20161223 TZHC Mbeya

11'

IN THE HIGH COURT OF TANZANIA

AT MBEYA LAND APPEAL NO 36 OF 2016 (From the Decision of the District Land and Housing Tribunal of MBEYA District at MBEYA in Land Case No 57 of 2014) JAMES E. KIPOKILE .. ............",... . .........APPELLANT

VERSUS EI'c1S E. .............................. IESPoIDEIcr Date of last Order: 16.11.2016 Date of Judgment: 2311212016

JUDGMENT Dr . A. J. Ma in t eDistrict Land. and Housing Tribunal at Mbeya, the appellant who was the applicant lost his application No.57 of 2014 .-unsuccessfully against the respondent. The District Land and •..HousgJrihuna for. Mbeya declared the respondent to be the legal owner of land in dispute. Aggrieved, the appellant has filed this appeal with four (4) grounds namely: 1. That - The District Land and Housing Tribunal of Mbeya erred in law in ruling in favour of the respondent since Mary Mkonje Kipokiië (deceased) was one a defendant in the suit premises. 1 That - The District Land and Housing Tribunal of Mbeya erred in law in affirming that the respondent was in custody (custodial) of the suit premises an argument that couldn't be supported by those who bailed the respondent out. That - The District Land and Housing Tribunal of Mbeya erred in law in affirming that the respondent was the custodian of the suit premises while he (the respondent was merely a custodial of Mwilongo clan asset only. That - The District Land and Housing Tribunal of Mbeya erred in law in acknowledging evidence and supporting documents by witnesses not related to the suit premises clan members. The appeliant through Mwandu, ma.de a collective submission to all grounds of appeal. The learned counsel for the appellant argued that The District Land and Housing Tribunal of Mbeya erred in law

in rulin.g in favour of the respondent. He submitted that the trial Tribunal was required to determine the owner of the disputed land. He further submitted that all James and Enos were administrators only of different estates. He averred that while James (the appellant) is the administrator of the Asiiya estate, the respondent (Enos) is the administrator of Bahati. The appellant counsel subn.itted that he challenge the decision of the District Council which decided that the land in disputebelongedto Enos'(the respondent) while he is just an a4ministratorHe -further submitted that the respondent failed to bring the deceased children to explain as to how their mother got that land. The appellant counsel argued that the appellant brought witnesses who clearly testified that the land belonged to the deceased 2 Asilia Kipokile and all parties to this case were the sons of the deceased. The counsel appellant also called his young father who testified that the land belonged to the deceased. He submitted that there is no evidence to show when and how the land was transferred to Mary from her father. The appellant also raised the other key the legal issue that the Hon.Trial chairman did not consider the assessors' opinion as per Section 24 of the Land Courts Disputes Act 2002 without reasons. The counsel appellant further submitted. that - th&Hon.Trial chairman did not reasons in

reaching his decision. The learned counsel for respondent Ms.Joyce Kasebwa responded by submitting that the respondent does not agree with the first ground of appeal. Her argument was based on the fact that there is no issue on case No 57 of 214 it was just a fresh application and not appeal. She submitted that the records show.s that the respon.den( (Enos) is the Administrator of Mary Kipokile and not otherwise. She further submitted that the ruling is clear the respondent (Enos) is an - administrator and not otherwise. M-s;:.-Joyce;:the learned counsel'- also - submitted that the appellant - -Counsei has not focused to- his- -groundH of appeal as he has not -discussed anything on ground 3 and She that the Trial Tribunal did not error as its decision at page 1.0 is clear on who L opinion the respondent [counseF-subImtted-thatthechairman give the reasons at page 3 on - - ... why he didn't consider the opinion of assessor as per Section 23 (3) of Act No 2 of 2002. She finally submitted. that it is clear from the evidence the land in dispute belongs late Mary Kipokile. 3 I have carefully gone through the su-bmissions from both parties - ) including the records from the trial tribunal. In my considered view this appeal forms one key issue that is whether the trial Tribunal Chairman erred in holding that the respondents is the sole owner of the suit land. It clearly appears from

