20170915 TZHC Mwanza2

IN THE HIGH COURT OF TANZANIA (MWANZA REGISTRY) ATMWANZA MISCELLANEOUS LAND CASE APPEAL NO.91 OF 2015 (Arising from the decision of the District Land and Housing Tribunal of Tarime District at Tarime in Land Case Appeal No. 136 of 2014/ Original Ward Tribunal of Nyamisangura Ward in Application No. 13 of 2014) · GRACE JOSEPH WAMBURA ..........................................APPELLANT VERSUS NELSON CHACHA WAMBURA .................................... RESPONDENT LastOrde~· 12/07/2017 Judgment: 15/09/2017 JUDGMENT MAKARAMBA, J.: In this Appeal, the Appellant, GRACE JOSEPH WAMBURA, sought to contest the decision of the District Land and Housing Tribunal for Tarime at Tarime in Miscellaneous Application No. 136 of 2014. ~riefly, in 2014, the Respondent, Nelson Chacha Wambura brought a suit against Grace Joseph Wambura, the Appellant, before the Nyamisangura Ward Tribunal in Application No. 13 of 2014, claiming that the Appellant had trespassed on the Respondent's land by cultivating and planting trees thereat. The disputed area is 15 paces in width and 20 paces in length, which the Appellant claim to have purchased together with her husband, Josephat Fredrick, from one Mwalimu Thomas· Simba. The suit the Respondent brought against the Appellant f0 Page 1 of 9 before the Nyamisangura Ward Tribunal, ended in favour of the "' Respondent, which the Appellant never appealed against. On the 3 rd September, 2014, the Respondent filed application for execution of the Decree by the Nyamisangura Ward Tribunal before the District Land and Housing Tribunal in Application No. 136 of 2014 seeking the assistance of the Tribunal to evict the Appellant from the suit land. The Appellant contested the application by saying that, she was not the legal owner of the suit land. According to the Appellant, the suit land was legally owned by her husband one Josephat Fredrick and thus prayed the application for execution be dismissed. However, the District Land and Housing Tribunal granted the application for execution. It is against this decision, the Appellant has been aggrieved with and hence the present appeal before this Court which is on the following grounds, namely; 1. That, the trial Tribunal erred in law for the failure to notice that the Decree Holder sued a wrong person since the legal owner of the same is her husband. 2. That, the trial Court erred in law for the failure to consider that there is a dispute already filed by the Appellant's husband (the legal owner of the disputed land) against the Respondent claiming over the same disputed land before the trial Court Application No. 73/2014 still need to be determined. 3. That, Honourable trial Court erred in law and in fact for the failure to notice that even the document (sale agreement) tendered before it ~ Page 2 of 9 by the Appellant shows that the one bought the disputed land is her husband one Josephat Fredrick. The Appellant prayed before this Honourable Court to quash and declare the decision and orders of the Tribunal void. In prosecuting the appeal, both parties appeared in person and by consent the appeal was disposed of by way of written submissions. In her submissions in chief, the Appellant stated that, she told the Nyamisangura Ward Tribunal that she was not the legal owner of the disputed land as alleged by the Respondent due to the fact that, the land in dispute belongs to her husband, Josephat Fredrick, who bought it from . one Jenipha Simba on 21/06/2000. She stated further that she . . had never signed the Sale Agreement. The Appellant stated further that, the legal owner of the suit land is one Josephat Fredrick who filed an Application No. 73 of 2014 before Tarime District Land and Housing Tribunal to challenge the legal ownership of the suit land by the Respondent. The Appellant submitted further that the family of her husband, Josephat Fredrick, has been carrying out development activities on the disputed land for more than thirteen years peacefully. The Appellant stated further that, the trial Tribunal erred in both law and fact for failure to notice that even the document, Sale Agreement, . tendered before it by the Appellant shows that the· one who bought the disputed land is her husband one Josephat Fredrick. The trial Tribunal intentionally ignored the document tendered before it which verify and ~ Page 3 of9 :.1 declares one Josephat Fredrick as the legal owner and responsible person to be sued in respect of this case. The Appellant stated further that, the Ward Tribunal erred in both law and fact by declaring that the Appellant and her husband together bought the disputed land something which is not true_ due to the fact that the disputed land was bought by one Josephat Fredrick in 2000 before she had been