hadija rashid bane vs said folen 2020 tzhclandd 141 15 may 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISCELLANEOUS LAND APPEAL NO. 84 OF 2018 (Arising from the decision of the District Land and Housing Tribunal for Kibaha in LandAppealNo. 138 of2018 (Hon. Mbuga, Chairman) HADIJA RASHID BANE ......... .........APPELLANT VERSUS SAID FOLEN .... .......................... RESPONDENT JUDGMENT MAIGE, 3 This appeal traces its origin from the decision of the Kisarawe Ward Tribunal ("the trial tribunal") in Application No. 2 of 2017 wherein the respondent's claim was dismissed and the appellant declared the lawful owner of the suit property. The decision could nevertheless not last long. It was reversed by the District Land and Housing Tribunal for Kibaha ("the DLHT") on appeal. Aggrieved, the appellant has lodged the instant appeal on the following grounds;- 1. The appellate tribunal erred in law and facts for failure to recognize the tendered documents which shows the ownership. 2. The appellate tribunal erred in law and facts for declaring the respondent the lawful owner o f the land in dispute while the respondent is a stranger to the matter. 3. The District Tribunal erred in law and fact for declaring the respondent the Lawful owner o f the Land in dispute without identifying size and boundaries to be owned by the respondent The appeal was argued by way of written submissions. Mr. Nesto Mkoba, learned advocate appeared for appellant while advocate Isaac Nassor Tasinga for the respondent. Both the counsel adhered to the schedule and presented remarkable submissions. They have been duly considered in my decision. Before I decide who is right and who is not, a brief exposition of the factual background underpinning the dispute may be inevitable. The lamentation of the respondent at the trial tribunal was that his late father's 17 acres farm located at Kimana within Kisarawe ward ("the respondent's property") had been trespassed unto by the appellant. In his oral testimony, the respondent informed the trial tribunal that the suit property belonged to his late father who demised in 2006. The trespass is claimed to have been committed in between 2012 and 2013. At that particular juncture, the respondent was in Kigoma. Five other residents of the village testified in supportnof the respondent's case. These were; Saidi Ngalumba (PW2), Salvator Condrard Mwiru (PW3), Hassan Ally Ngatunga (PW4), Pius Bwagi (PW5) and Omary Huba Nguyu (PW6). In their testimonies which appeared to be common, they testified that the suit property belonged to the respondent's late father. In addition, the evidence of the first four witnesses suggest that, the appellant's late husband purchased his farm land from the late Condrard Mwiru. In her defense testimony, the appellant claimed that the suit property was allotted to her late husband by the District Commissioner during operation nguvu kazi\r\ 1988. She produced an allocation letter which was admitted as exhibit 3. Her testimony was corroborated by Said Mohamed Mwangu and Charles Haule. The latter was among the persons who were given land at the village, by the DC, in operation nguvu kazi. To his knowledge, the suit property belongs to the appellant. After evidence taking in the tribunals' room, the trial tribunal deemed it necessary to visit the locus in quo for inspection. The observations by the trial tribunal from the oral testimony and what was gathered at the locus in quo was that the dispute was not on ownership of the 17 acres farm of the respondent. It was a boundary dispute involving a 1 Vz acre piece of land. It is marked in the sketch map 2 drawn by the members of the trial 3 tribunal with blue colour. The respondent's farm is marked with red colour whereas the appellants farm with black colour. In its well-reasoned judgment, the trial tribunal established as a fact that the suit property belonged to the appellant. It was impressed by the appellant's documentary evidence in exhibit 3. The trial tribunal doubted the probative value of the respondent's testimony because though in their testimony they claimed that the boundary of the suit property is marked by permanent crops, at the locus in quo neither of the respondent's witnesses was able show any of the claimed marks. Besides, it did not believe the proposition from the respondent's witnesses that the appellant purchased his farm from PW3's father. The reason being that neither of the witnesses was able to produce the purchase agreement. On its decision on appeal, the presiding chairperson who opted to depart from the concurrent opinions of the gentle assessors, was persuaded by the testimony of the five respondent's independent witnesses because they were residents of the village. More importantly, he was persuaded by the testimony of PW4 that the suit property was not affected by the nguvu kazi operation. In his second ground of appeal, the counsel for the appellant faults the first appellate tribunal in not indicating in the title of the case that, the appellant was appealing as the administrator of the estate of his late father while it was apparent in the proceedings of the trial tribunal. The complaint may sound laudable. However, in the circumstance of this case it is too trivial to affect the substantial validity of the judgment and proceedings of the first appellate tribunal. I will explain. In accordance with the proceedings of the trial tribunal, both the parties were litigating on the suit property in representative capacities. They both submitted their letters of administration and they are on the record. That aside, the trial tribunal omitted to reflect in the title of the case the capacities in which the parties were litigating. Admittedly that was wrong. The judgment of the first appellate tribunal I agree, suffers from the same lash. Nevertheless, as the capacities of the parties were made clear throughout the proceedings of the trial tribunal, the omission is a mere minor