20171229 TZHC Mbeya

• ) IN THE HIGH COURT OF TANZANIA AT MBEYA LAND APPEAL NO.18 OF 2013 (From the Decision of the District Land and Housing Tribunal of RUNG WE District at RUNG WE in Land Case No.30 of 2009) I LOLO \TILL.AGE COUNCIl.,........................................ APPELLANT VERSUS ANITA SHONI FREDERICKSEN ............................ RESPONDENT JUDGMENT Date of last Order: 2711212017 Date of Judgment: 2911212017 NGWALA, J: In the Judgment and Decree of the District Land and Housing Tribunal the Respondent, Anita Shoni Fredericksen was declared the lawful owner of the suit land and that she was entitled to take possession of the suit land. The appellant the IlolO Village Council was ordered not to interfere with the respondent's possession and enjoyment of the suit land. The appellant ordered to receive the revenue money from the resp9ndent for the sold land. The appellant is dissatisfied with that decision. In the memorandum of appeal the appellant is complaining that the trial tribunal erred in law by combining the whole land of Ngumbi Page 1 of 8 land on conditions by the appellant. The learned counsel further ) argued that all the evidences tendered during trial suggested that the disputed land belonged to the village of Ilolo. Mr. Mbise attacked the Judgment of the District Land and Housing Tribunal on account that the assessors were allowed to cross examine witnesses. The assessors took side with the applicant, who is now the respondent. The respondent through the services of Mr. Mwakolo, learned Counsel contended that in the Village Land Act or Regulations there is no temporary allocation of land to a villager. The disputed land had no customary right of occupancy. The disposition of the disputed land did not require consent from the appellant. The learned Counsel for the respondent argued that it is not possible for someone to use the land which at the same time is owned by the Village. His argument was based on the fact that the land was allocated by the Ilolo Village Counsel for a term of three (3) years. It was near the disputed land but Nasi used the disputed land for more than sixteen (16) years uninterrupted. Regarding the argument that the assessors were cross examining the witnesses, Mr. Mwakolo argued that the record is, silent on that. The counsel for the appellant did not outline the questions allegedly to have been asked by the assessors. Page 3 of 8 In rejoinder Mr. Mbise insisted that the trial tribunal made it ) clear that payment of consent fee is a pre-condition for validation of transfer of ownership of the disputed land from Nasi Nsajigwà to Anita. That tribunal wrongly made an order to compel Ilolo Village Council to receive that money. As to the cross examination by assessors, Mr. Mbise insisted that the issue is on record. In view of the submission by the learned counsels, the issue for determination is who is the lawful owner of the disputed land between the appellant and the respondent. Basically, there is no dispute that the disputed land is situated in Ilolo Village. It is therefore governed by the Ilolo Village Council by virtue of Section 8 of the Village Land Act [Cap. 114 R. E. 2002]. The records reveal that the respondent claimed to have bought the disputed land on 30/01/2009 from one Nasi Nsajigwa as per Exhibit "C" the Sale Agreement. In the Memorandum of Appeal the Counsel for the appellant is complaining that the trial Chairman did not specifically point out the disputed land, rather dealt with the whole land of Ngumbi area. It is evident from the Sale Agreement, that in conveyance, the disposition deed must contain all particulars of the subject matter that is the land to be sold its size, the place where it is situated, the price or consideration of the sale. These are key elements in any disposition of the land. In the Sale Agreement dated 30/01/2009, Page 4 of 8 the size of the land which was sold is not indicated. This is a ) fatal irregularity in determining the legality of the said sale of the disputed land which is unknown. I hold so because it is not known how many acres, the respondent bought from Nasi Nsajigwa, apart from words from other people. In disposition of land, the Sale Agreement must indicate the size of land in order to avoid later confusions between and among the parties as in this case. Exhibit "C" the purported sale agreement lacks the essential elements of the subject of the sale. It is crystal clear that whenever there is a document, the said document must be clear. In a latin maxim les ipso loquitor, meaning that a document must speak for itself. In view of the exhibit "C" the trial tribunal could not determine the dispute between and among the parties as to the size of the land in dispute which is purportedly to have been sold to the respondent was not known. The counsels for the parties to this appeal are arguing over the ownership of the disputed land. PW5 testified during trial that after the respondent had bought the disputed land, she used the same for almost five (5) months then she was stopped by the Village Government. This clearly shows that the disputed land belonged to Ilolo Village and the alleged sale was not known to the Village Government. I hold so because the wife of the seller Page 5 of 8 (PW2) does not explain how long they used the said land, from ) the time they were allocated the land by the Ilolo Village Council. PW6, the then ten cell leader of Ng'umbi, where the disputed land is situated, stated that he is not aware when the disputed land was allocated to the villagers. PW6 went on testifying that whenever the land is sold in the Village, the Commission of Tshs.150,000/= is paid to the Village Government. It is also in the testimony of PW6 that the suit land is one of the pieces of land which belongs to the village. In my considered view the evidence of PW6 ought to have been afforded weight bearing in mind that this was the applicant's/ respondent's own witness. PW7 also corroborated the evidence of PW6 as she sent the commission of Tshs.150,000/= to the Village Executive Officer, who refused to accept it on the reason that the suit land could not be sold by any person as it belonged to the Village. It. is known in law and practice that whenever sale of land or conveyance is made in the village, at the completion stage, payment of the village levies is done as per the case of Methusela P. Nyagaswa vs. Christopher Mbote Nyirabu (1985) T. L. R. 103. The alleged seller of the disputed land Nasi Nsajigwa had to make follow up over the ownership of the suit land immediately after the sum of Tshs.150,000/= alleged to be the village commission Page 6 of 8 had been declined by the Village Executive Officer. The said Nasi ) Nsajigwa was still present he ought to have verified the reasons for such refusal. In the record of the trial tribunal it is clear that Nsajigwa was not a true owner who had rights to dispose the land. The testimony of DW4, clearly show that the disputed land was allocated temporarily to Nasi for agricultural purposes and not for him to own it permanently. This being the position, Nasi could not in any way dispose the suit land by way of sale. The fact that he used it for a long time as contended by Mr. Mwakolo, learned Counsel does not suffice him to be the owner of the suit land because a person cannot acquire land through adverse possession while knowing the whereabouts of the owner of the land. The record has revealed that the Ilolo Village informed its villagers to make application for allocation of the land but. Nasi never made any application to the village in order to be allocated the land his fellow villagers applied for and they were allocated under the condition or term of three (3) years only. In the circumstances and the evidence on record, the purported seller of the disputed land had no good title to dispose the disputed land. A person cannot dispose what he does not own. It is only a person with good title over the property who can transfer or dispose it for free. Page 7 of 8 For the foregoing reasons, there is merit in this appeal. I therefore proceed to allow it with costs. The disputed land is declared to be the lawful property of the Ilolo Village Council. The orders of the District Land and Housing Tribunal are quashed and set aside. The Appeal is allowed with costs. Order Accordingly. 40-P&C 1 A.F. Ngwala Judge 29/12/2017 Court: Right of Appeal to Court of Appeal of Tanzania explained. I ' - F.Ngwala / Judge 29/12/2017 Page 8 of 8