married to him, as she was married to Josephat Fredrick in 2008. The Appellant stated further that, a party may be represented by an advocate, his agent or another person, but the legal procedures must be followed for such representation by another person. According to the Appellant, such person ought to have given a Special Power of Attorney which ought to have been signed by the Donor and the Donee and shall stc1te the manner and reasons for representation something which the Respondent did not do. In reply the Respondent stated that, the Appellant was the one who trespassed on the Respondent's land. The Respondent stated further that, the Appellant ought to have appealed against the Ruling of the Tarime District Land and Housing Tribunal on the Miscellaneous Application No. 136 of 2014 dated 14th May, 2015 and not to appeal. against the decision of the Nyamisangura Ward Tribunal. According to the Respondent, it was an abuse of the Court process. The Respondent stated further that, the grounds of appeal before this Court are not based on challenging the Ruling of the Tarim_e District Land and Housing Tribunal on the Miscellaneous Application No. 136 Page 4 of9 of 2014 dated 14th May, 2015. Instead are based on challenging the decision of the Nyamisangura Ward Tribunal. There was no appeal filed by the Appellant to challenge the decision of the Ward Tribun_al before Tarime District Land and Housing Tribunal. The Respondent stated further that, there is no Land Appeal No. 136 of 2014 which originated from Nyamisangura Ward Tribunal in Land Application No. 13 of 2014 to Tarime District Land and Housing Tribunal. The Appellant has never lodged any appeal to challenge the decision of the Nyamisangura Ward Tribunal before the Tarime District . Land and Housing Tribunal. If the Appellant wished to appeal against the decision of the Nyamisangura Ward Tribunal she could have done so in the Tarime District Land and Housing Tribunal in terms of section 19 of the Land Disputes Courts Act; 2002. After the lapse of 45 days as required by the law under section 20( 1) of the Land Disputes Courts Act 2002., the Respondent proceeded with execution of the Judgment of the Nyamisangura Ward Tribunal, the Respondent further submitted. The Respondent stated further that, the Appellant's grounds of appeal and her submissions were supposed to- base on the Ruling which granted the execution Order to the Respondent and not to use that chance to challenge the decision of the Nyamisangura Ward Tribunal. The Respondent stated further that, the Appellant cannot rely on the Sale Agreement adduced during the hearing of the application at the Nyamisangura Ward Tribunal, due to the fact that the matter before this Court is not an appeal of the decision of the Nyamisangura Ward Tribunal. The Respondent prayed that the appeal be dismissed with costs and the Page 5 of 9 ruling of the Tarime District Land and Housing Tribunal which granted the order of execution to the Respondent be upheld. The Respondent stated further that, under section 46 of the Land Disputes Courts Act; 2002 parties before this Court may appear in person or by an advocate or other representatives. According to the Respondent, the Respondent's act of sending a person to represent him in the said land application is recognized by law and the Appellant claim is baseless and of no merit. In rejoinder, the Appellant stated that, she is challenging the Ruling of the Tarime District Land and Housing Tribunal which granted the execution against a party which i_s not a proper one since the Respondent . sued a wrong party. The Appellant stated further that, the Court cannot grant execution orders against a person who is not the legal owner of the suit land. On the respective arguments by the parties in this appeal, this Court finds that, the suit before the Nyamisangura Ward Tribunal was for trespass to land. The Respondent complained against the Appellant to have trespassed .on the Respondent's land by cultivating on it. The Respondent complained further that, the Appellant had encroached on his land for about 15 paces. in width and 20 paces in length. On the. other hand, at page 3 of the typed proceedings of the Nyamisanura Ward Tribunal, the Appellant stated that, her, together with her husband bought the suit land from one Mwalimu Thomas Simba. At page 5 of the typed proceedings of the Nyamisangura Ward Tribunal, Thomas Simba stated that he sold the suit land to Mr. Josephat Fredirick together with his wife Grace (the. Page 6 of9 Appellant herein). I have carefully gone through the record of the Nyamisangura Ward Tribunal; I have never come across the purported Sale Agreement between Thomas Simba and Josephat Fredirick. Thus, what is on the Court record is the