Land Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

AT DAR ES SALAAM (LAND DIVISION) LAND APPEAL NO. 20254 OF 2024. (Arising from Land Application number 14 of 2021, delivered at Mkuranga District land and Housing Tribunal on 19th June 2024) IDD ABDALA NDALO....................................................... APPELLANT

VERSUS PILI HAMIS MILAMBO.......................................... 1st RESPONDENT ABDU LIBELA........................................................ 2nd RESPONDENT

JUDGMENT Date of last Order: 25/11/2024 Date ofJudgment: 29/11/2024 LALTAIKA, J, The Appellant herein IDD ABDAL NDALO is dissatisfied with the decision of the District Land and Housing Tribunal for Mkuranga (the DLHT) in Land Application No. 14 of 2021. He has appealed to this Court by way of a Memorandum of Appeal containing the following grounds: 1. That the trial Tribunal erred in Law and fact by failure to consider that the application by the 1st respondent was filed out of time in terms of paragraph 6 of the schedule to the law of limitation Act CAP 89 R.E 2019.

2. That the trial tribunal erred in law and fact by allowing the 1st respondent application without any prove brought in court as to how Page 1 of 12 he acquired the land in dispute, as the oral contract was required to be proved by witness who were present; even though the tendered evidence is not in agreement with pleading without any legal justification.

3. That the trial tribunal erred in Law and fact by failure to analyses, evaluate parties evidence, failure to give reasoning of the trial tribunal prior arriving to the decision which lead miscarriage of justice.

4. That the trial Tribunal erred in law and fact by allowing the unauthorized advocate to represent the 1st respondent at the hearing of the appHcant/lst respondent case without any legal justification.

5. That the trial Tribunal erred in law and fact by allowing the 1st respondent application with cost without considering that the said application was under legal aid.

6. That the trial Tribunal erred in law and fact by failure to give dear description on the site visit, that which method was applied to get the measurement prior considering the issue that the appellant has trespassed into 1st respondent's land. When the appeal was called for mention on 21/10/2024, parties opted for hearing by way of written submissions. With a nod of approval by this Court, the following schedule was accordingly ordered: Appellant's submission in chief: 4/11/2024 Respondent's Reply: 18/11/2024 Appellant's rejoinder if any: 25/11/2024, mention for necessary orders to fix the date of Judgment: 25/11/2024. Representation by Counsel, as per the records, was as follows: Alex Enock, Advocate for the Appellant, Peter Nyangi, Advocate, for the Respondents. I take this opportunity to register my commendations to counsel for their spotless compliance with the scheduled order. This sense of time Page 2 of 12 management which is growing among Counsel in this country is essential for enabling this Court to fulfil its Constitutional mandate of timely dispensation of justice. The next part of this Judgment is a summary of submissions by both parties, my analysis of the law and the verdict. Mr. Enock, Counsel for the Appellant, began by addressing the fourth ground of appeal, contending that the trial tribunal erred in allowing Victor Joseph to represent the applicant, who

is the respondent in Land Application No. 14 of 2021, as an advocate, despite being unqualified to perform such duties. The learned Advocate cited Section 39(1) of the Advocates Act, CAP 341 R.E. 2019, to argue that Victor Joseph lacked the requisite qualifications, including a valid practicing certificate, during the year 2021. Mr. Enock referred to Section 41(1) of the same Act, which explicitly prohibits unqualified individuals from acting as advocates. He emphasized that all proceedings conducted by the said advocate should be expunged from the court record. To reinforce his argument, he cited the cases of NIC Bank Tanzania Ltd v. Princess Shahaba Co. Ltd, Civil Application No. 502 of 2016, and Rafii Said Mpendu v. Adam Ally Mkalapema, Civil Application No. 603/17 of 2021. Page 3 of 12 Turning to the first ground of appeal, Counsel submitted that the trial tribunal failed to consider that the application was filed out of time. He argued that under Paragraph 6 of the Schedule to the Law of Limitation Act, CAP 89 R.E. 2019, a trespass claim must be filed within three years, yet the respondent discovered the alleged trespass in 2010 but filed the claim in 2021. He contended that there was no proof to substantiate the respondent's claim of referring the dispute to another tribunal. On the second ground, Counsel contended that the trial tribunal erred by accepting the

