Hawa Amil

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA LAND APPEAL NO. 73 OF 2023 (Arising from Land Application No. 5 of2020 District Land and Housing Tribunal for Muleba) HAWAAMIL....................... ............... ................................. APPELLANT VERSUS abdulswAmadu ABDULNURU SWABURI (Administrator of estate of ABDUNURU SWABURI)....,..,.... . RESPONDENT JUDGMENT 2nd and 19tn Ju|y/ 2024 BANZI, J.: Before the District and Housing Tribunal for Muleba (the trial tribunal)/ the respondent sued the appellant and Elipidius Faustina who is not a party to this appeal claiming that, the duo encroached his land measuring 38 X 38 paces (the suit land) which he acquired by way of purchase from Yusuph Rashid on 26th July, 1981. On the other hand, the appellant denied the claim and contended that, the sale agreement attached by the respondent was not genuine. After receiving the evidence from both sides, the trial tribunal decided in favour of the respondent by declaring him as the lawful owner of the suit land. Likewise, the appellant and Elipidius Faustina were declared as trespasser and Elipidius Faustina was ordered to demolish any development Page 1 of 18 made on the suit land. Aggrieved with that decision, the appellant preferred this appeal with four grounds thus: 1. THA Tr the trial tribunal erred in law and in fact as it did not consider both oral and documentary evidence presented by the Appellant as a result of unfair decision (sic). 2. THAT, the trial tribunal erred in iaw and in fact failure (sic) to record and consider assessors opinion. 3. THAT; the trial tribunal misdirected itself to decide in favour of the respondent without anyjustifiable reasons as proof of ownership by the Respondent. 4. THA T; the trial tribunal erred in iaw to consider the sale agreement presented by the Respondent the contract Which lacked legal requiremen t. At the hearing, both parties were unrepresented whereas, Mzamiru Yunusu Mussa appeared in person on behalf of the appellant under the power of attorney duly registered on 29th April, 2024 and Abdulswamadu Abdulnuru Swaburi, appeared as the administrator of the estate of the late Abdunuru Swaburi who died on 16th February, 2024. The appeal was argued orally. Page 2 of 18 Arguing in support of the first ground, the appellant submitted that, the oral evidence of the appellant and her witnesses was not considered at all. Likewise, the documents attached with the written statement of defence were not considered at all including the judgment of Bureza ward tribunal where the respondent was the witness in case of Isiaka Juma vs Shemusi Amiry and Hawa Amiry. He added that, the boundaries mentioned by the respondent were not found when the trial tribunal visited the locus in quo and thus, the evidence of the appellant before the trial tribunal proved that, the suit land is.owned by the appellant. In respect of the second ground, he argued that, the chairman failed to record the opinion of assessors in the judgment and neither did he give reasons for departing from such opinion. Reverting to the third ground, he submitted that, the decision of the trial tribunal was unjustified because, the respondent failed to call Yusuph Rashid, the person who is alleged to sell his land to him. For the last ground, he contended that, the trial tribunal failed to evaluate the validity of the sale agreement which did not indicate the size of the sold land. He added that, there was contradiction between the sale agreement and the evidence of the respondent on the year when the land was sold. According to the agreement, it was sold in 1981 while the respondent said he bought the suit land in Page 3 of 18 1982. In that regard, he prayed for appeal to be allowed by quashing the decision of the trial tribunal. In response, respondent submitted that, the trial tribunal considered the evidence of both parties before reaching into fair decision as reflected at page 10 to 13 of the judgment. Also, the judgment of Bureza ward tribunal was considered. In respect of the second ground, he responded that, the opinion of assessors was recorded and the same was read over in the presence of both parties. Besides, the chairman gave reasons for departing from such opinion. He cited the case of Tubone Mwambeta vs Mbeya City Council [2018] TZCA 392 TanzLII to support his submission. Responding to the third ground, he submitted that, the evidence of the respondent was considered. Inversely, the appellant neither called the witness who drafted the agreement alleged to be destroyed by fire nor did she call the witnesses to the alleged sale transaction. Apart from that, she failed to produce any document like