. Before the trial tribunal, the appellant denied the claim stating that, he bought such piece of land in year 2011 from one Juma Segumba, the area being 30 x 20 paces. Added that the demarcations were clearly identified, the plot was neighbouring with the respondent's plot, which by that time was being developed. Witnesses for each side were summoned and it seems the trial tribunal visited locus in quo and found that, the land in dispute is the same plot, which both parties claimed ownership. When it sat for decision, it came with the finding that, both parties proved their respective acquisition of land to the effect that, each party proved to have purchased the same plot of land. Thus, each party was entitled to that piece of land. Significant part of its decision is reproduced hereunder in Kiswahili language as was so written: - ''Baraza Unatoa maamuzi kuwa wote wawHi(2) wamlliki haiaii kwa kugawiwa kiwanja nusu kwa nusu kwenye eneo hUo kwa kiia mtu na wamwone mwenyekiti wa serikaii ya mtaa wa Tushikamane awape kwa kiia mtu nyaraka yake'' In the quoted paragraph, the tribunal meant that both parties were entitled to the disputed land, hence it was to be divided equally to the disputants by the Street Chairman and documents of ownership were to be issued separately to each party. The respondent was aggrieved by that decision, so he appealed to the appellate tribunal grounded with four grievances, which essentially questioned the evidential value tabled by the opponent. I think the appellate tribunal, rightly dealt with them jointly. In its decision, the appellate tribunal observed that, the appellant had failed to establish root of title as he did not call Shabani Ramadhani Omar who said to Page 2 of 16 have sold the suit land to Juma Segumba on 03/07/2010. Shaban Ramadhan Omar sold it to Juma Segumba while same land was already in the ownership of the respondent. Further observed, the respondent brought the seller one Omar Mwinyimvua who sold the suit land to him In year 2007. As such the tribunal proceeded to allow the appeal with costs and ordered vacant possession of the appellant. Displeased as expected, the appellant exercised his rights of appeal by appealing to this house of justice. The grounds of appeal are as follows: - 1) That the District Land and Housing Tribunal erred in law for failure to address grounds of appeal and basing its judgment on mysterious and general ground(s) where parties were unheard. 2) That the District Land and Housing Tribunal erred in law and fact for condemning the respondent and holding that he failed to summon the seller while in fact the seller appeared and testified before the trial ward tribunal. 3) That the District Land and Housing Tribunal erred in law and in fact for failure to properly revaluate the evidence tendered at the trial ward tribunal. On the hearing of this appeal, Mr. Ignas Punge, learned advocate represented the appellant and the respondent had the good services of advocate Gabriel Kitungutu. This court on 02/05/2023 ordered parties to address the appeal through written submissions on the schedule that the appellant's submission, be filed on or before 04/05/2023, reply submission by 08/05/2023 and rejoinder submission on 10/05/2023. Judgment was scheduled to be pronounced on 15/05/2023. I understand that the appellant's rejoinder was filed on 12^^ May 2023 instead of the scheduled date of 10^^ May. The appellant's advocate has pointed in the first paragraph of the rejoinder submission Page 3 of 16 that, the copy of respondent's submission was served to him on the 10^^ day of May 2023, that is the last day of filing his rejoinder submission. This court is aware of the general rule in case of failure to file written submission in time. On the other hand, the need to determine the matter conclusively in cases like this outweighs the strict adherence to the rules. In the case of Leila Yange Vs. Rahma Mabrouk (Probate Appeal 11 of 2022) [2023] TZHC 16814 the Court having considered the circumstance of the case, observed and held that: - ''The invocation of the ruie on deiayed fiiing as applied in Haleko Vs. Harry Mwasaijaia needs some input ofjurisprudence and legal reasoning. Without prejudice to the body ofthat ruie, this court therefore holds a view that its application should be subjected to the tests of each case as it was so decided in the case of Tanzania Venture Capital Fund Limited Vs. Igonga Farm Limited(supray In respect of this appeal, I have considered that the appellant's failure to file rejoinder submission timely was due to the alleged failure of the respondent to furnish him with his written submission. Therefore, for the interest of justice, I condone the delay and let the rejoinder submission be considered in determination of this appeal. Such pardon is not without insistence to obedience of court scheduling orders. Supporting the appeal, Mr. Punge made very specific submissions. For the first ground he argued that the chairman without any reason abdicated from his duty to determine the grounds raised by the respondent and instead composed a general judgment on unsubstantiated facts which, in the counsel's theme, were mysterious. Supported his argument by the cases of Kukai Properties Development Ltd Vs. Maloo and Others [1990-1994] EA 281 