statement of fact that, Thomas Simba sold the suit land to both the Appellant and her husband one Josephat Fredirick. Thus, the allegation by the Appellant that she was not the legal owner of the suit land collapses. After all, if the Appellant maintains that the suit land does not belong to her, she could have no defence against a suit on trespass. It is pertinent to note that, the suit was not based on ownership but trespass to land. In a civil suit setting, trespass to land is an intentional tort. It consists of interference with possession of someone's property. It occurs where a person directly enters upon another's property (land) without permission, express or otherwise. It has got nothing to do with ownership to the property trespassed unless it has been raised by the Defendant by way of defence. The Respondent sought an assistance of the Court to retain possession of his land. In the premise, the Appellant was expected to have raised any defence against a suit for trespass. This is due to the fact that, the Appellant was found cultivating on the suit land without permit. Since,_ in the application for execution the Appellant denied to have been the legal owner of the suit land, this Court finds that, the Appellant had raised no defence against the application for execution. In the case of Jermiah Njau v. R., [1969J HCD 308 it was held that; " ... the general law of tort provides that a person who is in possession of land but who finds trespassers upon it; is always entitled to enter _Page 7 of 9 or re-enter his land and may use reasonable force to evict the . trespasser and may even pull down any building erected by the trespasser (so long as it is not inhabited by him). In the premise, this Court finds that, the District Land and Housing Tribunal was correct in granting the application for execution against the Appellant. I have also considered argument by the Appellant that the Respondent was not properly represented as the person instructed to do so did not possess a Special Power of Attorney. Upon going through the proceedings of the High Court of 25/04/2017 and 21/06/2017 when the matter came for hearing, the Respondent instructed her granddaughter one Rachel Charles to inform this Court that. the Respondent was sick and could not be able to appear before this Court for the hearing of the appeal. On 12/06/2017 when the matter came for hearing, the Respondent instructed his son one Charles Wambura to inform this Court that the Respondent was still sick. In the eyes of the law, the Respondent's son and his granddaughter were not legal representatives of the Respondent in this matter. They were not instructed to proceed with the case as the Respondent's lega.1 representatives. They were merely instructed to inform this Court that, the Respondent was sick. I have gone through the Written Submissions by the Respondent and I am satisfied that, they were drawn, signed and filed by the Respondent himself. I have also gone through the proceedings of the Tarime District Land and Housing Tribunal and those of the Nyamisangura Ward Tribunal; there is nowhere Page 8 of9 _the Respondent has been legally represented. It is for these reasons; this ~ Court finds that, the Respondent has never been legally represented. The argument by the Appellant fails. I dismiss them. It was also the argument by the Respondent that, the Appellant has been appealing against the decision of the Nyamisangura Ward Tribunal instead of the Ruling on execution by the Tarime District Land and Housing Tribunal. I have gone through the Petition of Appeal by the Appellant lodged before this Court on the 29 th May, 2015, according to which, the Appellant is appealing against the Ruling by the Tarime District Land and Housing Tribunal dated 14th May, 2015, which originated from the application for execution. In my considerJ~ view, the appeal was properly filed before this Court as it originat~d fro~ '.the ruling by the Tarime District : Land and Housing Tribunal on an applk:ation for execution. It is not ther~fore an abuse of the Court process aJ !the Respondent would wish this Court to believe. \: It is for the foregoing reasons this c!urt finds that, the appeal fails in its entirety. It is hereby dismissed. Consibering the circumstances of the parties and the nature of this suit, I shall \not make any order as to costs. Each party shall therefore bear its own :costs in this appeal. It is so .....,....-:"=--:-,..,... a';S)1 T OF' ;,. __,_ ordered~-c5·' . .,_ -·---<-4,;,~. I4(;j ~ ·. ~ ~--:,,\ r_,). 1...\·. " " t 3-; "T ';~,1 . ,~,, , i:,, .\ RV MAKARAM.BA I k1 t ~ .· ; ! • ■ . 14 I .::~ \ ;.,,1.1~-,, ·:.:•,e. J ,: .!!'J{ -~ ,.,._,. . ,~ ..;--( f' /.·' / JUDGE "'-~?~:::=··~·::>/J/ .......___ . . ~ .•· - ./" ..:-,,,- Page 9 of 9