loss report to substantiate the alleged fire which destroyed her agreement. In that regard, the respondent had a better title because according to paragraphs 943, 945 and 946 of Haya Customary Law codified by Cory and Hartnoil 1945, when two persons fight over a piece of land, the person with sale agreement is considered to have a better title. She cited the case of Amina Maulid Am ba I i and Others vs Page 4 of 18 Ramadhani Juma [2021] TZCA 186 TanzLII to support his point. Concluding with the fourth ground, he argued that, the sale agreement met the legal requirement and the same was admitted without objection. Responding to the complaint concerning failure to call Yusuph Rashid, he contended that, the said Yusuph attended three sessions but the case was adjourned and Unfortunately, he passed away before he could give his testimony. In that view, he prayed for this appeal to be dismissed with costs. In his rejoinder, the appellant contended that, there is no proof about Yusuph Rashid to have died before he could give his testimony. Thus, he reiterated his chief submission and urged this court to allow the appeal with costs by quashing the decision of the trial tribunal. Having examined grounds of appeal, the submissions by both parties and the evidence of on record, the main issue is whether the appeal is meritorious. It is worthwhile noting here that, this court being the first appellate court, it has the duty to re-evaluate the evidence of the trial tribunal and where possible, to come out with its own findings. See the case of Domina Kagaruki vs Farida F. Mbarak and 5 Others [2017] TZCA 160 TanzLII. Pages of 18 Starting with the second ground, it is the contention .of the appellant that, the opinion of assessors was not recorded in the judgment and the chairman did not give reason for differing with such opinion. It is worthwhile to underscore that, for the District Land and Housing Tribunal to be properly constituted in terms of section 23 (1) (2) of the Land Disputes Courts Act [Cap. 216 R.E. 2019] ("the Land Disputes Courts Act"), the Chairman must sit with at least two assessors who are mandatorily required to give out their opinions before the chairman composes the decision of the tribunal. Regulation 19 (2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 ("the Regulations") governs the manner upon which the assessors are required to give their opinion. The same provides as hereunder: "Notwithstanding sub-regulation (1), the chairman shaft, before making hisjudgment, require every assessor present at the conclusion of the hearing to give his opinion in writing and the assessor may give his opinion in Kiswahiii."(Emphasis supplied). According the extract above, it is the requirement of the law for chairman to require every assessor to give his opinion before the judgment is composed. It is also the requirement of the law for such opinion to be in writing. Regulation 19 (2) of the Regulations was interpreted by the Court of Page 6 of 18 Appeal of Tanzania in the case of Edina Kibona vs Absolom Swebe (Shell) [2018] TZCA 310 TanzLII where it was stated that, 'We wish to recap at this stage that in trials before the District Land and Housing Tribunal, as a matter of law, assessors must fully participate and at the conclusion of evidence/ in terms of Regulation 19 (2) of the Regulations, the Chairman of the District Land and Housing Tribunal must require every one of them to give his opinion in writing. It may be in Kiswahiii. That opinion must be in the record and must be read to the parties before the judgment is composed"(Emphasis added). It is apparent from the extract above that, before the Chairman composes the judgment, the following things must be strictly complied; one, he must require every one of the assessors to give his opinion; two, such opinion must be in writing and three, must be given in the presence of the parties so as to enable them to know the nature of the opinion and whether or not such opinion has been considered by the Chairman in the final verdict. Likewise, section 24 of the Land Disputes Courts Act provides that: "In reaching decisions, the Chairman shall take into account the opinion of the assessors but shall not be bound by it, except that the Chairman shall in the judgment give reasons for differing with such opinion." Page 7 of 18 According to the extract above, the law requires the chairman to take into account the opinion of assessors and though not bound by it, he must give reason for departing from such opinion. In the matter at hand, the proceedings of the trial tribunal reveal that, after visiting the locus in quo, the chairman set the date for receiving the opinion of