and Sheikh Ahmed Said Vs. The Registered Trustees of Manyema Paj^e 4 of 16 Masjid [2005] TLR. 61. Rightly observed that, each ground must be determined properly, failure of which constitutes serious breach of legal procedure. On the second ground, the learned counsel lamented bitterly on the appellate tribunal for wrongful condemnation of the appellant for failure to summon the seller, while Mr. Segumba who sold the land appeared and testified. To him, the appellant's evidence deserved consideration and belief as per Goodluck Kyando Vs. R [2006] T.L.R. 363. Arguing on the third ground, the learned advocate submitted that, the chairperson was bound to make critical analysis on the evidence before the trial tribunal, which he failed to perform. Rested by a prayer that the appeal be allowed with costs. Mr. Kitungutu, in his reply submission started by arguing on the preliminary objection, which he claims was raised in the reply to petition of appeal. The objection is that, the appeal is time barred as same was filed 112 days after the appellate tribunal's judgment in disobedience of section 38(1) of The Land Disputes Courts Act, Cap 216 R.E 2019. He specifically pointed out thai, the said judgment was delivered on 01/02/2022 and the appellant filed this appeal on 23/05/2022. Therefore, prayed the appeal be dismissed with costs. As an alternative, he proceeded to reply to the submissions of the appellant seriatim. He discredited Mr. Punge's allegation in ground one as unfounded. Equally the precedents cited therein as distinguishable and out of context. He explained that, those precedents insisted on the issues raised during trial, while in this appeal it is about grounds of appeal. It was his submission that the appellate chairperson determined the grounds, but jointly as it was shown at page 3 where the Paye 5 cf16 Chairperson acknowledged that the appellant raised four grounds whose nature deserved joint determination. Arguing on the second (2) ground, the learned counsel reviewed the testimonies of the appellant and the seller Juma Segumba. Further pointed that, while the appellant testified that, he purchased the land from Segumba, the latter testified before the trial tribunal that, he bought the land from one Shabani Ramadhani Omar. He clarified that Shabani Ramadhani Omar is the seller that the tribunal referred to. That the appellant's ownership depended on Juma Segumba's title, who did not prove it for he did not suinmon the original owner. To him, the appellate tribunal was correct in its decision in respect of Shabani Ramadhani Omar for failure to call him to appear and testify as a witness. Advancing to the last ground, he argued that, the assertion that the appellate tribunal did not properly evaluate the evidence was incorrect. Concurring to the basic principle on the burden and standard of proof in civil cases, Mr. KitunyuLu argued that, the respondent proved his case to the balance of probability. Having rested his arguments, prayed this appeal be diSi i iisseJ widi l^^As. In rejoinder, the appellant's aa^ocate addressed the issue of time limitation, which would seem to be a new surfacing by the respondent. He pointed out the correct position of the law as of today, that a person is not required to apply for CAiei isloi t )f time to appeal if by excluding time spent for securing copies of judgment is within time. He cited the decision of this court in the case of Fred Jonasi Gondwe Vs. Uswege Msika, Misc. Land Application No. 58 of 2019, which upheld the position of an automatic exclusion of the time spent in securing copies of judgment. PnH.e C of 16 Having exhausted the background of this appeal along with parties' submissions, I will now turn to determine the merits of the appeal itself by considering all grounds of appeal seriatim. In determination of this appeal, I have taken keen interest to a number of long-established principles of law, which will stand as a guiding position to this court. For convenience purposes, each principle has been placed at a relevant part. Prior to considering the grounds of appeal, I find prudent to determine first the issue of time limit as argued by both parties. At the onset, I admit that all facts pointed by Mr. KItungutu on the date which impugned judgment was issued and filing of this appeal are true. Even the appellant did not dispute them. I also accept statement of the law that time prescribed in the appeal of this nature is sixty (60) days as per section 31 of The Land Disputes Courts Act and that reckoning from the date of delivery of the judgment, that is, on 01/02/2023, the appellant was, as on 23'^'^ May 2022 out of time for more than 50 days. However, I am not at one with Mr. Kitungutu on the proper formula of reckoning time limitation for appeal. On this, Mr. Punge's submission is the correct position of law; that under section 19 (2) of the Law of Limitation Act, Cap 89, R.E 2022, computation of time limitation should start on the day when copies of judgment were ready for collection and that, such time spent in making follow up is automatically excluded. Admittedly, this court in Fred Jonasi Gonde Vs. Uswege Msika and many other cases have followed this rule. Rightly so, the Court of Appeal in numerous decisions, made the same conclusion, including in