issa r mchomvu vs aziza kondo 2021 tzhclandd 702 26 february 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 140 OF 2020 (Arising from the decision of Kibaha District Land and Housing Tribunal in Land Appeal No. 38 of 2019) ISSA R. MCHOMVU...............................................................APPELLANT

VERSUS XZIZA KONDO................................................................. RESPONDENT Date of Last Order: 25/11/2020 Date ofJudgment date: 26/02/2021

JUDGMENT MANGO, J. rhe appellant, ISSA R. MCHOMVU preferred this appeal against the decision )f the District Land and Housing Tribunal for Kibaha in Land Appeal No. 38 of 2019 on the following grounds: 1. That the Appellate tribunal erred in Law and facts for only determining the second ground of appeal leaving the first ground of appeal undetermined thus reaching to an unjust and erroneous decision; 2. That the appellate Tribunal erred in law and facts for its failure to evaluate evidence with regard to the grounds of appeal that were raised by the appellant thus, applying a wrong principle i I in determining who was the rightful owner of the suit land for the last thirty years; 3. That the appellate tribunal erred in law and in facts by holding that the Respondent had heavier evidence compared to the appellant without properly going through the record of the trial tribunal where it was evidently clear that the testimony of the three witnesses, Selemani Rotary Mapunda, Hemed Rajab Kipalamba and Athumani Kasembe upon which the decision was founded was weaker and irrelevant to the subject matter; 4. That the appellate tribunal erred in law and facts for deliberately ignoring the principles of natural justice thus, giving a biased judgement that is founded on mere assumptions and the chairperson's own perception rather than guidelines set by the law; 5. That the appellate

tribunal erred in law and facts when the chairperson misdirected herself and refused to exercise the duty of a first appellate court which made her reach wrong conclusions; and 6. That the appellate tribunal erred in law and in fact by ignoring fact of the strong evidence on record relating to possession and occupation of the suit land by the appellant compared to that of the respondent. The appellant was represented by Mr. Godfrey B. Namoto and Mr. George Kawemba Mwiga learned advocates while the respondent had no legal representation. By consent of the parties the appeal was argued by way of written submissions. 2 In his submission, learned Counsel for the appellant consolidated the second, third, fifth and sixth grounds of appeal and argued the remaining grounds of appeal independently. Submitting on the first ground of appeal, the learned counsel argued that the appellate court did not consider the ground of appeal raised by the appellant which concern weight of evidence produced by the parties. He submitted that the appellate tribunal instead of considering the weight of evidence, it considered the issue of credibility of witnesses which was not raised as a ground of appeal. Citing the case of Stanslaus Rugaba Kasusura and the Attorney General Versus Phares Kabuye [1982] TLR 338, he argued failure of the appellate Tribunal to determine the grounds of appeal made

its judgement to be defective and it ought to be quashed and set aside. Submitting on the second, third, fifth and sixth grounds collectively, Mr. Namotto argued that the appellate tribunal did not re-evaluate evidence produced before the trial tribunal in respect of the grounds of appeal raised by the appellant. He argued that the appellant's evidence was stronger than the respondent's evidence but the appellate tribunal misdirected itself in ignoring all the glaring evidence to that effect. He argued further that the first appellate Court has a duty of evaluating evidence as well as matter of law that can be found on record. Unfortunately the appellate tribunal did not perform this duty. The learned advocate cited several authorities in this aspect including the case of Shantilal M. Ruwalla versus Republic (1957) in which the duty to re- evaluate available evidence was amplified. He is of the view that had the appellate tribunal performed its duty it would have found several errors and misdirection that were before it. It would found also that the respondent's evidence before the 3 tribunal was very weak and disjointed and could not justifiably prove the case on balance of probabilities. The learned counsel highlighted the alleged errors in the proceedings of the trial court to include the manner the trial was conducted and composition of the trial tribunal. On the manner the

proceedings were conducted the learned counsel argued that the appellant who was the respondent before the tribunal testified before some of respondents witnesses namely, Rotali Mapunda and Hemedi Rajab Kipalamba. He also raised the issue of composition of the trial tribunal that it was composed of seven members and only two of them were women which is contrary to the provision of section 11 of the Land Disputes Courts Act, [Cap. 216 R. E. 2019], He argued the mentioned irregularities are apparent on the face of the record of the trial tribunal and had the appellate tribunal exercised its duties properly it would have reached into a different conclusion. In his submission on the fourth ground of appeal, the learned counsel for the appellant reiterated his submission on the other grounds of appeal. In her reply submission the respondent argued that the trial and appellate tribunal evaluated available evidence correctly and arrived at a just decision. She argued that her evidence outweighed that of the appellant because the appellant did not tender any evidence regarding his alleged ownership over the suit land. He merely allege to have been in occupation of the suit land for more than 12 years without any proof. She is of the view that her evidence weighs more than the appellant as she tendered a sale agreement which shows she bought the suit land from one Selemani Rotali

Mapunda in 1992. 4 The said Selemani Rotali Mapunda testified to be the owner of the suit land from 1985 to 1992 when he sold the land to the respondent. Submitting on the alleged irregularity in the proceedings of the trial tribunal, the respondent argued that the requirement to have at least three women in the composition of the ward tribunal arise only when the tribunal is composed of eight members. The quoram of the Ward Tribunal as provided the Ward Tribunals Act under section 4(3) is a half of the members that compose the tribunal. She added that, once a tribunal sit with a half of its members, one woman is enough to constitute a proper coram in adjudication of a land dispute before it. The respondent prayed that this appeal be dismissed with costs In his rejoinder learned counsel for the appellant argued that the respondent had not proved her case within the required standards as she did not testify before the tribunal. He argued further that the testimonies of her three witness and documents produced by the respondent's witnesses were improperly admitted as evidence. The learned counsel reiterated his submission on the irregularities in proceedings of the trial tribunal. I have considered submissions from both parties and court record. Court record reveals that the respondent instituted Case No.3 of 2018 before Msimbu Ward Tribunal against the appellant claiming ownership of a farm that measures 3 acres located at Msimbu Village, Kisarawe District, Pwani Region. The Ward Tribunal ruled in favour of the respondent. The appellant appealed against the decision of Msimbu Ward Tribunal and his appeal was 5 registered as Appeal No. 38 of 2019. Before the Appellate Tribunal the appellant raised only two grounds of Appeal which were as follows.

