iddi hassan mbilu vs waziri saidi kaanga 2020 tzhc 563 2 march 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF TANGA AT TANGA LAND APPEAL N0.25 OF 2018 (From the decision of the District Land and Housing Tribunal of Lushoto District at Lushoto in Land Case No. 17 of 2016 IDDI HASSAN MBILU ................................................... APPELLANT (Administrator of the estate of theLate Zahoro Abdallah Saidi) VERSUS WAZIRI SAIDI KAANGA............................................. RESPONDENT JUDGMENT MRUMAJ. The Appellant Iddi Hassan Mbilu (As the Administration of the estate of the late Zahoro Abdallah Saidi) was an unsuccessful party in the District Land and Housing Tribunal of Korogwe at Korogwe in Land Application number 17 of 2016 against the Respondent herein Waziri Saidi Kaanga. Aggrieved by the decision of the District Land and Housing Tribunal, the Appellant has appealed to this court to have the decision of the District Tribunal quashed and set aside. His action in the District Tribunal was to recover about 4 acres of land at Bombo Village Kibughai Street (formerly known as Ubiri Ward). The Appellant's case was that the late Zahoro Abdallah was declared lawful owner of the disputed land in Civil Cause No. 26 of 1983 of Dochi Primary Court which decision was confirmed by the District Court of Lushoto in i District Court Civil Appeal No. 35 of 1983. It was further statement of the Appellant that the late Zahoro Abdallah heirs lived in the disputed land since 1983 up to 2010 whereby trespassers filed multiple cases claiming ownership of the disputed land. For instance in 2010 the Respondent instituted Land Dispute number 10 of 2010 at Ubiri Ward Tribunal against one Fadhili Ally who had no locus standi. The proceedings were nullified by the District Land and Housing Tribunal in Land Appeal No.42 of 2010. Furthermore it was the Appellant's statement that despite the nullification of the Ward Tribunal's proceedings, the Respondent had trespassed onto the suit land claiming that he was the rightful owner thereof. The Appellant's evidence before the trial tribunal was that in Civil Cause No. 26 of 1983 of the Primary Court of Dochi at Lushoto Zahoro Abdallah (deceased) emerged the winner and therefore he was decree holder. In the process of execution of his decree, he filed a bill of costs proceedings and the judgment debtor Musa Saidi @ Mkanga was ordered to pay (the taxed bill of costs) where his land was sold and the decree holder bought it. Thus, according to the Appellant the late Zahoro Abdallah acquired the suit land through purchasing it in a public auction ordered by the court following the Respondent's failure to pay for the amount which was taxed in the bill of costs proceedings. His witnesses, Mujibu Zahoro (PW7) and Mwanahawa Hassan gave different versions of the story of the same Land and they didn't support the Appellant own contention that the late Zahoro Abdallah acquired the suit land by purchasing it in a court ordered public auction. The evidence of Mujibu Zahoro (PW2) was to the effect that the Respondent Waziri Said Karanga started to claim ownership of the suit land in 2010 immediately after the death of their father (i.e. Zahoro Abdallah). On her part Mwanahawa Hassani (PW3) told the trial tribunal that they were cultivating the suit land with her husband the late Zahoro Abdallah since 1984 and the Respondent started to claim it in 2010 after Zahoro Abdallah had passed away. On the other hand the Respondent said in his evidence that originally the suit land belonged to one Mussa Saidi who inherited it from his father one Said Kaanga in 1960s. In 1984 he was present but he never heard about attachment and sale of the suit land. He said that he was born there and he still lives on that land. The Respondent was supported in his evidence by Marko Kaanga (DW1) who testified that what he knows is that the suit land belongs to Mussa Saidi Kaanga who inherited it from his father Saidi Kaanga in 1960. He said that Musa Saidi Kaanga and Zahoro Abdallah each had 4 acres and they have been living on their respective land peacefully and as a family since 1960. He said that he was not aware ofany court order which ordered the suit land to be sold. It is apparent that the trial tribunal properly construed the evidence. The Judgment of the Primary Court of Dochi in Civil Cause No.26 of 1983 which was tendered in evidence did not award any costs to any of the parties. Indeed none of the witnesses of the Appellant or of the Respondent ever said or tendered in evidence the award in bill of costs which would have exhibited the amount taxed as bill of costs. To the contrary the Appellant attached to his pleadings a piece of paper prepared by the late Zahoro Abdallah containing itemized list of activities against costs allegedly incurred. There is nothing to indicate that the said document was presented in any court for determination. Another document relied on by the Appellant is a letter written by the late Zahoro Abdallah and addressed to Dochi Primary Court dated 13/4/1984 with the heading: "Kuhusu Shauri Na.26/83. Ndugu Hakimu wa Mahakama ya Mwanzo ninaomba hati ya ufirisiambayo itahusu madai ninayo mdai ndugu Musa Saidi na Mohamed Saidi gharama za shauri namba 26/83 jumla shs. 10,460/= Jumla kila mmoja angenilipa shs.5,230/= Naomba hati hiyo ya firisi kuanzia leo 13/4/84. Ni matumaini yangu kuwa utanisidia. Sgd:- Zahoro Abdallah There is also a letter from the office of the District Commissioner of Lushoto addressed to Ward Executive Officer of Ubiri requesting him to assist in execution of a court order. Then there is a letter written by the Ward Executive Officer of Ubiri Ward to the Magistrate of Dochi Primary Court purporting to show that execution has been done by attaching a farm (2 acres), two she cows and a calf. No court order was exhibited. In the circumstance, I agree with the trial tribunal that there was no evidence that the Appellant did acquire the disputed land by purchasing it in an auction or by any other way. The documents placed before the trial tribunal did not show that there was a court order for auctioning the suit land or that there were ever an auction conducted in respect of that land. For reasons already given, the appeal is dismissed. The decision of the District Land and Housing Tribunal is upheld and confirmed.The Respondent shall get his costs. The procedurally irregularities complained of in this appeal did not occasion any injustice on the part of the Appellant. JUDGE 02/03/2020 Date: 02/03/2020 Coram: A.R. Mruma,J. Appellant: Present Respondent: Present (Represented by Mr. Hamed Makalo, advocate who holds brief of Mr. Henry Njowoka, advocate for the Respondent. Court Clerk: Nakijwa Court: Judgment delivered. A. R.Mruma Judge ^ D a te d at TANGA this 2nd day of March, 2020. 5