the cases of The Registered Trustees of The Marian Faith Healing Centre @ Wanamaombi Vs. The Registered Trustees of The Catholic Church Sumbawanga Diocese, Civil Appeal No. 64 of 2006(CAT); Valerie McGivern Vs. Page 7 of 16 Salim Farkrudin Bala^ Civil Appeal No. 386 of 2019 and Alex Senkoro & Others Vs. Eliambuya Lyimo [2021] TZCA 104. In Alex Senkoro, much similar to others held inter alia - 'We entertain no doubt that the above sub-sections expressiy aiiow automatic exclusion of the period of time requisite for obtaining a copy ofthe decree orjudgment appealed from the computation of the prescribed iimitation period. Such an exclusion need not be made upon an order ofthe court in a forma! application for extension of time. Indeed^ that stance was taken recently in Mohamed Saiimini v. Jumanne Omary Mapesa, Civil Appeal No. 345 of 2018 (unreported) where the Court affirmed that section 19 (2) of the LLA obliges courts to exclude the period of time requisite for obtaining a copy of the decree appealed from." In this case, the Impugned judgment was delivered on 01/02/2022, but copies therefrom were available for collection on 25/03/2022. By following the above discussed method, the appellant's appeal was therefore, filed on the 58^^ day of the time given for appeal. It was therefore within time for two days more. The objection therefore, even if it would be raised expressly, yet same would be overruled as I hereby do. Conclusively, the objection based on time limitation is dismissed. Having so decided on time limitation, now I turn to determine on grounds of appeal. From the beginning I have noticed that, the first ground bears some input of law mixed with facts. It is unfortunate that, both learned advocates did not research much on this ground as it is reflected in their written submissions. The general rule is that, the court must determine all grounds of appeal unless under particular Page 8 of 16 circumstance one ground may dispose of the whole appeal or where other grounds bears the same question in substance, which is determined in the other ground or the grounds are jointly determined. The position is nothing new in our jurisdiction. The Court of Appeal in a number of cases, both Civil and Criminal have discussed this position. For instance in the case of Malmo Montage Konsult AB Tanzania Branch Vs. Magret Gama, Civil Appeal No. 86 of 2001 (unreported) it stated inter alia - "In the first piace, an appellate court is not expected to answer the issues as framed at the trial. That is the roie of the trial court. It is however, expected to address the grounds ofappeal before it. Even then^ it does not have to deal seriatim with the grounds of appeal as listed in the memorandum of appeal It may, if convenient, address the grounds generally or address the decisive ground of appeal only or discuss each ground separately." In my study of the grounds raised by the respondent before the appellate tribunal, as I earlier observed, had nothing more than challenging analysis of the evidence. I find no point in the appellant's advocate contending that, parties were unheard on the ground decided by the appellate tribunal considering that the pleadings and proceedings correspond to the judgment. The nature of those four grounds, in my considered view, centred around one complaint and were very fit to be determined generally or jointly as the appellate tribunal did. Apart from that, there was no prejudice to the parties. The courts in our jurisdiction have adopted the same method in all convenient cases, which both advocates are aware and I need not to cite any one. Mr. Punge's argument to condemn such approach is demented, I thus dismiss it. Page 9 of 16 The second ground is on the contention that, the appellate chairman was wrong when he ruled that, the appellant did not procure the seller to testify before the trial tribunal. In determining this ground, I am cognizant of the following undisputed facts: - First - that the respondent purchased the disputed land in year 2007, while the appellant claimed to have purchased it in year 2011; Second ~ the appellant's seller claimed to have purchased the said land in 2010, just a year before he sold it to the appellant; Third- taking from all witnesses, Shabani Ramadhani Omar sold the said land to Juma Segumba when it was already under the respondent's occupation. The question on the root of title between Shabani Ramadhani Omar in 2010 on one hand and that of Omar Mwinyimvua in year 2007 on the other hand arose. Much as I agree that Mr. Juma Segumba appeared and testified before the trial tribunal, I am hesitant to accept Mr. Punge's argument that Segumba established the root of title for the appellant's salvation. Instead, the appellant had uncompromised duty under the principle of buyer beware to establish that Shabani Ramadhani Omar's right over the suit land in year 2010 and Segumba's title over the suit land in year 2011 when same was sold the appellant. The same time ought to contradict the allegations of ownership of same plot of land by Omar Mwinyimvua prior to 2007 when he sold it to the respondent. Unfortunate to the appellant, Shabani Ramadhan Omar was not presented before the trial tribunal and nothing was said about him. It would therefore not be prudent to attack the