the records from trial tribunals that there was no evidence to indicate that both parties were legal owners of the disputed land apart from being just administrators of different -- -- - -estates. The evidence from the PW2 (Marina Mkwana) who is the mother of all parties in this dispute is very clear at page 7 of the proceeding where she testified that the dispute land belonged Asilia Kipokile and not the respondent. She said that "the late Asilia is the one who took care of both parties from their childhood until4hèy grew up. The question is how could the District. Land and Housing Tribunal chairman reached in to the conclusion by just giving plain - statement that the land belongs to-the respondent?. This is found in n----- hisl.ast paragrapft of his judgrnent which reads as follows: "The respondent has prOvedthe case that the siit land r belonged .. to. the late. Makonie, Kipokile:whoJeftthe. land. to —his-daughter-and-te-respodent being theadministrator, the counterclaim is allQWed withdeclaratorzLorder . that the land belongs to the respondent as the administrator". Reading the lines between, even if the respondent was proved to be the administratorh.owcrneshejend..belongedto. him?. The records —shows-the-respondent was administratorof-different estate and not the land in dispute which appears to be the estate of late Asilia Kipokile. The evidence PW3 (the mother of the

appellant and respondent) was supported by the evidence of PW4 who also testified 4 similar evidence that the land belonged to Asilia Kipokile (the deceased). The other point to be determined is whether the Tribunal Chairman took into account the opinion of the assessors' as contended by the appellant's learned counsel and if he departed whether he gave reasons as provid.ed by the law. In this point, I will refer the relevant law that is the Land Disputes Courts Act, Cap 216 [R.E.2002]. The law under section 24 clearly provides that: "In reaching the decision- 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 judgment give reasons for differing with such opinion". From the above provision it is clear that though the law does not oblige the Chairman to be bound by the opinion of assessors' but - according to that provision where he/shediffers with their opinion he must give reasons for differing with such opinion. The word "shall" under the last paragraph implies mandatory. - Indeed there is no onsidered the opinion ofAseQrs. fhe.chairman..in.hi&.judgment at.pagejust..sated.asiollows: ."I will therefore. not: co id.ethefieldoiinion and proceed 23 i3f AtNo'2f2OO2 and I believe justice will be done to both parties". Section 23(3) of the Land Disputes Courts Act, Cap 216 [R.E2002J provides

that; "(3) Notwithstanding-the-provisions of sub-section (2), if in the course of any proceedings before the Tribunal either or both members of the Tribunal who were present at the commencement of proceedings is or are absent, the Chairman and the remaining member (if any) may continue 6-1 and conclude the proceedings notwithstanding such absence". There is nowhere on the record to show that in the course the Tribunal proceedings either or both members of the Tribunal who were present at the commencement of proceedings were all absent. Given the nature of this case and the circumstance in my considered view, the trial Tribunal chairman was required to take into account all maters including assessors" opinion to assist him in reaching the fair and justice decision. The records further reveals that the Tribunal Chairman in his judgment did not give reasons for his Judgment. In his judgment the Tribunal Chairman merely stated as follows: The suit: is.therefore.dismissed and the Counter - Claim is allowed with declaratorij order that the land belongs to the Respondent as theadrninistrator". I - There is no any evidence under the proceedings to show that the disputed land belonged to the respondent. Even the respondent - -- witnesses in their evidencedidn't. say the land belongs to the jumped into the conclusion by declaring the respondent the owner without any

