IDDI TURUKU MSURI VERSUS HAMUDU WAZIRI TURUKU

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA LAND APPEAL NO 1572 OF 2024 (Arising from the Land Application No. 17 of 2023 in the District Land and Housing Tribunal of Kondoa District at Kondoa dated 16th November, 2023) BETWEEN IDDI TURUKU MSURI…………………………………APPELLANT VERSUS HAMUDU WAZIRI TURUKU…..………….……… RESPONDENT JUDGMENT Date of the last Order: 03/09/2024 Date of the Judgment: 28/10/ 2024 LONGOPA, J.: This appeal arose out of the decision of the District Land and Housing Tribunal for Kondoa dated 16th November 2023 which ordered the division of the disputed land. The appellant herein was awarded two-thirds (2/3) of the land while the respondent was awarded one-third of the land as the compensation of labour to develop the land since 1990s. 1|Page The appellant had instituted a case against the respondent before the Tribunal claiming ownership of the land measuring three-quarters an acre located at Kolo “A” Hamlet in Kolo Ward within Kondoa Township Council. The appellant being dissatisfied with the judgment and decree of the District Land and Housing Tribunal thus 29th December 2023 preferred an appeal against the whole of the decision on two main grounds, namely: 1. That the Honourable Chairman erred in law and fact by apportioning one third (1/3) of the disputed piece of land whereas the said disputed land is legally owned by the appellant. 2. That the Honourable Chairman despite acknowledging that the appellant only gave respondent the disputed piece of land to use and to take care of but went on to apportion the land to the respondent on ground that the respondent has used the said piece of land and took care of it for a long duration contrary to laws governing ownership of land in Tanzania. Thus, the appellant prayed that this Honourable Court be pleased to allow the appeal, set aside both judgment and decree; costs of appeal be 2|Page borne by the respondent and any other relief that this court may deem fit to grant. This appeal was agreed to be disposed by way of written submissions. However, it is only the appellant who filed the respective written submissions. As a result, this Court proceeded to determine this appeal under Order XXXIX Rule 17(2) of the Civil Procedure Code, Cap 33 R.E. 2029 which allows the Court to proceed determination of an appeal ex parte where the respondent do not appear for hearing of the appeal. That is the obvious effect of the parties’ failure to comply with court orders regarding hearing of the case where the defaulting party is appellant the dismissal is the only cause while failure by respondent its effect is to proceed ex parte. For instance, in the case of Anna Zakaria v Reniel Marthini (Land Appeal No. 48 of 2023) [2024] TZHC 531 (22 February 2024) (TANZLII), at page 3, the High Court stated that: It is settled law that failure to file written submission in support of any matter, it tantamount to failure to appear on the date the matter is fixed for hearing. The remedy is to have the matter dismissed for want of prosecution. The appellant in his written submission reiterated that the appellant herein is the young brother of the respondent’s father. In 1995, the 3|Page respondent was given the disputed land by the appellant to use and take care of it for a while and return it to the appellant later on. The appellant claimed that he obtained the disputed land during ‘Operation Vijiji’ in the year of 1974 where he was given the piece of land by the Village Council. That, the respondent here in denies to return the piece of land that was borrowed to him by the appellant claiming that he was handed over the piece of land by his father during 1990 to take care of it. In support of the first ground the appellant submitted that the trial Tribunal’s Chairman erred in law and fact by apportioning 1/3 of the disputed piece of land whereas the said disputed land is legally owned by the appellant. It was well determined by the trial Tribunal that the Appellant is the lawful owner of the disputed piece of land and that the respondent herein was just handed over the disputed piece of land by the appellant to take care of it and return it to the appellant later on. There was no point of a time that the respondent herein proved that his father is the lawful owner of the disputed piece of land nor did he bother to call him before the trial Tribunal to witness the same. The trial chairman clearly stated in page 5 of the judgment that the appellant herein managed to prove before the trial Tribunal through the raised issues, that he is the lawful owner of the disputed piece of land 4|Page since 1974 and the respondent was only given the authority by the Appellant to take care of the disputed piece of land. In support, both the trial assessors were of the opinion that the appellant herein is the lawful owner of the disputed piece of land and thus it belongs to him. Considering the balance of probabilities, the conduct of the parties tends to tilt the weight of the evidence in favour of the appellant rather than the respondent herein. It was further reiterated that there is no applicable law in Tanzania that provides that since a person has given authority to take care and use any piece of land belonging to another person gives him or her the right to be apportioned part of the piece of land and be declared the lawful owner on the same. The mere fact of the respondent only taking care of the disputed piece of land does not make him the owner of the whole or part of the disputed land since the court already determined the appellant as the lawful owner of the land. It was argued that if the respondent had interests over the disputed piece of land and wished to own the same, he could have followed the procedures either to settle with the appellant to be given part of the disputed land or purchase the same from the appellant. But instead, the respondent herein only declared to be a caretaker of the disputed piece of land that he claimed to be owned by his father and he was only using it for cultivation. 