appellate chairperson in his reasoning which in my assessment, was valid. Failure to lead serious evidence, which would establish the title of the appellant's seller at the time of selling that suit land, was a serious blow to the appellant's case. From the outset, this ground sounded much of misconception as Mr. Kitungutu observed. Page 10 of 16 The principles of land law is clear like a brightest day light, that once the property legally change hands, from one person to another, obvious neither the original owner nor any subsequent person may dare to claim ownership unless such change is nullified. In the same line of thinking, after sale in year 2007, there was no land capable of being sold to another person unless the purchaser so decides to resale it. In the same vein, the subsequent sell in year 2010 and 2011 lacked basis and same were null and void. Having done with its main substance in the manner herein, I am enjoined to find this ground unmerited. The last ground bore a complaint that the appellate tribunal did not evaluate the evidence properly. He suggested that the decision was against the evidence. In determining this ground, I think legal principles governing appeals should be followed. First, the trial court is bound to evaluate the evidence before it. Second, the first appellate court can re- evaluate the evidence and reach to its finding when the trial court did not properly analyse the evidence. Third, generally, appellate courts will not interfere with the findings of the lower court(s) unless there was a misapprehension of facts or law occasioning miscarriage of justice. The prominent cases on these principles include the cases of Peters Vs. Sunday Post Limited (1958) EA 424 and Japan International Cooperation Agency (JICA) Vs. Khaki Complex Ltd, Civil Appeal No. 107 of 2004 (unreported). However, in this case the two tribunals did not make concurrent findings. Mr. Punge criticised the appellate tribunal's decision that, did not critically analyse the evidence before the trial tribunal. He supported the trial tribunal's decision whose verdict among others, had the finding that, both parties won the case. Understandably, Mr. Punge wants this court to restore the trial tribunal's decision. In the case of Hemedi Page 11 of 16 Saidi Vs. Mohamedi Mbilu [1984] T.L.R. 113 (HC) is one of our most celebrated decisions, this court ruled inter alia: - "The learned District Magistrate then went on to observe that each party had a good claim to the disputed piece ofiand. He then came forward with the Solomonic decision and halved the piece of land in question with a portion for each party... According to iaw the person whose evidence is heavier than that ofthe other is the one who must win. I understand the concept of proof on balance of probability would escape the ward tribunal's masterly as it Is usually presided over by lay members. Had it been otherwise, they were to decide for one of the parties even if they thought that the evidence was balanced between the two sides. See the English Case of Miller Vs. Minister of Pensions [1937]2 All. ER 372 on burden of proof, it was described that: - "Ifat the end ofthe case the evidence turns the scale definitely one way or the other, the tribunal must decide accordingly, but if the evidence is so evenly balanced that the tribunal is unabie to come to a determinate conclusion one way or the other, then the man must be given the benefit of the doubt This means that the case must be decided in favour of the man unless the evidence against him reaches ofthe same degree of cogency as is required to discharge a burden in a civil case. That degree is well settled. It must carry reasonable degree ofprobability, but not so high as required in a criminal case. If the evidence is such that the tribunal can say - We think it is more probable than not, the burden is discharged, but, if the probabilities are equal, it is not The insight to the above rule cannot be within the trial tribunal's intellect, but both advocates in this case are abreast with, I presume. Page 12 of 16 The mediation remedies in my verdict should not apply in adversarial litigation unless what is being entered Is a consent judgment. Otherwise, such approach may worsen the dispute. In adversarial system litigation, the plaintiff will either win all or lose all. In the nature of this case, the decisive issue in this case was on the rightful owner of the disputed land. It was either the appellant or the respondent, among them one was the rightful owner of the suit land. It would be improper to declare both parties as rightful owners and order division of the land in two equals like Solomonic judgement over a living child against the two claimants. The appellate tribunal found that the respondent was the owner of the whole piece of land In dispute. In my critical review of the evidences laid before the trial tribunal, I found the following facts were established: - First- the appellant purchased the disputed piece of land when it was already under the respondent's occupation. Second - in establishing root of title, the appellant brought one Juma Segumba who claimed to have purchased the land from one Shaban Ramadhani Omar, who allegedly said to have purchased from Ramadhani Mwinyimvua. Neither Shabani nor