irregularity which can be ignored without occasioning any failure of justice. That is in line with the authority of the Court of Appeal in Suzana Warvoba vs. Shiia Dalawa, Civil Appeal No. 44 of 2017 (CAT- Unreported at page 10) where it was observed that;- We are o f the considered view that the fact that Suzana Waryoba was suing in her capacity as an administratrix o f the estate o f the late Stanislaus Waryoba shouid have been reflected in the title o f the case. However, we hasten the remark that the omission is not fatal given that it was dear throughout that she was suing in that capacity and the judgment o f the Primary Court which appointed her as such, was tendered in evidence at the very outset We only wish to accentuate that when a litigant sues as an administrator or administratrix o f estate; it is desirable that the same should be reflected in the title. It is for the foregoing reasons that, I will overrule the second ground of appeal. Let me now pass to the first ground of appeal on the assessment of evidence. The presiding chairperson jBfaulted in not properly assessing the evidence. He unreasonably ignored the documentary evidence in exhibit 3, says Mr. Mkoba, learned advocate for the appellant. In his submissions in refutation, Mr. Tasinga thinks that the first appellate tribunal was justified in placing reliance on the testimony of the eye witnesses who confirmed that the suit property belonged to the respondent. He submits further that, as the suit property was owned customarily, documentary evidence was irrelevant. The issue of ownership was to be proved by neighbors as it was for the case of the respondent. I have considered the rival submissions and carefully examined the records of both tribunals. Though the dispute initially appeared to be on the ownership of the respondent's 17 acres farm, it transpired from the evidence that the scope of the dispute was very narrow. It was restricted to a small piece of land from the said 17 acres unto which the appellant was accused of trespassing. In his evidence, the respondent estimated the size of the 6 encroached land as between 1 V* and 1 Vi acres. The trial tribunal, after inspecting the locus in quo, established that it was IV2 acres. In the sketch map No. 2 on the record it is marked with blue colour. In the judgment under scrutiny, I have observed, the description of the suit property by the trial tribunal has not been doubted. The trial tribunal is only faulted in not holding that there was sufficient evidence to establish that the said plot belonged to the respondent's late father. Conceivably, that is the issue which I am supposed to resolve. It is important to emphasize that, the respondent who was the claimant at the trial tribunal had the burden to prove that the appellant invaded his land. He attempted so do through his own testimony and that of his five supporting witnesses. The respondent is on the record testifying that, the boundary between his farm and that of the appellant was marked by teak, palm and mango trees. On his part, PW5 told the trial tribunal that, the same was marked with cashew nuts and tight trees. In accordance with the record of the trial tribunal, the respondent and his witnesses were requested at the locus in quoto show the said boundary marks. Alas, neither of them was able to show. Therefore, since the burden of proof was on the respondent, the trial tribunal took it that, the respondent had failed to prove his claim. In his 7 judgment, the presiding chairperson while concurring with the trial tribunal that, the dispute was on boundary, did not consider this very pertinent issue. He placed reliance on the oral testimony of the respondent's witnesses because they were the residents of the village. With respects, he was wrong. The dispute involved being on boundary and the suit property being unsurveyed, there was no way the respondent would have established his claim without establishing the boundary between his farm and that of the appellant. The presiding chairperson was also persuaded by the evidence of PW4 that the suit property was not affected by the operation nguvu kazL I do not think that such evidence was relevant in the circumstance. It could have been relevant if the dispute was on the ownership of the piece of land which the appellant claimed to have been allocated during nguvu kazi operation. Quite differently, the dispute was on 1 Vi acres land which the appellant was accused to have encroached. That would have been proved upon the respondent establishing the boundary of his farm. PW1, PW2 and PW3 claimed that, the appellant purchased his farm from Condrard Mwiru. Neither of them produced any purchase agreement despite being challenged so to do in the course of cross examination. As that is not enough, neither of them was able even to describe the size of the appellant's farm. They could not even tell when did the appellant's husband purchased the same. 8 With such weak evidence, it cannot be said that, the respondent proved his case at the trial tribunal on the balance of probability. The trial tribunal was therefore quite right in holding that the respondent had failed to establish his case. I agree with Mr. Mkoba, learned advocate for the appellant that, the assessment of the evidence by the first appellate tribunal was incorrect. The first ground of appeal is henceforth sustained. Since the same is capable of disposing of the matter, I find it unnecessary to determine the last ground. In the final result, the appeal is allowed to the extent as afore stated. The judgment of the first appellate tribunal is hereby set aside. As a result, the judgment of the trial tribunal upheld. The respondent shall pay the costs of the prosecution of the appeal. It is so ordered. 9 Date: 15/05/2020 Coram: Hon. C.M. Tengwa - DR For the Appellant: Absent For the Respondent: Present RMA: Bukuku COURT: Judgment delivered in the presence of respondent and in the absence of appellant. 10