respondent's application without sufficient proof of how the land in dispute was acquired. He referred to Section 110(1) and (2) of the Evidence Act, CAP 6 R.E. 2019, which places the burden of proof on the party asserting a fact. Citing Hemed Said v. Mohamed Mbilu [1984] TLR 113, he argued that the respondent failed to prove ownership of the land and that the oral contract alleged by the respondent required corroboration from witnesses, which was not provided. Addressing the third and sixth grounds, Counsel argued that the trial tribunal failed to analyze and evaluate the parties' evidence and did not provide sufficient reasoning in its judgment. He pointed out that the judgment omitted consideration of the appellant's evidence and failed to Page 4 of 12 explain how the tribunal reached its decision. He cited Abubakari I.H. Kilongo and Another v. Republic, Criminal Appeal No. 230 of 2021 to reinforce his argument. Mr. Enock strongly criticized the trial tribunal for conducting a site visit without proper documentation and for failing to adhere to Regulation 20(1) of the Land Disputes Courts (District Land and Housing Tribunal) Regulations, 2003, which mandates the consideration of evidence and reasoning in composing judgments. Regarding the fifth ground, Counsel submitted that the tribunal failed to consider the parties’ pleadings, resulting in a decision not based on the

pleadings. He argued that awarding costs to the respondent, despite the applicant being under legal aid, was improper. In conclusion, Counsel prayed for the court to nullify the proceedings conducted by the unqualified advocate, quash the trial tribunal's judgment and decree, and allow the appeal with costs. Mr. Nyangi, Counsel for the Respondents, started by addressing the claim that the trial tribunal erred in allowing Victor Joseph to represent the Applicant (the First Respondent) as an advocate, despite being unqualified for such duties. Page 5 of 12 He clarified that the said Victor Joseph did not represent the First Respondent and that the representation was instead undertaken by Advocate Peter Nyangi, as evidenced in the tribunal's judgment on page 5, paragraph 2. He further argued that the Appellant did not raise any preliminary objection regarding the capacity of the advocate at the trial stage. Therefore, he submitted that raising this issue for the first time at the appellate level was prohibited by law and prayed that this ground of appeal be dismissed with costs. On the first ground of appeal, Mr. Nyangi submitted that it was untrue that the matter was time-barred. He argued that the dispute concerned ownership of land, which under Clause 22, Part I of the Schedule to the Law of Limitation Act, Cap. 89 R.E. 2019, is limited to 12 years. He explained that the cause

of action arose in 2010, and the limitation period would have elapsed in 2022. Since the suit was filed within the prescribed time, Counsel contended, this ground of appeal lacked merit and should be dismissed with costs. Addressing the second ground, he stated that the First Respondent had sufficiently proved ownership of the disputed land, which was purchased from the Second Respondent. He added that the Second Respondent, who sold the land to both the Appellant and the First Page 6 of 12 Respondent, admitted this fact during testimony. He argued that the Appellant had trespassed onto the First Respondent's land and cultivated it without permission. He maintained that this ground was baseless and should also be dismissed with costs. Regarding the third and sixth grounds of appeal, Mr. Nyangi submitted that the trial tribunal had not failed to analyze or provide reasons for its decision. He argued that the tribunal had based its decision on evidence from both parties and a site visit to the disputed property. He explained that the Second Respondent, as the seller of the land to both parties, was a necessary party in the proceedings to clarify the boundaries during the transactions. He asserted that these grounds lacked merit and prayed for their dismissal with costs. On the fifth ground of appeal, he denied that the trial tribunal's decision was based on matters outside the

pleadings. He submitted that the Appellant had introduced irrelevant arguments during the appeal and requested the court to disregard them. He added that the First Respondent was not under legal aid during the trial and was represented by Advocate Peter Nyangi, as evidenced in the tribunal's judgment. Page 7 of 12 Mr. Nyangi further cited Section 45 of the Land Disputes Courts Act, Cap. 216 R.E. 2019, which precludes appellate courts from reversing or altering decisions of tribunals based on errors, omissions, or irregularities unless such issues caused a miscarriage of justice. He contended that the Appellant had not demonstrated any such failure of justice in this case and that the evidence presented at trial was sufficient to justify the tribunal’s decision. He concluded by asserting that the authorities cited by the Appellant in support of the appeal were irrelevant and reiterated the Respondents' prayer for dismissal of the appeal with costs. Mr. Enock, in rejoinder, began by addressing the fourth ground of appeal, asserting that the trial tribunal proceedings on pages 3 and 4 clearly showed that Victor Joseph appeared for the First Respondent, while Jacquiline Kayombo represented the Appellant. He emphasized that a judgment is merely a summary of the proceedings, and the accurate record can be verified from the tribunal proceedings. Mr. Enock further contended that the

