ipyana mwambapa vs fatuma wahabi kitenge 2021 tzhclandd 36 19 february 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION ) AT PAR ES SALAAM LAND APPEAL NO. 105 OF 2019 IPYANA MWAMBAPA APPELLANT VERSUS FATUMA WAHABI KITENGE . 1st RESPONDENT BAKARI KITENGE ........... ,.2ND RESPONDENT ISSA KITENGE 3rd RESPONDENT PI LI KITENGE 4th RESPONDENT ASHURA KITENGE 5th RESPONDENT ALLY KITENGE 6th RESPONDENT JUDGMENT I. MAIGE, 3 The dispute culminating into this appeal is on ownership of a property described as Plot No. 993 Block "T" Mtoni Mashine ya Maji. It is held under a letter of offer in the name of SAGAMO MWITA MATTARO dated 23rd December 1994 (exhibit PI). The appellant was the claimant at the trial tribunal. He was claiming ownership of the suit property and condemning the respondents herein to be trespassers thereunto. The alleged root of title of the appellant on the suit property is traceable from a deed of gift between him and the said Sagamo executed in 2015 (exhibit P2). In its decision, the trial tribunal having held that the appellant did not prove the case in the required standard, dismissed the suit with costs. In reaching to such a conclusion, the trial chairperson considered the fact that, the respondents' father (PW2) from whom the respondents traced title on the suit property had been in occupation of the suit property before the same had been granted to Sagamo. He more so considered the fact that, while the property in exhibit PI was surveyed, that which was owned by the respondents7father was unsurveyed. The appellant has not been pleased with the decision. By this appeal, he is challenging the correctness of the same in the following grounds:- 1. That the Hon. Trial chairman erred in law and facts for determ ining the m atter w ithout visiting the locus in quo. 2. That the Hon Trial chairman erred in law and facts fo r failure to determ ine the real issue before it 3. That the Hon Trial chairman erred in law and facts for retying on the evidence o f tribunals' witness on there being unsurveyed p lo t in the name o f the late Abdallah Kitenge without their being a documentary document to that effect 4. Generally, the tria l chairman failed to evaluate, examine and analyze the evidence adduced. The appeal was argued by way of written submissions. The appellant timely presented his written submissions. For the reasons better known to themselves, the respondents did not. As a result, the appeal proceeded ex parte against them. In support of the first ground, the appellant who was unrepresented blamed the trial chairperson in determining the dispute without visiting the locus in quo. He submitted that, without visiting the locus in quo, the trial chairperson would not have the basis of holding that the suit property and the unsurveyed one with residential license No. TMK/SMSS/22/53 were different plots. He submitted further that, without there being tendered a document, such a factual finding would have not been made. He placed reliance on the authority of my learned sister justice Maghimbi in HARRIET STEVEN AND RUTA DOMINIC VS. RASHIDI ALLI BILALI AND ANOTHER. LAND APPEAL NO. 12 OF 2017 where it was held that> It is trite law that the court moves to the locus in quo in deserving cases where there observed a need to verify evidence that has been adduced in the court on certain issues. On the second ground, the trial tribunal is faulted in not addressing the real issue which was on ownership of the suit property and instead, directing its mind on whether the suit property and what the respondents were in possession of were two different properties. In the alternative, it was 3 submitted that, ownership of unsurveyed land would have not been proved without calling witnesses from among the neighbors. On the third ground, the trial tribunal is faulted in placing reliance on the testimony of the tribunal's witness without the respective license being tendered into evidence. In so doing, it was submitted, the trial chairperson violated the provision of order XXXIX 7(1) and (2) of the CPC. It was contended therefore that, the finding by the trial tribunal that Abdallah Kitenge had unsurveyed land plot No. TMK/SMSS/22/53 was unworthy of being considered. On the fourth ground, the appellant faulted the trial chairperson in not correctly and properly asses the documentary evidence on the record, otherwise, it was submitted, he would have held that the appellant is the lawful owner of the suit property. In the final result, the appellant urged the Court to allow the appeal and quash the decision of the trial tribunal with costs. With the foregoing remarks, it is appropriate to consider the merit or otherwise of the appeal. I will for convenience, start with the third ground. In here, the trial chairman is faulted for considering the evidence of the tribunal's witness on the existence of a residential license in the name of the respondents' father without such a document being exhibited into evidence. It was submitted that, in the absence of such document on the record, the trial chairperson was not entitled to consider. I entirely agree with him. It was not proper for the trial chairperson so to do. The reason being that under Order XXXIX rule 7(1) of the CPC, a document does not form part of the record