5|Page It was argued that thus, the chairman erred in law and in facts by apportioning the disputed piece of land and declared the same without considering the will and the wishes of the appellant. On the second ground of appeal, it was argued that the trial Chairman despite acknowledging that the appellant only gave the respondent the disputed piece of land to use and to take care of but went on to apportion the land to the respondent on the ground that the respondent has used the said piece of land and took care of it for a long duration contrary to laws governing ownership of land in Tanzania. The trial Tribunal clearly determined that the appellant herein managed to prove that he is the lawful owner of the disputed piece of land and how he obtained the same. The same is supported by the evidence given by the respondent where he directly stated that the disputed piece of land does not belong to him but it belongs to his father, he was only given to take care of it since 1990. Further, the trial Chairman only considered the fact that the respondent herein only took care of the disputed piece of land since 1990 handed over by the appellant without regarding that the appellant was found the lawful owner of the disputed land and had the right on the same on whether to distribute a portion to the respondent herein as 6|Page compensation to the whole years, he took care of the disputed piece of land on behalf of the appellant. It was of concern that during the years that the respondent herein only used to take care of the disputed piece of land and he had the opportunity to use the land for cultivation, this was supported by the evidence given by SU2, SU3 and SU4 where they stated before the trial Tribunal that, they only saw the respondent herein using the disputed piece of land for cultivation. It was the appellant argument that during the years that the respondent used the disputed piece of land for cultivation thus he benefited on the same by using the piece of land without giving anything to the appellant. Accordingly, this point could have moved the trial Tribunal to declare the appellant herein lawful owner of the whole disputed piece of land without apportioning it to the respondent on the criterion that he only took care of the disputed piece of land on behalf of the appellant herein. It was reiterated that in order for the respondent herein to become the owner of the whole or part of the disputed piece of land he could have settled or enter an agreement with the appellant to inherited the same or purchase the piece of land. Therefore, the trial Tribunal’s Chairman erred by declaring the respondent to have 1/3 of the disputed piece of land even 7|Page after acknowledging that the said piece of land belonged to the appellant as the lawful owner of the same. I have dispassionately considered the submission by the parties in light of the grounds of appeal to determine the validity or otherwise of this appeal. It is settled law that a party with heavier evidence must be entitled to the decision of the Court. This is in accordance with the principle in the case of Hemedi Saidi v. Mohamed Mbilu [1986] TZHC 15 (5 July 1986) (TANZLII) where the High Court (Sisya, J.) observed that a party whose evidence is weightier than the other party, that party is entitled to the decision of the Court. The Court observed that: According to law the person whose evidence is heavier than that of the other is the one who must win. In this instance each party called two witnesses in addition to himself at the hearing of the case in the Court of first instance. In measuring the weight of evidence in such cases as the present one it is not, however, the number of witnesses whom a party calls on his side which matters. It is the quality of the said evidence. In this connection the evidence of a single witness may be a lot heavier than that of ten 8|Page witnesses. It is to this issue of the weight of the evidence in this case that I now turn. Further, it is settled legal principle in Tanzania that who alleges must prove. In the case of Registered Trustees of Joy in The Harvest vs Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139 (28 April 2021) (TANZLII), at pages 16-17, the Court of Appeal guided that: With the above evidence at our disposal, and in order to decide whether the respondent managed to prove the case at the required standard we had to revisit the trite principles in the law of evidence; the general concept of the burden and the standard of proof in civil litigations. The concept is "he who alleges must prove," and it means that the burden of proof lies on the person who positively asserts existence of certain facts. The concept is embodied in the provisions of section 110 (1) and (2) of the Evidence Act [Cap 6 R.E. 2019] which provides that: -"(1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." 9|Page Certainly, the position that he who alleges must prove is part of our jurisprudence as per this Court's decisions in The Attorney General v. Eligi Edward Massawe, Civil Appeal No. 86 of 2002 and Ikizu Secondary School v. Sarawe Village Council, Civil Appeal No. 163 of 2016 (both unreported) and the standard of proof, in civil cases is on the balance of probabilities, see the decision in Manager, NBC Tarime v. Enock M. Chacha [1993] TLR 228. Given the fact that the respondent herein failed to prove the case against the appellant, the trial Tribunal was duty bound to dismiss the respondent’s case for failure to prove that a particular land in disputed belonged to the respondent. Simply, the Tribunal was required to find against the respondent as the appellant had managed to prove the case to the required standard. The dispute between the appellant and respondent was who is the rightful owner of the disputed piece of land. It is on record that the appellant herein managed to establish that piece of land in dispute belongs to him as he got the same through grant by Village Government since 1974 during the Operation Vijiji programme. Indeed, that was the finding of the trial Tribunal on page 4 of the Judgment. The Tribunal stated categorically that evidence of the applicant one Iddi Turuku Msuri and his three (3) 10 | P a g e witnesses managed to prove on preponderance of probability that such disputed land belongs to the applicant as he was granted by Village Government. On the other hand, the respondent herein stated that the land was not his but he was