Ramadhani Mwinyimvua appeared before the trial tribunal, while Omar Mwinyimvua appeared and stated that, he was given the land by his parents and he sold it to the respondent. The other thing which raises serious doubt is the quick transactions from the said Ramadhani Mwinyimvua to Shabani and then to Juma Segumba who in turn sold the same to the appellant. All the transactions seem to have been conducted without involving Village authority. This being the circumstance, it would not be possible for the appellant to be declared the rightful owner. Even in testimony, the appellant exhibited his knowledge of the sale being void, he said: - Page 13 of 16 "IHpofika mwaka 2012 huyu bwana Shifa alitokea akasema Hie eneo ni la kwake. Niiipofika nikamwambia usingbe hizi nguzo Hi tutafute waiiotuuzia nikaenda kufungua mgogoro wa ardhi katika baraza la ardhi kata ya Kihonda na akapewa Stop order pasifanyike shughuii yoyote paie mpaka ufumbuzi utakapopatikana niiieiekezwa nimpeiekee bwana Shiia niiipompeiekea niiimkuta Shiia na mafundi watatu nikamwelekeza bwana Shiia hapa mmoja wetu amepigwa tu(amedanganyway In the language of this court, the appellant stated that, when it reached 2012 Mr. Shiia appeared and claimed the land to be his. Reaching there, he asked the respondent not to uproot the poles so that they would convene their respective sellers, but he decided to institute a dispute at Kihonda Ward Tribunal, which issued an injunction against the respondent. When he went to serve the order, he found the respondent and three masons. He told the respondent that one of them has been defrauded. This observation by the appellant was plausible and the trial tribunal would have considered that fact. If any of the two was defrauded, such must be a subsequent buyer, the appellant himself. The law is clear that the purchaser is bound to exercise due diligence on the real property he wants to transact. He must be certain of the root of title of the seller and encumbrances if any, among others. Where the purchaser fails to exercise such diligence, he is presumed to have purchased the property, while constructively aware of its status. I am of the settled opinion that, the appellant did not exercise any diligence. On the circumstance of the case, I have landed to the instructive decision of The Court of Appeal in Hamisi Bushiri Pazi & Others Vs. Saul Henry Amon & Others (Civil Appeal 166 of 2019)[2022] Page 14 of 16 TZCA 186 and Idrissa Ramadhani Mbondera Vs. Allan Mbaruku & Another (Civil Appeal 176 of 2020) [2023] TZCA 204. The Court held: - 'We need to emphasize as we have already stated that, in all land transactions such as the one In the Instant case, It Is always Incumbent upon the purchaser to undertake due diligence by assessing the risks associated with the property he Is planning to purchase...much as It may be a bitter pill for the first respondent to swallow but for which there seems to be no consolation, he may have to live with the fact that he did not exercise all necessary due diligence before he went on to buy the suit property. Otherwise, he would not have failed to establish that the vendor had no certificate of title as the suit property appears to have been purportedly held by him under a mere letter ofoffer ofa right ofoccupancy. In that regard, the first respondent could have avoided something he would later on come to regret greatly. Considering all evidences laid before the trial tribunal, the respondent had established by cogent evidence that he was the rightful owner of the disputed land when the appellant purported to purchase It from someone else who also seems to have purchased it while already under the respondent's ownership for years. There was no dispute on how each of the parties purchased the land, but a decisive fact to be proved was the root of title of the respective sellers. As both parties cannot win to be rightful owners, same way their respective sellers' root of title cannot have the same standing in law, but only one of them would prevail. In this case, the respondents root of title was established and well traced while the appellant's root of title was not established. The trial tribunal therefore Page 15 of 16 was unjustified in its decision in those two aspects pointed out. Declaring both parties as winners in the dispute and ignoring the proof by the respondent was misconception of principles governing adversarial systems, justice and law. Although the appellate tribunal did not point on the first aspect, yet it was correct in analysis, reasoning and finding which otherwise this court has no justification to fault in substance. This ground likewise must fail. Having so reasoned, I proceed to pronounce that this appeal lacks merits same is dismissed entirely. The respondent is entitled to costs as Order accordingly. llr! yrr point " Dated at Morogoro this 22"^ day of May, 2023. aad finding COo k izir'.J. NGWEMBE 4 fS >y JUDGE SA GORO 22/05/2023 Court; Judgement delivered in chamber at Morogoro on this 22"^ day of May, 2023 in tne presence of Respondent and his Learned Advocate, Mr. Gabriel Kitungutu and in the absence of Appellant/his Learned cJ^unsel. Sgd; A. W./^^bando, DR 22/05/2023 Right of appeal to the Court of Appeal explained A Sgd: A, WVWiilibando, DR 22/05/2023 ^GORO Putic 16 of 16