as to be relied upon in court decision unless it is received into evidence. In the circumstance, I will allow the third ground of appeal. As a result, the testimony of the tribunals' witness on the existence of the said license is hereby expunged from the record. This now takes me to the first, second and third grounds. Since the grounds in essence raise an issue of correctness of the assessment and application of the evidence, I will consider them concurrently. Before so doing, it may be relevant to observe that, it was the appellant who was the claimant at the trial tribunal. As a matter of principle therefore, it was him who was required to prove, in the required standard that, he was the lawful owner of the suit property and that, the respondents were mere trespassers. Failure to adduce sufficient evidence to establish the proposition, it is trite law, would not entitle the appellant a judgment even if the respondents did not adduce any evidence. The appellant's cause of action was based on the ownership of the landed property in exhibit PI. In accordance with the facts in paragraph 6(a) (iv) of the application, as well as in the appellant's oral testimony as PW1, the suit property was gifted to him by one Sagamo through exhibit P2. It was further alleged that, before the execution of exhibit P2, the said Sagamo had permitted the respondents to temporarily make use of the suit property for agricultural activities. However, both the application and the oral testimony of PW1 is silent on when were the respondents were permitted to make use of the suit property. More to the point, the same do not disclose where did the appellant get such information. The appellant further alleged, in paragraph 6(a) (v), without disclosing the source of information that, sometime in 2015, the said Sagamo requested the suit property from the appellant for the purpose of constructing a house thereon. He alleged further that, while the respondents initially accepted to give vacant possession of the suit property to Sagamo, they subsequently refused. Mr. Sagamo who would have assisted the Court on that issue testified as PW2. Though he admitted to have executed P2, he denied to have given the suit property to the respondents or either of them. He did not claim whatsoever to have permitted the respondents or either of them to make use of the suit property. Besides, his testimony is absolutely mute on the proposition by the appellant that, he had requested the suit property back from the respondents in 2015 for construction purposes or at all. More to the point, beside claiming to have been granted with letter of offer on the suit property, neither of the appellant's witnesses testified on use of the same between 1994 and 2015. This is so notwithstanding the claim by the respondents in their written statement of defense and evidence that, they had been in occupation of the suit property for over 19 years without disturbance. The appellant claims that the use of the suit property was by virtue of being permitted by the previous owner. Interesting, he who is alleged to have so permitted them to so use denied in his evidence. With such a weak evidence, why shouldn't the trial tribunal dismiss the claim as it did? The appellant blames the trial chairperson in not visiting the locos in quo. The claim is without justification. In my understanding of the law, evidence from the locus In quo is not an independent evidence. It is a supplementary evidence which is used to demonstrate what was testified upon in court room. In here, the substance of the appellant's evidence was that, the suit property was gifted by PW2 in 2015. The factual proposition raised by the respondents in their defense is that, PW2 had no title to pass to the respondents since the respondents had been in occupation and ownership of the suit property before 1994 when P2 came into existence. In his testimony much as his witness PW2, the appellant did not adduce any evidence purporting to describe the suit property. There was thus nothing in his evidence which would require demonstrative evidence from the locus in quo. In any event, the appellant never requested the Court to visit the same. The issue is raised for the first time in an appeal. It was no doubt an afterthought. The trial chairperson is blamed for addressing an irrelevant issue. I see no substance in this contention. It is very clear in pleadings that, while the appellant accused the respondents to be trespassers in the suit property, the respondents denied that the land they are in occupation of is that of the appellant. Therefore, the issue of whether what in possession of the respondents and what the appellant claims is the same, would form part of 8 the broader issue of whether the respondents were trespassers unto the land owned by the appellant. In my opinion therefore, save on the third ground which cannot depose of the appeal, the appeal is without merit and it is accordingly dismissed. I will not Date 19/ 2/2021 Coram: Hon. A. Chugulu - DR. Appellant: Present in person Respondent: Present in person RMA: Bukuku COURT: Judgment delivered this 19th day of February, 2021 in the chamber Court in the presence of applicant and respondent. Right of Appeal fully explained to the parties. DEPI \R 19/2/2021 9