idd juma beya vs hassan mohamed duwe 2017 tzhc 2089 23 june 2017

IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA MISC. LAND APPEAL NO. 16 OF 2016 (Appeal from the District Land and Housing Tribunal of Kondoa Land Appeal No. 66 of 2014 Arising from Land Case No. 5 of 2014, Kikore Ward Tribunal) IDDI JUMA BEYA.................................................APPELLANT VERSUS HASSANI MOHAMED DUWE............................. RESPONDENT Date of JUDGEMENT- 23RD/06/2017. Mansoor, J: JUDG EM ENT On 22/1/2014 the appellant, Idd Juma Beya, sued the respondent Hassan Mohamed Duwe for trespassing into a five acre piece of land that the former had bought from one Idd Juma Seleman. The land in dispute is within Hurui village. Umuri Simao, who had also testified against the respondent in applications No.4/2014 and No.6/2014 all before Kikore ward Tribunal (the ward tribunal) said that the respondent in the instant appeal had also trespassed into various pieces of land located in the same area which led to his testimony in the said applications. This witness told the ward tribunal that he visited the locus in quo in an effort to resolve the said dispute. Iddi Juma Seleman backed up the appellant’s version that the latter had purchased land from him for consideration of Tsh 400000/=.He said he was allocated the land in question by the village council. The respondent on the other hand declined the allegations of trespass leveled against him. He said is the rightful owner of the land in dispute as he came into possession of the same since 2000. However, in 2002 other people he did not know claimed ownership thereof. It is at this juncture he was deprived of his right of quiet possession of the land in dispute. Following the incident he had to report the matter to the village government against the ones who purported to claim ownership of the Suit land and. He testified that it is a pity that some members of the village council who had allocated land to him claimed before the ward tribunal not to know him irrespective of the fact that they were the ones who allocated land to him. The respondent testified further that he has documentary evidence which prove his ownership over the disputed land and tendered the same in evidence before the ward tribunal. Apart from other proof of ownership the respondent tendered in evidence a contract evidencing sale of a five acre piece of land to one Marry Fidelis Lymo. When the ward tribunal questioned on the possibility of bringing the ones who had witnessed the documents evidencing his ownership over the disputed land he said he would make it happen but did not. Likewise, when he was required to mention a few neighbors he borders with in so far as the land in dispute is concerned he happened not to know any. He was emphatic that the village council leaders who had witnessed the documents evidencing his ownership to the property in dispute were still alive and that would testify, if need be. He testified further that he was surprised after he had learned that the members of village council claimed not to recognize him while testifying before the ward tribunal when they were the ones who gave him the documents evidencing ownership of the land in dispute. Apart from other proof of ownership the respondent tendered in evidence a contract evidencing sale of a five acre piece of land to one Marry Fidelis Lymo. When questioned by the ward tribunal the respondent said he the piece of land that was allocated is about 100 acres (one hundred acres).When questioned on the possibility of bringing the ones who had witnessed the documents evidencing his ownership over the disputed land he said he would make it happen but did not. Equally when he was required to mention a few neighbors he borders with in so far as the land in dispute is concerned he happened not to know any. After analyzing the evidence before it, the ward tribunal found for the appellant. It was the ward tribunal’s finding that the respondent failed to bring crucial witnesses. For example he was expected to bring Dukuma Alos the one who was authorized by the appellant to own his land on temporary basis. The respondent ought to atleast brought several witnesses as neighbours that he borders with at the disputed land.Also it found that the documentary evidence as to ownership ought to have been backed up by the persons who witnessed the same. Dissatisfied with the ward tribunal’s finding the respondent appealed to the District Land and Housing Tribunal of Kondoa (Land Appeal No.66 of 2014)(the district tribunal).He filed four grounds of appeal in his memorandum of appeal which in substance has two complaints. One, the appellant did not tender documentary evidence to prove ownership of the disputed land and thus the ward tribunal erred in law and fact in deciding in his favour and (2) the ward tribunal erred in law and fact in deciding in favour of the appellant when it was not properly constituted. The district tribunal held that the respondent has sufficiently shown to its satisfaction that he is the rightful owner of the suit land .The district tribunal observed that the appellant's claim that he had bought the said 15 acres from Hamisi J. Selemani was rather a contradiction more so because it was later discovered that the said Hamisi Selemani is not even the true owner of the disputed land in which case the village council found it incumbent to compensate the appellant by allocating to him 22 acres. The district court decided in favour of the respondent. Dissatisfied, the appellant appealed to this court. He has filed three grounds of objection. One, the district tribunal erred in law and fact in holding that the respondent is a lawful owner of the land in dispute by placing its reliance on a written letter to that effect and thereby disregarding the provisions of the Land act[ Cap 114 R.E 2002 ] (the act).Two, the district land erred in law and fact by placing its reliance on respondent’s documentary evidence to prove his ownership over the disputed land when in fact the ward tribunal doubted the authenticity thereof and three, the district tribunal erred in law and fact in holding that the appellant was compensated the other 22 acres after he had bought a piece of land from the seller who was not the owner of the same. This