assessors. The proceedings further reveal that, on 5th May, 2023, the assessors gave their opinion by reading the same to parties who were present. Also, the record reveals that, both parties were asked and confirmed to have heard the opinion that was read over to them. In addition, the written opinion duly signed by each assessor is within the original case file. Apart from that, after evaluating and analysing the evidence of both parties, the chairman at page 13 of his judgment had this to say: "Kwakuwa utetezi haukuleta uthibitisho na kuonyesha kuwa eneo lililotelekezwa ni hiiohiio, nakubaiiana na madai haya na hivyb kwa sababu hizo hapojuu, sikubaUani na maoni ya wajumbe niliokaa nao kwenye shauri hili ambao ni PASTORY IHINDUKA JUVENARY na JUSTUS MUTALEMWA ambao waliotoa ushauri kwamba mdaiwa Na. 1 ni mmiiiki wa eneo ia mgogoro hivyo aliuza kihalali eneo lake kwa Mdaiwa Na. 2. Kwa uchambuzi wa ushahidi niiioeieza hapo juu, sikubaUani na maoni hayo kwa sababu ushahidi Page 8 of 18 aliouleta mdai ni mzito ukilinganisha na utetezi unaoegemea maamuzi ya shauri Na. 14/2010- Baraza !a Kata Bureza. "(Emphasis supplied). The extract above speaks for itself. The chairman explained why he was differing with the opinion of assessors. His reasons were banked by his analysis and evaluation of evidence which concluded that, the evidence of the applicant was heavier than the evidence of the first respondent/appellant. Besides, the law does not require the chairman to reproduce the opinion of assessors in his judgment as contended by the appellant in his submission. In that regard, the second ground lacks merit. Reverting to the first, third and fourth grounds which will be determined jointly, the appellant contended that, her evidence was heavier than the evidence of the respondent. In addition, she blamed the chairman for not evaluating the evidence on record. Also, she challenged the validity of the sale agreement produced by the respondent. It is prudent to underscore that, a person with heavier evidence is the one who should win the case. This was stated in the case of Hemedi Saidi vs Mohamedi Mbilu [1984] TLR113 where it was held that: ''According to law both parties to a suit cannot tie, but the person whose evidence is heavier than that of the other is the one who must win." Page 9 of 18 In our case, the learned chairman before reaching into conclusion that, the evidence of the respondent was heavier than the evidence of the appellant, he made a thorough analysis and evaluation of evidence of both sides. The analysis is found from page 10 to 13 of the judgment. Thus, the complaint by the appellant that her evidence was not considered is unfounded. As alluded above, this being the first appellate court it has the duty to re-evaluate the evidence of the trial tribunal and where possible, to come out with its own findings. At the trial tribunal, the respondent relied on oral and documentary evidence to prove his ownership over the suit land. According to the testimony of SMI (Abdulswamadu Abdulnuru Swaburi), on 26th July, 1981, the respondent bought the suit land from Yusuph Rashid. He further produced the sale agreement which was admitted as Exhibit Pl. He explained the persons who are bordering with the suit land; Galacian Celaphion on the eastern side, Abdunuru Swaburi on the western side, Lugoni Kibogo on the northern side and Arajabu on the southern side. His evidence is supported by Bartazari Aniceti (SM2) who was the author of Exhibit Pl. According to his testimony, the respondent bought the suit land on 26th July, 1981 for consideration of Tshs.5,000/= and he mentioned the same neighbours who are bordering the suit land. Moreover, Ibrahim Page 10 of 18 Hussein (SM3) confirmed that, it was his brother, Yusuph Rashid who sold his suit land to the respondent. Lastly, Isiack Juma Kikamba (SM4) stated that, the respondent bought the suit land which was near the mosque. He admitted to have a case against the appellant starting from 2010 to 2016 or 2017 after the appellant invaded into the land owned by mosque but at the appellate stage, everything was nullified and parties were directed to sue the board of trustees. According to him, the suit land is different with the land he litigated with the appellant. On the other side, the appellant (SU1) testified that, the suit land belongs to her after she bought it from Mzee Issa but her documents concerning purchasing the said land were destroyed by fire which burnt her house. According to her testimony, she does not remember when she bought the suit land and when her house was destroyed by fire. She also admitted to have lost in the case against SM4 at High Court. To support