LAND APPEAL NO 9 of 2023HAMISI AHAMADI IBRAHIMU NEWNEWNEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MTWARA SUB-REGISTRY AT MTWARA LAND APPEAL NO 9 OF 2023 (Originating from the District Land and Housing Tribunal for Lindi at Lindi in Land Application No.6 of 2022) HAMISI AHAMADI IBRAHIM.............. ............. .APPELLANT VERSUS RAJABU OMARY MTIMBE .................... ..RESPONDENT JUDGMENT Date of Last Order: 2vi November2023 Date ofJudgement: 27h November2023 The Appellant herein HAMISI AHAMADI IBRAHIM is dissatisfied with the decision of the District Land and Housing Tribunal for Lindi at Lindi (the DLHT) in Land Application No.6 of 2022. He has appealed to this Court by way of a Memorandum of Appeal with 5 grounds of appeal. I choose not to reproduce them here. The appeal was called on for hearing on the 2nd day of November 2023. Whereas the appellant enjoyed the legal services of Mr. Ali Kasian Mkali, learned Advocate, the Respondent appeared in person. Page 1 of 8 unrepresented. The appeal was argued orally. In the next paragraphs I present a summary of submissions by both parties. Mr. Mkali, counsel for the appellant, addressed the court, stating that the grounds of appeal could be grouped into two categories: the first group consisting of the 1st, 2nd, and 4th grounds, and the second group consisting of the 3rd and 5th grounds. Mr. Mkaii argued that the chairperson failed to direct herself properly and reached an erroneous decision in favour of the respondent. He contended that the chairperson acted as a witness instead of an adjudicator and did not follow the procedures governing visits to the locus in quo, as established by authorities from this court and the Court of Appeal of Tanzania (the CAT), specifically citing the case of Martin Mgando vs. Michael F. Mayanga, Land Appeal No. 93 of 2019. Mr. Mkali outlined the principles for visits to the locus in quo, which include ascertaining the location of the suit extent, boundaries, and physical features on the land; clearing doubts as to the accuracy of conflicting pieces of evidence; and eliminating minor discrepancies and clarifying contradictions. He stated that in the present Case, the chairperson had two matters related to the respondent, Rajabu Omari Mtimbe, with the other matter being Land Application No. 21 of 2022, involving a different area and person but the same respondent. Page 2 of 8 The learned Advocate further argued that the chairperson, by mentioning a palm tree next to the disputed land on page 7 of the impugned judgment, turned herself into a witness, as no witness had mentioned such a tree during the proceedings. He requested the court take judicial notice of Land Application No. 21 of 2022, arguing that the chairperson’s transfer of facts from one case to another demonstrated her role as a witness. Consequently, Mr. Mkali reasoned, the chairperson made a judgment in one case using facts from another case, contrary to the procedure governing visits to the locus tri quo. Addressing the second group of appeal grounds (the 3rd and 5th), Mr. Mkali noted that the appellant's witnesses testified that the respondent's father, the licensee of the suit land, was given the land by the original owner, Mzee Nandaja. PW4, Fatuma Nandaja, testified that the land had been returned to the original owner before his death, as recorded on pages 16 and 17 of the examination in chief and cross- examination. She stated that the land had been returned to Mzee Nandaja, implying that the respondent's father was only given the right to build a small banda in 1977, but the land itself was not owned by him. He went on to emphasize that the appellant had purchased the land, measuring a quarter of an acre, from the Nandaja family, with boundaries Page 3 of 8 described in the land sale agreement (Exhibit P2), which included sharing a boundary with the fence of the gas station (Ukuta wa Shell). Mr. Mkali criticized the chairperson for ignoring this background and concluding that the respondent had used the land uninterrupted for a long time, arguing that this was a legal error. He prayed for the appeal to be allowed with costs. The Respondent, on his part, calmly addressed the court, asserting that the suit land belonged to his late father, who had obtained it from the Village Council of Mnazi Mmoja in 1977. He explained that his father had built a small tearoom and a tire repair shop on the land, using it until his death in 1993. The