only a caretaker of his father who gave him the land in 1990 to take care of it only. However, the respondent’s father did not testify before the Tribunal regarding his ownership on that land. In Hemedi Saidi Vs Mohamedi Mbilu [1984] TLR 113, it was held that: "Where, for undisclosed reasons, a party fails to call a material witness on his side, the court is entitled to draw an inference that if the witness was called, he would have given evidence contrary to the party's interests. Further, in the case of African Banking Corporation T. Ltd vs T- Better Holdings Co. Ltd (Civil Appeal No. 207 of 2017) [2024] TZCA 165 (6 March 2024) (TANZLII) at pages 13-14, the Court observed that: The trial court is faulted for drawing adverse inference against the appellant for failure to call the persons who received the disputed transfer of funds forms presented by Edwin Mbuko and James Mwamkinga mentioned by DW1 and failure to adduce evidence on the outcome of the investigation on the fraud involving the disputed transfer forms. Despite Mr. Kibatala's urging, we agree with Mr. Chuwa that, the trial court was entitled to draw 11 | P a g e adverse inference against the appellant in the manner it did. For a start, we wish to make it clear that by DW1's own evidence in her witness statement, she stated in no uncertain terms that she received the funds transfer forms from the plaintiff. She never said that she received the forms from her fellow staff whose names were not disclosed when answering questions in cross examination. Secondly, the trial court's finding on the first issue was not based on the adverse inference rather on the failure by the appellant to discharge her burden of proof. Reference to adverse inference was, in our view, a remote factor which could not have been conclusive in itself to support a conclusion the trial court arrived at in finding against the appellant on the first issue. The respondent herein having stated that the land belonged to his father who was alive at the time of hearing of the application, he was duty bound to ensure that to the respondent’s father testifies before the Tribunal to warrant the Tribunal to enter judgment in his favour. None of the respondent’s witnesses established source of ownership of the respondent on that plot of land. 12 | P a g e It is on that ground that at page 5 of the judgment the trial Tribunal’s Chairman lucidly stated that there was no any of the defence witnesses, DW 2, DW 3 and DW 4 whose testimony would support and corroborate that of the respondent. Thus, it concluded that one Hamudu Waziri Turuku is not the owner of the plot of land in question. This was a correct exposition of the law regarding the matter. A serious error on the part of the trial Tribunal’s Chairman was committed in pages 6 and 7 where he partly admitted that assessor’s opinion was correct that land in question belonged to the appellant herein. The Chairman stated the reason for not agreeing partly with opinion of the assessors on assumption that respondent had occupied and used the land for long time taking care of the land not for pay thus should get portion of the land. The error is of two folds. First, this reason was extraneous matter as it was part of the evidence on record that respondent adduced so. It was not part of the pleadings that respondent claimed long usage rather he stated only to be a care taker only. In Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) (TANZLII), at page 13, the Court of Appeal reiterated the role of pleadings in the following words: 13 | P a g e The other remark which we find ourselves compelled to make relates to pleadings. In doing so we cannot do better than reiterate what we said in James Funke Gwagilo vs. Attorney General [2004] TLR 161 whereby we underscored the function of pleadings being to put notice of the case which the opponent has to make lest he is taken by surprise. From that same decision we reiterated another equally important principle of law that parties are bound by their own pleadings and that no party should be allowed to depart from his pleadings thereby changing his case from which he had originally pleaded. Thus, the trial District Land and Housing Tribunal was bound to determine the dispute on issues that parties had dispute on not to introduce its own issues. Second part of the erroneous aspect is that such reason was not valid reason to depart from the assessors’ opinion. It is the law that Tribunal’s Chairman should give reasons for departing on the opinion of the assessors. The Land Disputes Courts Act, Cap 216 R.E. 2019 states that: 24. 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 14 | P a g e judgment give reasons for differing with such opinion. It is my settled view that reasons must be valid and informed by evidence on record. On the proceedings that led to this appeal, there is nothing regarding taking care of that particular piece of land without payment. It is my considered view that reason advanced by the Chairman is invalid. Having permitted to take care of the land means the respondent at all the time he put such land in use enjoyed the fruits of that land. There is no law that permits the courts or tribunals to grant ownership of land on account that of a care taker had occupied and used that land for long time thus entitled to portion of it without having so prayed in the prayers nor tendering any evidence to such effect. In totality the finding of the District Land and Housing Tribunal for Kondoa to award one-third of the disputed land to the respondent was improper without support of any evidence on record. I shall therefore set aside the Judgment to the extent that award of one-third of the land to the respondent was not supported by evidence thus it was improper. I substitute with the finding that the whole disputed land belongs to the appellant. As a result, the whole appeal is allowed on both grounds. 15 | P a g e Finally, it is hereby declared that the whole land in dispute is the lawful property of the appellant and the respondent is precluded from interfering with such land forthwith. The appellant also is entitled to costs of the appeal. It is so ordered. DATED at DODOMA this 28th day of October 2024 E.E. LONGOPA JUDGE 28/10/2024. 16 | P a g e