Respondents had not challenged the case law cited by the Appellant, specifically referencing NIC Bank Tanzania Ltd v. Princess Shabaha Co. Ltd, (Supra) and Rafii Said Mpendu v. Adam Ally Mkalapema Page 8 of 12 (Administrator of the Estate of the Late Ali Mkalapema) & Others, (Supra). He maintained that the proceedings and judgment of the trial tribunal, being based on what he described as illegal proceedings, ought to be nullified with costs. Counsel reiterated the arguments previously advanced in the submission in chief with regards to the rest of the grounds of appeal. I have dispassionately considered the rival submissions and keenly examined the trial Tribunal's records. The appeal raises the following issues for determination: 1. Whether the proceedings of the trial tribunal were tainted with illegality due to alleged improper representation of the First Respondent.

2. Whether the claim before the trial tribunal was time-barred.

3. Whether the trial tribunal erred in its analysis and evaluation of evidence, particularly in describing the disputed land.

4. Whether the trial tribunal's decision was based on errors or omissions amounting to a miscarriage ofjustice. I will move on to address each of these issues in seriatim. On the first issue, the Appellant argued that the trial tribunal proceedings were vitiated by the participation of an unqualified individual, Victor Joseph, representing the First Respondent. This contention was based on pages 3 and 4 of the tribunal proceedings. However, Counsel for the Page 9 of 12 Respondents, Mr. Nyangi, refuted this claim, asserting that he represented the First Respondent, as evidenced by the tribunal's typed judgment. I have noted that the Appellant did not raise this issue as a preliminary objection at the trial stage, nor was it part of the issues framed for determination by the tribunal. It is a settled principle of law that appellate courts should not entertain issues not raised at the trial stage unless they involve a jurisdictional defect or a matter of public interest (see NIC Bank Tanzania Ltd v. Princess Shabaha Co. Ltd, Civil Application No. 502 of 2016). This is an attempt albeit futile, to vitiate the tribunal's records probably having chanced from other public databases that the said Advocate was not in "good standing" in 2021. On Time Limitation, I concur with the Respondents that the dispute was about ownership and not trespass. Section 22, Part I of the Schedule to the

Law of Limitation Act, Cap. 89 [R.E 2019], prescribes a twelve-year limitation for land ownership claims. This is consistent with the Respondents' submissions that the cause of action arose in 2010 and that the claim was filed in 2021, within the prescribed period. The Appellant's reliance on the tort limitation period is misplaced. Accordingly, this ground of appeal also fails. Page 10 of 12 Coming to the third issue of description and proof of the disputed Land the Appellant argued that the trial tribunal erred by failing to describe the disputed land and determine its boundaries. However, the Respondents countered that the tribunal's decision was based on evidence adduced by the parties and a site visit to the disputed property. The tribunal's judgment referenced this site visit and the testimony of the Second Respondent, who confirmed selling portions of the land to both the Appellant and the First Respondent. I am fortified that the trial tribunal's judgment and proceedings reflect that the evidence was duly considered, and the site visit provided clarity on the disputed property. The Appellant's claim that the tribunal failed to describe the land is unsupported by the record. On the fourth issue, the Appellant asserted that the trial tribunal's decision was tainted by procedural errors and omissions, resulting in a miscarriage of justice. However, Section 45 of the Land

Disputes Courts Act (supra) provides that no decision or order shall be reversed or altered on appeal due to any error or irregularity unless it has occasioned a failure of justice. In the present case, the Appellant failed to demonstrate any procedural irregularity that materially affected the outcome of the trial. Page 11 of 12 In the upshot, I find no merit in the appeal. The appeal is dismissed with cost. It is so ordered. E.I. LALTAIKA

JUDGE 29/11/2024 Court: Judgment delivered in Court Chambers this 29th day of November 2024 at 15:00 in the presence of Mr. Peter Nyangi, learned Advocate for the Respondents and in the absence of the Appellant and/or his Advocate. Page 12 of 12