her assertion, the appellant brought four witnesses; Issa Kahangwa Kinyonyora (SU2), Deogratius Pastory (SU3), Muzamilu Yunusu (SU4) and Lilian Rutakwa (SU5). SU2 admitted to know the respondent who bought piece of land at Makalwe village. According to him, the suit land belonged to him and later, he was sued by SM4 on the allegation that, the land belongs to the mosque. In that case, the respondent testified for SM4. He further admitted to witness and Page 11 of 18 signed on the sale agreement when the respondent bought his land. Also, he admitted that, the Suit land was sold to the appellant by Mohamed and he was just supervising the transaction. On his side, SU3 stated that, the suit land is the property of the appellant who bought it from SU2 (the ten ceil leader by then) in 1989. He claimed to witness the sale agreement between SU2 and the appellant. The evidence of SU4 reveals that, the land in dispute was bought by his mother, the appellant in 1989. He further stated that, in 2010 when the appellant litigated at Bureza ward tribunal over the same land, the respondent testified for SM4 and he was wondering why he is now claiming for ownership of the said land. He admitted that, the 2010 judgment was quashed at the High Court. In 2017, the appellant executed the judgment of the ward tribunal of 2010. According to SU5, the suit land belongs to the appellant who sold it to Elipidius Faustine in 2015. She also claimed to hand over the suit land to the appellant in compliance of execution order issued in 2017. From the evidence of both sides, it is apparent that, the respondent apart from giving oral testimony on how he acquired the suit land, he tendered the sale agreement (Exhibit Pl) to corroborate his evidence. Each evidence shows that, he bought the suit land on 26th July, 1981 for Tshs.5,000/=. Besides, he brought SM2 who is the author and witness to Page 12 of 18 the agreement in question. According to him, the agreement was also witnessed by SU2 who, at page 56 of the proceedings, confirmed about that fact of witnessing the sale agreement involving the respondent. If the transaction in question did not take place on the 26th July, 1981 as alleged by the appellant, why SU2 who was called by the appellant, confirmed about witnessing the said transaction? This in itself is a clear indication that, the respondent bought the suit land and the agreement was authored by SM2 and witnessed by SU2. Concerning the validity of Exhibit Pl, it is undisputed that, the same is a homemade agreement drawn by layman which exhibited the transaction that occurred on 26th July, 1981 between Yusuph Rashid and the respondent. It is drawn by lay person without using any legal language and thus, this court cannot interpolate it with any technical legal concept. Moreover, it expressed the intention of the vendor, Yusuph Rashid to sell his land to the purchaser, Abdunuru Swaburi for a consideration of Tshs.5,000/=. In the case of Philipo Joseph Lukonde vs Faraji Ally Saidi [2020] TZCA 1779 TanzLII, the Court of Appeal was inspired by the decision of the Court of Appeal of Kenya, in Michira vs Gesima Power Mills Ltd [2004] eKLR where it was stated that: Page 13 of 18 "...That fact does not give room to this Court to tamper with the agreement. AsApoioo, J.A. said in SHAH V. SHAH [1988] KLR 289 at page 292 paragraph 35, in respect of an agreement drawn by laymen: One must bear in mind that this agreement was drawn up by laymen. They did not use any legal language and the court can only interpret the sense of their agreement and not interpolate it with any technical legal concept..... If the words of the agreement are clearly expressed and the intention of the parties can be discovered from the whole agreement then the court must give effect to the intention of the parties. " Applying the position of the law above in our case, Exhibit Pl clearly expressed the intention of parties in their transaction made on 26th July, 1981. Besides, it described the neighbours who are bordering with the suit land i.e., Garatian, A. Saburi, Rugoli Kibogo and Arajab Rashid, The same persons were also mentioned by SMI, SM2 and SM3. In that regard, even if the respondent did not call the vendor, Yusuph Rashid to testify, that in itself, cannot be used to invalidate Exhibit Pl or to discredit the evidence of the respondent considering that, he brought SM2, the author of the agreement in question. Besides, it is on the testimony of SM3 that, his brother Yusuph Rashid passed away since 2021. Nonetheless, Exhibit Pl did Page 14 of 18 not require oral testimony of the vendor to prove ownership because, it speaks for itself and as stated under section 61 of the