SHABANI JUMA V FROLA MAGANGA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA LAND APPEAL NO. 14059 OF 2024 {Arising from the District Land and Housing Tribunal for Nzega in Land Application No. 28 of2020) HARUNA SAID (Administrator of the Estate of the Late Said Ramadhani).............................................. APPELLANT VERSUS 1. SHABANI JUMA ...................................... 1st RESPONDENT 2. FROLA MAGANGA (Administratrixof the Estate of the Late Maganga Gomu)........................................ 2nd RESPONDENT JUDGMENT Date of Last Order:6.11.2024 Date ofJudgment: 06.02.2025 KADILU, J. In the District Land and Housing Tribunal (DLHT) for Nzega, the appellant filed Land Application No. 28 of 2020 praying for the tribunal to declare him the rightful owner of the land in dispute. He described it as the land located at Tongi Ward within Nzega District in Tabora Region, valuing TZS. 30,000,000/“. A brief background of the matter is that the late Said Ramadhani acquired the disputed land in 1958 after having cleared the bush. In 1977, he shifted to Puge Ward leaving his land to Shabani Juma (1st respondent) as a caretaker. The handing over was allegedly witnessed by Ramadhani Shabani. Said Ramadhani passed away in 1993 and the appellant was appointed the administrator of his estate. The 1st respondent refused to hand over the disputed land to the appellant. He claimed that the land belonged to him after having purchased it from Maganga Gomu in 1971. In his written statement of defence, the 1st i respondent asserted that he purchased the disputed land in 1976 through an oral agreement, The 2nd respondent stated that she is the administratrix of the estate of her late father who was the lawful owner of the land in dispute before selling it to the 1st respondent in 1976. Before the hearing of the application, the Advocate for the applicant (now the appellant) sought and obtained leave of the court to amend the application to join the administratrix of the estate of the 2nd respondent and describe the disputed land properly. He described it as measuring 100 acres and indicated its boundaries. The learned Chairman of the tribunal heard the parties and decided the case in favour of the respondents on the ground that the applicant failed to prove his ownership of the disputed land. On the other hand, the lay assessors opined that the applicant was the lawful owner of the land. The decision annoyed the appellant. He preferred this appeal consisting of the following grounds: 1. The learned Chairman of the trial tribunal erred in law and facts in holding that a mere construction ofand development alleged to have been made by the 1st respondent on the land in dispute is proof that he is a lawful owner thereof. 2. The learned Chairman of the trial tribunal erred in law and facts by totally disregarding the evidence adduced by the appellant's witnesses who had jointly testified that the 1st respondent was licensed to use the land in dispute to prevent trespassers. 3. Since the evidence of the 2nd respondent was more of hearsay the learned Chairman of the trial tribunal erred in law and facts holding that the 1st respondent lawfully purchased the land in dispute from the father of the 2nd respondent one Maganga Gomu, in consideration of Tsh. 80,000/= without any documentary evidence. 2 ■4. The learned Chairman of the trial tribunal erred in law and facts by failing to decide on or deal with all framed issues agreed upon by the parties. 5. The learned Chairman of the trial tribunal erred in iaw and facts in disregarding the appellant's evidence and further holding that the appellant failed to prove his case on the standard required by the law. Based on the strength of the above grounds, the appellant prayed the appeal to be allowed with costs and declared a lawful owner of the suit land. The respondents did not file a reply to the petition of appeal. The hearing proceeded exparte against the 2nd respondent who refused to receive the court's summons throughout the proceedings. On the day of the hearing, the appellant was represented by Mr. Akram Magoti, the learned Advocate whereas the 1st respondent enjoyed the legal services of Mr. Edward Malando, also the learned Counsel. Mr. Akram prayed to argue the 1st and 3rd grounds jointly, the 2nd and 5th, and then the 4th ground. He started with the 4th ground in which he submitted that the trial court failed to resolve all the issues framed during the pre-trial conference. He referred to the case of Said Mohamed tn Muhsin Amir and Another, Civil Appeal No. 110 of 2020, in which the Court of Appeal at Dares Salaam held that the trial court is bound to decide the case based on issues on record. He explained that the court framed three issues but it resolved one issue only. The learned Advocate urged this court to compel the trial tribunal to resolve the remaining issues by a different Chairman. He added that the learned Chairman not only abandoned some of the issues but also decided on matters that were not disputed between the parties. Mr. Akram gave an example of the question of adverse possession which was raised and 3 resolved by the learned Chaiman without affording the parties right to be heard. Concerning the 1st and 3rd grounds, Mr. Akram submitted that the learned Chairman erred in deciding the case in favour of the respondent for the reason that he could not trespass on the appellant's land and use it for a long time without being noticed by the appellant. He argued that the law is clear that a trespasser is a trespasser, he has no justification whatsoever to occupy someone's land. To support his argument, he cited the case of Princess Nadia [1998] Ltd v. Remency Shikusiry arid Others, Civil Appeal No. 242 of 2018, Court of Appeal at Tanga. He concluded that the mere fact that the respondent developed the disputed land cannot entitle him to the ownership. The Counsel submitted further that the ldt respondent allegedly acquired the disputed land by purchase but he did not produce any proof of the said transaction and, his assertion was not backed up by the pleadings. He expounded that since the parties are bound by their pleadings, the respondents' evidence on this point deserves to be ignored. Mr. Akram explained that the 1st respondent told the tribunal that he had no proof that he purchased the disputed land. He did not also summon the witnesses of the alleged sale to testify in court. He referred to the case of HemedSaid v. Mohamed Mbiiu [1984] TLR 113, on the effect of failure to call a key witness. He concluded that the sale of the village land without the approval of the Village Council is ineffectual. About the 2nd and 5th grounds of appeal, Advocate for the appellant submitted that the trial tribunal failed to consider the appellant's evidence. 