reasons?. its decision must analyses and consider all evidence from both parties, sicnme thingwhich was .not done by ----- ribunalas-inditate.dfromthe records . - .L agree . with the applicant's submission that the Tribunal Chairman in his decision erred in law by not giving his reasons in his judgment by just merely giving a declaratory order that the land belongs to the respondent as 11 administrator. The rationale for clearly analyzing and determining whether the evidence is acceptable as true or correct, was clearly discussed by the court in the case of Jeremiah Shemweta versus Republic [1985] TLR 228, where it was held:- "By merely making plain references to the evidence adduced without even showing how the said evidence is acceptable as true or correct, the trial Court Magistrate failed to comply with the requirements of Section 171 (1) of the Criminal Procedure Code Section 312 (1) of the Criminal Procedure Act, (1985) which requires a trial court to single out in the judgment the points for determination, evaluate the evidence and make findings of fact thereon". In our case, the tribunal just recorded evidence from the appellant without analyzing and considering the evidence. The Tribunal appears to have focused moreon the evidence from Théipôids which was not properly analyzed and considered. For more easy reference I wish to reiterate the equation of the Judgment as

quoted in. the foregoing pages as follows: id.th case that the suit land ........... . k. ptjg Qthe.Jat&MaicorjeKipokiIe.who left the land to his daughter and the respondent being the administrator, the counterclaim is allowed with. declaratory order that the land belongs to the respondent as the administrator". —Lookingbetweenthe . iines;thf tatem nt undefthea:bove paragraph does not indicate as to how the tribunal chairman came into that plain conclusion.without giving.his reasons. -Again one could wonder r:as to how.the. Tribuna1coul&haveTrëachedsuch conclusion without properly analyzing the evidence. Basing on the above, it appears the Tribunal did not determine some key issues before reaching its conclusive decision as to the legal 7 owner of the land in dispute. I also wish to borrow a leaf from the decision by Hon.Judge Ngwala J in Joseph Anyelwisije Versus Fredrick Mwaipungu , Miscellaneous Land Appeal No 27 Of 2013, The High Court Of Tanzania, AtMbezja (unreported) where the court observed and stated that; "in the quoted paragraphs, there is no evaluation of evidence by the tribunal". No reasons advanced that convinced the Hon. Chairman that the land actually belongs to the Respondent. His decision is based on undisclosed reasons known to him not even known to one of his assessor". The position of the law with regard to judgments is very clear as - indicated in the

case IAV itëd abövc (Jéfê7ljàhSh,ä versus Republic (supra) it is trait that a Judgment, must contain the reasons for the decision and must evaluatethe evidence, in place. For this easons,I therefoe..,in. agreementwththe-iearned - - Jeasons is no doubt bad in law. - 'From:what I hay Qnd_inryobservationfrom the analysis of • that the Tribunal Chairman did not direct himself to the key issues in deermining owneppippertyJn...dispute. Some of the -appellant's-grounds..(theiirst,.secon&an&third) of appeal have merit. I am therefore of the firmed view and hold that the respondent is not the legal owner of the land in dispute as ordered by the District Land and Housing Tribunal. As I alluded earlier basing on evidence from the records that both the appellant and the respondent were administrators of different estates of two different deceased persons. While the records shows that the appellant was the administrator who was in the custody of the land in dispute that belonged to Asilia Kipokile, the respondent as indicated in the records was an administrator of different estate and not the disputed land. It is thus my considered and firm view that since the appellant was the administrator of the d.eceased estate that is the land in dispute, he is in the better position to be a custodian of the deceased land and perform his duties of an administrator as required by the law. This means

that the property in disputed is required to be divided among - the surviving- beneficiaries if any under the supervision of the appe1lant-in accordance with the law; - For the foregoing reasons, it is my considered opinion that the land in dispute does .not belong .to the respondent on the reasons I have given above. There is no ev1dencetQshow.that.theJandbeiong-to..the- -- is ••- •accodinglyaiIb dThëdecision of the District Land and Housing - - . - Tribuna-is- set-asideIirthecircumstanceDf this case and given-the L - T:factthathep 1 ItctIx. aoordetsas....tocosts.. Each - party to hear its own costs. Right-oppea1--Explained. DR. A. J. MAMBI

JUDGE 23.12. 2016 WO / Judgment delivered in Chambers this 231h day of December, 2016 in presence of both parties. CO/ \ flR. A. J. MAMBI

JUDGE 23.12. 2016 .------ 10