appellant, Hamisl Ahmad Ibrahim, the Respondent recounted thoughtfully, was the grandson of the late Mohamed Nandaja, who was the respondent's neighbour. The respondent detailed how Nandaja had witnessed the handing over of his deceased father's estate and had never claimed the land during his lifetime or until his death in 2001 or 2002. The respondent expressed surprise that the appellant only claimed the land in 2022, despite the respondent's continuous use of the land since 1993. He mentioned that he had purchased an additional small piece of land in 2008, demolished the tire repair shop in 2002 to build a dagaa kiosk, and had been renting out the land to various tenants without Page 4 of 8 disturbance. He argued that the two cases against him, one involving KOmbo Ahmad Kombo and the current appeal, were both attempts to disturb him regarding the same land. He objected to the claim that the DLHT turned itself into a witness. In a brief rejoinder, Mr. Mkali referred to the testimony of DW6, Hassan Saidi Simba, who had stated on page 34 that there was no other banda. He pointed out the contradiction between this testimony and the respondent's allegation of a banda Ja pancha, concluding his remarks to the court. I have dispassionately considered the rival submissions in the light of the grounds of appeal. I have also carefully examined the lower court records with special emphasis on the proceedings and the impugned judgement. I need not waste time in pointing out, with due respect to Mr. Mkali, that the appellant's claim that the chairperson acted as a witness rather than an adjudicator lacks merit. The chairperson's mention of a palm tree, while not directly testified to by witnesses, does not constitute turning herself into a witness. The purpose of the visit to the locus in quo is to assist the court in understanding the physical aspects of the land in dispute, which the chairperson fulfilled. Furthermore, the principles established in Martin Mgando vs. Michael F. Mayanga (supra) Were Page 5 of 8 adhered to, as the visit aimed to clarify the location and features of the land. The appellant’s argument that the chairperson ignored crucial evidence is unsubstantiated. I enjoyed reading the impugned judgement and I must say that the DLHT thoroughly evaluated the testimonies and evidence presented by both parties. The testimony of PW4, Fatuma Nandaja, and the land sale agreement (Exhibit P2) were duly considered. The DLHT correctly concluded that the respondents father had legitimate possession of the land and that the respondent continued to use it without interruption after his father's death. More importantly, the appellant's assertion that the chairperson transferred facts from another case is not supported by the records. Each case was adjudicated based on its merits and evidence. The alleged contradictions in the respondent's testimony were minor and did not significantly affect the overall finding that the respondent had a legitimate claim to the land. As a matter of facts, I found myself between the rock arid a hard ground when considering this last point. It was not immediately clear to me who was confusing who, whether the learned Advocate knew that the two cases instituted against the Respondent were on the same piece of land and come very close to abuse of the court process. Page 6 of 8 It is apparent that the appellant is a young man, grandson to the late Mohamed Nandaja, who was the respondent's neighbour. The respondent, a calm but gifted storyteller, detailed how Nandaja had witnessed the handing over of his deceased father's estate and had never claimed the land during his lifetime or until his death in 2001 or 2002. The Appellant waited until 2022, ten years after his father had passed away to institute these baseless suits as correctly spotted by the learned Chairperson. Reference to the respondent's continuous use of the land since 1993 makes the whole matter an exercise in futility. In the upshot, this appeal is hereby dismissed. Costs follow the event. E.I. LA LTAI KA JUDGE 27.11.2023 Judgement delivered under my hand and the seal of this Court this 27th day of November 2023 in the presence of Mr. Ali Kasian Mkali, learned Advocate for the Appellant, and the Respondent who has appeared in person, unrepresented. Page 7 of 8 E.I. LALTAIKA JUDGE 27.11.2023 The right to appeal to the Court of Appeal of Tanzania is fully explained. E.I. LALTAIKA JUDGE 27.11.2023 Page 8 of 8