4 According to him, the appellant told the tribunal that he gave the disputed land to the respondents to take care of and return it whenever needed. He said the assertion was proved by persons who witnessed the said agreement. Nevertheless^ the learned Chairman of the tribunal did not consider their testimonies. As a result, he reached a wrong conclusion. Mr. Akram prayed for the appeal to be allowed with costs and for the appellant to be declared a lawful owner of the disputed land. When Mr. Edward Malando was given the floor, he informed the court that he was opposing the appeal in its entirety. He argued that any decision of the court should be based on the strength of the claimant's evidence, not on the weaknesses of the opponent's evidence. He refuted the allegation that the learned Chairman of the tribunal did not consider the appellant's evidence. The Advocate stated that under Section 110 of the Evidence Act, the appellant had an obligation to establish his claim but he failed. According to Mr. Malando, the appellant did not prove that the land in dispute belonged to his late father and that he handed it over to the 1st respondent to take care of. He explained that on cross-examination, the appellant testified that he does not live on the disputed land, but the 1st respondent lived there for about 50 years before the dispute arose. Mr. Malando discredited the argument that the respondent developed the appellant's land at his own peril. He expounded that the dispute before the tribunal was about ownership of the disputed land so, it is illogical to consider the respondents as trespassers before the tribunal declared them so. 5 About the complaint that the learned Chairman did not resolve all the issues framed, the learned Advocate submitted that after the question of ownership was resolved, the remaining issues became redundant. He gave an example that after the tribunal found the 1st respondent was the lawful owner of the suit land, the point of relief could not be useful. He also refuted the allegation that the learned Chairman raised new points and resolved them unilaterally. In Mr. Malando's opinion, the Chairman discussed the issues in the course of analyzing the evidence hence, there is no need to alter the decision of the trial tribunal as prayed. He argued that the cases cited by the Advocate for the appellant are distinguishable from the instant case because the facts are completely different and the issues for the court's determination are distinct. To him, the respondents proved their case in the balance of probabilities. He cited the case of Miller k Minister of Pension, [1937] 2 All ER 372, where the meaning of balance of probability was discussed. The Advocate for the respondents argued that the appellant should not be allowed to hide behind the weaknesses of the respondent's evidence but he has to prove his claim to the required standard. Mr. Malando argued that the 1st respondent's lack of documentary evidence of purchase is immaterial as the appellant did not as well produce any documentary evidence that the land was handed over to the 1st respondent as a caretaker. Mr. Malando advised the appellant that if he is seeking refuge in the equity, he should do so with clean hands. By way of rejoinder, Mr. Akram stated that documentary evidence is mandatory where the sale of land is alleged. In the present case, the alleged 6 sale was not proved by documentary evidence, and the Village Council did not approve it. Further, all of the framed issues were not resolved and the learned Chairman did not state that the answer to the 1st issue had rendered the remaining matters irrelevant. The Advocate maintained that constructing on one's land does not turn the trespasser into a lawful owner. He argued that adverse possession principles do not apply where one is a licensee. I have carefully examined the grounds of appeal, records, and submissions by the Advocates for the parties. The task is now to determine whether the appeal is meritorious or not. Starting with a complaint that the trial Chairman did not resolve all the issues framed before the hearing, the record indicates that there were three issues. The first issue was, who is the lawful owner of the suit land between the appellant and the 1st respondent? The second issue was, are the respondents trespassers to the disputed land? The last issue was about the reliefs to which the parties were entitled. A perusal of the tribunal's judgment and decree reveals that the learned Chairman did not resolve any Of the framed issues. He did not declare the lawful owner of the disputed land, no answer as to whether the respondents were trespassers or not, and no reliefs were awarded to any party. In the case of Said Mohamed k Muhsin Amir and Another (supra), the Court of Appeal held that a decision of the court should be based on the issues which are framed by the court in consultation with the parties, and failure to do so results in a miscarriage of justice. Order XX, Rule 4 of the Civil Procedure Code enshrines the principle that every judgment should contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. 7 The same provision has been echoed under Regulation 20 (1) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, 2002. In the present case, the tribunal's judgment contains the points for determination but the learned Chairman did not indicate the findings on each issue and the decision thereof. This is a serious irregularity that vitiated the trial tribunal's judgment. In Ahwor ShariffJamal k Bahadur Ebrahim Shamji, Civil Appeal No. 25 of 2006, the Court of Appeal at Dae es Salaam held that a Judge is obliged to decide on each and every issue framed. Failure to do so constitutes a serious breach of procedure. In light of the above, this court finds that the trial Chairman made a fatal error in failing to make specific findings on each issue. The determination of this ground disposes of the entire appeal since I have found that the issues before the trial tribunal were not determined. It follows that I have no base for continuing to address the rest of the grounds, most of which are concerned with the merits of the case and they have not yet been resolved by the tribunal. Consequently, I allow the appeal. I quash the judgment of the trial tribunal and set aside the resultant decree. I further order that the case be remitted to the District Land and Housing Tribunal for Nzega for it to proceed with its determination according to law if the parties are still interested. As the error was committed by the tribunal, each party shall bear his own costs. It is so ordered. KADILU, M. J. JUDGE 06/02/2025 8 Judgment delivered in chamber on the 6th day of February 2025 in the presence of Mr. Akram Magoti, Advocate for the appellant, and Mr. Edward Malando, Counsel for the 1st respondent. DILU, M. J. JUDGE 06/02/2025 9