appeal was scheduled for mention on several occasions the respondent did not appear. A substituted service through publication was proposed and effected as the respondent’s whereabouts was unknown and yet proved futile. The respondent was a no show person. The matter was scheduled to be heard exparte. When the matter came on for hearing on 5th June, 2017 the appellant’s learned advocate, Mr.Ngongi prayed to argue the same by way of written submission. This court granted the prayer. Arguing in elaboration of appeal the appellant contends that the records of the ward tribunal show that the respondent claimed to have been allocated about 180 hectares (one hundred and eighty hectares) through a letter dated 14/08/2010 when in fact the provision of regulation 76(2) of the village Land Regulations, 2001 (the regulations) requires consent of the district council to approve such an allocation. I find it incumbent to correct right away that as per the receipt evidencing payment of certain charges in respect of the disputed plot and not the said letter, the respondent happens to have been allocated 180 acres and again not 180 hectares as the appellant submitted. The provision of regulation 76(2) of the regulations cited by the appellant provides as follows. “Where an application is made to the village council for an amount of land whether by way of a customary right of occupancy or by way of a derivative right or consent to the grant of a derivative right which is between twenty - one and fifty hectares in extent the village council shall forward that application to the district council having jurisdiction in the district where the village is situate together with its recommendation on that application and shall not grant that application unless and until the district council shall signify in writing to the village council that it consents to that application" As the procedure was not followed the allocation of 180 acres to the respondent contravened the cited mandatory provision of the law, he charges. The appellant submitted further that the proceedings before the ward tribunal show that the respondent was unable to bring neighbours whom he borders with as witnesses in respect of the disputed land but failed. The failure in question entails that the ward tribunal was justified not to believe his version of story and the district tribunal ought not to place reliance on his testimony. I have gone through the evidence before the ward tribunal and the decision of the district tribunal and gather that the appellant's case before the ward tribunal was stronger than that of the respondent for the reasons that will be apparent shortly. The ward tribunal visited the locus in quo along with its members in which case the appellant and respondent were the ones presumably, identifying their respective pieces of land. At this juncture the ward tribunal had the advantage of observing what was told in court by seeing the land in dispute. Another misgiving is on the documentary evidence which the DLHT regarded as being the conclusive evidence that the respondent is the rightful owner of the plot in dispute does not suggest that the land measures 180 acres .But, a certificate evidencing confirmation of ownership over the disputed land show that he was allocated a piece of land measuring about 1140 paces which is equal to only 16 or so acres. In the circumstances as this no one can say with certitude that the respondent was truly allocated the disputed land with the village council given the said discrepancy in evidence. Indeed, not in the circumstances as this where the respondent did not summon member(s) of village council whom he claimed had witnessed the documents to testify in his favour. I do not accede to the appellant’s invitation that the fact that the receipt evidencing ownership of the Suitland implies that the respondent was allocated 180 acres as shown therein entails that he was allocated the same in contravention of the provision of regulation 76(2) of the regulations. Whereas I agree with the appellant that the respondent’s testimony on the number of acres he owns has not been so far inconsistent for on one occasion said he was allocated 42 acres and on the other said was allocated about 100 acres, by no means is caught up with regulation 76(2) of the regulations. Regulation 76(2) of the regulations does not permit allocation of land by village council by way of customary right of occupancy. As far as I could gather from the testimonies of various witnesses herein and the documentary evidence tendered in evidence the respondent’s allocation of land cannot be said to qualify and be termed as ‘customary right of occupancy’. Customary right of occupancy has been defined under section 2 of the act in the following words: 14customary right of occupancy ” means right of occupancy created by means of the issuing of a certificate of customary right of occupancy under section 27 of this Act and inciudes deemed right of occupancy” Section 25(1), (2) (a) of the act requires a certificate of customary right of occupancy to be in a prescribed form. My understanding of the stance of the law above is that the requirement set under regulation 76(1 )and (2) only binds the holder of a certificate of customary right of occupancy. As there is no proof so far that the respondent has a certificate of title, one that is in a prescribed form, regulation 76(1) and (2) cannot apply in the circumstances. If anything, the respondent has only hand written documents claiming to substantiate that he is a true owner of the suit land. Otherwise, I remain alive to the effect that the respondent failed to prove his ownership to the land in dispute more so because his version of story was not backed up by any witness before the ward tribunal even those one would have expected to testify in his favour. For example the respondent was expected to summon the village council members who according to him, had witnessed the documents he referred as evidence of ownership over the suit land. Equally the respondent was expected to summon the said Dukuma Alos, a person he claimed to have permitted to occupy the suit land on temporary basis(caretaker). Based on the above reasoning, this appeal has merits, and it is hereby allowed, with no orders as to costs.