Evidence Act [Cap,6 R.E. 2022], oral evidence cannot prove the contents of documents. Thus, exhibit Pl being drawn by lay person is valid in the eyes of law. I now turn to the complaint raised by the appellant in respect of contradiction on the year of purchase between the evidence of SMI which shows 1982 and Exhibit Pl which indicates 1981. I have carefully perused the testimony of SMI and the contents of Exhibit Pi. According to Exhibit Pl, the sale in question was conducted on 26th July, 1981. Likewise, SMI at page 28 of the proceedings testified that: "Mlalamikaji aiinunua eneo hi/o kutoka kwa Yusuph Rashidj, IHkuwa tarehe 26.7.1981 ndipo mlalamikaji aiiponunua eneo hiio." It is obvious from the excerpt above that, SMI in his testimony, mentioned 1981 as the year of purchasing the suit land which is the same year indicated in Exhibit Pl. The complaint by the appellant is based on page 3 of the judgment where the learned chairman summarised the testimony of SMI. Since SMI under oath mentioned 1981 as the year of purchase, in my view, the year 1982, found at page 3 of the judgment, is just a typing error. Had it been in his testimony, the complaint by the appellant would be Page 15 of 18 considered. In that regard, there is no contradiction between the evidence of SMI and exhibit Pl on the year when the respondent purchased the suit land. Reverting to the evidence adduced by the appellant, it is her testimony that, she purchased the suit land from Mzee Issa. However, unlike the respondent, she did not state when she bought the said land. Likewise, SU2 who is alleged to be the vendor, did not state when he sold his land to the appellant. Since there was no documentary evidence to support the sale in question, it was necessary for oral testimony of the vendor and purchaser to indicate the day of the alleged sale. Apart from that, the appellant contended that, her agreement was destroyed by fire. If that was true, it was expected for her to produce even the loss report to support her assertion but that was not the case here. Furthermore, the appellant did not tender the judgment in respect of Land Case No. 14 of 2010 but rather, she just attached it with her pleadings. It is trite law that, attachment to the pleading that was not produced and received as exhibit in court, cannot be considered because it is not part of evidence. Besides, it is on record through the testimony of SM4, Sill, SU2, SU3 and SU4 that, when the matter reached at the High Court on appellate stage, everything was nullified in respect of Land Case No. 14 of 2010 Page 16 of 1.8 because since the land in dispute involved mosque, the case was supposed to be instituted by board of trustees instead of SM4. Therefore, the appellant cannot bank on something that was already nullified to establish her ownership on the suit land. Nonetheless, it is settled law that, the one who wants the court to believe his assertion, must prove that assertion. See section 110 (1) of the Evidence Act. Also, in the case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha [2019] TZCA 453 TanzLII it was stated: "It is trite iaw and indeed elementary that he who alleges has a burden of proof as per section 110 of Evidence Act, [Cap 6 R.E. 2002]. It is equally elementary that since the dispute was in civil case, the standard ofproof was on a balance of probabilities which simply means that the Court will sustain such evidence which is more credible than the other on a particular fact to be proved. "(Emphasis supplied). Weighing the evidence of the respondent against the evidence of the appellant, I am constrained to agree with the learned chairman that, the evidence of the respondent was heavier than the evidence of the appellant. That is to say, the evidence adduced by the respondent was more credible than the one adduced by the appellant. Therefore, it is the finding of this court that, through his testimony, testimony of SM2, SM3 and SM4 as well Page 17 of IS: as Exhibit Pl, the respondent proved on the required standards on how he acquired the suit land by way of purchase from Yusuph Rashid. This concludes the first, third and fourth grounds which are also dismissed for being unmerited. Having said so, I find no speck of merit on the appeal and it is hereby dismissed. Consequently, the decision of trial tribunal is hereby upheld. Since parties are neighbours, each party shall bear its own costs. It is so ordered. I. K. BANZI JUDGE 19/07/2024 Delivered this 19th day of July, 2024 in the presence of the appellant, the respondent, Mr. Audax V. Kaizilege, Judge's Law Assistant and Ms. Peace Musasa, RMA. Right of appeal duly explained. I. K. BANZI JUDGE 19/07/2024 Page 18 of 18