1. That the Ward Tribunal erred in law and facts in its failure to take into account the fact that the appellant had been an uninterrupted use and occupation of the suit land in 2018 2. That the decision of the Ward Tribunal was reached against the weight of evidence by the appellant against weak evidence of the respondent. The appellate tribunal ruled in favour of the respondent hence this appeal in which the appellant raised among other grounds of appeal that the appellate tribunal did not evaluate evidence tendered before the trial tribunal. A thorough reading of the judgement of the appellate tribunal shows that the honourable tribunal reproduced testimonies of almost all witnesses who testified before the tribunal and re-evaluated the evidence tendered before the trial tribunal. The appellate tribunal judgement has analysed evidence tendered before the tribunal and reached its findings from its own analysis of evidence as reflected on page five to eleven of the judgement, specifically page 10 to eleven of the judgement. In such circumstances the allegations that the appellate tribunal did not evaluate evidence tendered before the trial tribunal are unfound. In his first ground of appeal, the appellant allege that, the Appellate Tribunal did not determine the first ground of appeal which concerns the principle of adverse possession. I find this ground to be unmeritorious

because the appellate tribunal chairman determined this ground of appeal at page seven 6 of his judgement. In determining this ground of appeal, the appellate tribunal chairman held; "On his submission, the appellant said he has been in occupation of the suit land since 1986 which marked 30 good years of uninterruption. He said, this was supported with the evidence of his witnesses...On my view this ground lack merits on the reason that, the respondent also claim ownership of the suit land since 1992. His seller Mapunda claim to own the same land since 1985 after purchase and he has been developing it up to 1992 when he sold the same to the respondent. Therefore from this competing facts and evidence where none of the party has said to have deserted the suit land for more than twelve years so as the other can claim ownership under adverse possession." The appellate tribunal correctly determined this ground of appeal as abandonment of suit land is a necessary ingredient for adverse possession to arise. If the land has never been abandoned, no person can successfully claim ownership over the same through adverse possession. The appellant also allege to have stronger evidence than the respondent. This ground of appeal was also determined by the appellate tribunal. The appellant allege to have purchased the suit land from persons who were not called as witnesses. According to the

testimony of the appellant he purchased the land from Tenga, Kibaya and Mahangu on 16th March 1987 when the village chairman was Mzee Mchachali. As correctly noted by the appellate tribunal all witnesses who testified on his side did not testify on how the appellant ...Mv acquired his land. On the other hand the respondent's witnesses testified that the respondent purchased the land from Mapunda. The said vendor also testified to have sold the land in dispute to the respondent. Court record shows that two sale agreements were tendered as evidence before the trial tribunal. The agreement though not contained in the court file, they are mentioned to have been seen and confirmed by the trial tribunal to be a sale 7 agreement between Suleiman Rotary Mapunda and Salumu Mgemba dated 7th July 1985 and a sale agreement between Aziza Rajab Kondo and Suleiman Rotary Mapunda dated 7th July 1992. With such kind of evidence the appellate tribunal was right to hold in favour of the respondent as her evidence weighs more than the appellant. The appellant raised new grounds of appeal before which concerns procedural irregularities in the proceedings of the trial tribunal. It should be noted that parties are not allowed to raise new grounds of appeal which were not determined by either the trial or the first appellate court. Moreover, the law, section 45 of the Land Disputes Courts Act limits

courts from altering the decisions of the tribunals on the grounds of irregularities which did not occasion failure of justice to any of the parties. However, I find it in the interest of justice to consider the issues raised because they concern the legality of the procedures involved during adjudication of the case at hand. I have also considered the fact that the respondent submitted on the new grounds thus, he will not be condemned unheard. The appellant alleged that the trial tribunal was not properly composed as it had seven members only two of them were women. He however did not explain how he was affected by such a composition of the tribunal. The law is very clear that the tribunal should be composed of four members not more than eight members three of whom should be women. Unfortunately, the Land Disputes Courts Act, [Cap 216 R. E. 2019] does not provide for the quoram of members at a sitting. In such circumstances, the tribunals may consider to employ the provisions of the Ward tribunals Act and non-consideration of the same cannot be considered to be fatal. Issues of quoram of the tribunal especially in case as the one at hand where parties 8 agree that seven members sat and no complaints that such sitting occasioned failure of justice to any of the parties, cannot move this Court to interfere with the decision of the tribunal. The other irregularity highlighted by

the appellant is the manner proceedings were conducted. He allege that he presented his defence prior to hearing of the applicant's case, here in the respondent. The appellant did not state how this affected his case. Record shows that, it is true the appellant was caused to produce his defence on the first hearing date. Such an action has caused the appellant to fail to defend his case because when the appellant and his witnesses were testifying the appellant was not fully aware of the case against him. In such circumstances, I hereby set aside the decision of the appellate tribunal, envoke revisionary powers vested in this court to nullify proceedings of the trial court and order that this matter be tried afresh before a competent tribunal. No order as to costs. 9