Jinumbu Zengo Administrator of the Estate of Zengo Jigado Jigada vs Jisandu Kulwa

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA MISC. LAND APPEAL No. 27310 OF 2023 (OriginatingfromtheDistrictLandandHousingTribunalforMleleatKataviinLand ApplicationNo.20of2022) JINUMBU ZENGO (ADMINISTRATOR OF THE ESTATE OF ZENGO JIGADO JIGADA).................................................................... APPELLANT VERSUS JISANDU KULWA..................................................................... RESPONDENT JUDGMENT MWENEMPAZI, J. The present appeal traces its origin from the District Land and Housing Tribunal of Mlele at Katavi (trial tribunal) before which the appellant applied for an order for vacant possession of the land in dispute which unlawfully occupied by the respondent herein. It is in the records that, the appellant alleges the disputed land which is approximated to measure 100 acres was lawfully obtained by his late father known as Zengo Jigado Jigada in the 1990’s and used it for about 10 years before shifting to another area called Mnyamasi in the year 1 2000 in which he left the 100 acres to someone known as Shija Pembelaga. It is however unfortunate that, in the year 2003 appellant’s father passed away and the said Shija Pembelaga started to sell off the 100 acres, in which he sold and among the buyers was Nicholaus Ngasa who bought 41 acres. According to the appellant, it was this person, Nicholaus Ngasa who also sold to the respondent herein. At the trial tribunal, it was the appellant’s prayer that the respondent to be ordered to vacate the disputed 13 acres of land as all others who were also occupiers of parts of the 100 acres had already vacated the same and handed over to the appellant except for the respondent. Nevertheless, at the end of a full trial, the trial tribunal held that the person who wishes to prove the existence of a certain fact, the burden to proof shall lie upon him as stipulated under Section 110 of the Evidence Act, Cap 6 R. E. 2022, and decided that the appellant did not furnish his burden fully. The trial tribunal also held that failure to cross examine a witness on a certain matter entails acceptance of that matter, whereas the appellant failed to cross examine the respondent as to how he had obtained the disputed 13 acres from the year 2004 and occupied it up until 2019. 2 Again, the trial tribunal held that the respondent is an adverse possessor who has been in actual possession of the 13 disputed acres without any interruption since the year he acquired the same until the year the appellant appeared to claim that he 13 acres belonged to his late father. Therefore, the 13 acres were ordered to be lawfully owned by the respondent and therefore the Application filed by the appellant was dismissed, hence this appeal to this court. Being dissatisfied by that decision, the appellant armed himself to this court with his Petition of Appeal which consisted five (5) grounds in which I find best to reproduce as hereunder; i. That the trial tribunal grossly erred in law and fact by declaring the respondent to be the rightful owner of the disputed land without a visit to the disputed land (locus quo). ii. That, the trial tribunal grossly erred in law by applying the principle of adverse possession in resolving the dispute at hand contrary to the pleadings, evidence and neither party wasaccordedtherighttoaddressit. i.That, the trial tribunal grossly erred in law and fact by declaring the respondent to be the rightful owner of the disputed land who acquired unlawfuly the disputed land previouslyownedbytheappelant’slatefather. 3 iv.That thetrialtribunalgrosslyerredinlawbyfailingtotake into considerations the opinions of the assessors who unequivocalopinedthat,theappelantistherightfulownerof thedisputedland. v.That,thetrialtribunalgrosslyerredinlawbyfailingtoresolve the dispute while there was naked evidence who the appellant proved to have the rightful owner of the disputed land. The appellant then prayed for this appeal to be allowed with costs. The decision of the trial tribunal be quashed and set aside, an order that he is the rightful owner of the disputed land, respondent to vacate the same and costs of this matter to be borne by the respondent. On hearing of this appeal, both sides fended off for themselves as they had no legal representation. However, this court deemed fit that they both conduct this hearing by way of written submissions, in which leave was granted to the parties and they fully adhered to the scheduling of the dates for filing their respective submissions. In his written submission, the appellant stated that the essence of the court attending the locus in quo with the parties is provided in the case of Kimonidimitri Mantheakis vs Ally Azim Dewji & Others (Civil Appeal No. 4 of 2018 [2021] TZCA 663 (3 November-2021), available on 4 Tanzlii, which therein cited the case of William Mukasa vs Uganda [1964] E.A 696 at page 700, Sir Udo Udoma G (as he then was) held as follows: “Aviewofalocusinquooughttobe,Ithink,tocheckonthe evidencealreadygivenandwherenecessaryandpossible,to have such evidence particularly demonstrated in the same way a court examines a plan or a map or some fixed object already exhibited or spoken of in the proceedings. It is essential that after a view of a judge or magistrate should exercise great care not to constitute himself a witness in the case. Neither a view nor personal observation should be a substitute for evidence. ” He added that, similarly, in the case of Avit Thadeus Massawe vs Isidory Assenga, Civil Appeal No. 6 of 2017 (unreported) available on tanzlii which therein cited the Nigerian case of Akosile vs Adeye (2011) 17 NNWLR (Pt 1276) p.263 in determining the 7 propriety or otherwise of the locus in quo considered as well its essence having relied on the where it was held: “Theessenceforthev s tofthelocus nquo nlandmatters ncludeslocat onofthed sputedland,theextent,boundar es 5 andboundaryneighbour,andphysicalfeaturesontheland. ThepurposeistoenabletheCourtseeobjectsandplaces referredtoinevidencephysicalyandtocleardoubtsarising fromconflictingevidenceifanyaboutphysicalobjects”. In the light of the cited decisions, the appellant submitted that for the visit of the locus in quo to be meaningful, it is instructive for the trial Judge or Magistrate to: One, ensure that all parties, their witnesses, and advocates (if any) are present, two, allow the parties and their witnesses to adduce evidence on oath at the locus in quo; three, allow cross-examination by either party, or his counsel, four, record all the proceedings at the locus in quo; and five record any observation, view, opinion or conclusion of the court including drawing a sketch plan if necessary which must be made known to the parties and advocates, if any. That, in the matter under scrutiny, in the event neither the Court nor the parties could land its eyes on the proceedings during the visit in the locus in quo, it can safely be concluded that nothing was recorded during the said visit, therefore, in the absence of the recorded proceedings it cannot be discerned as to who was in attendance; if the witnesses were asked to clarify what they stated at the trial under oath; if opportunity was given to the respective parties to make cross­ 6 examinations and any observation by the trial judge must form part of the proceedings. As per the first ground of appeal, the appellant concluded that in this case at hand, during the trial, the trial tribunal did not visit the locos in quo but rather pronounced the respondent to be the rightful owner, that, this omission occasioned a miscarriage of justice hence lead to this appeal. Submitting on the second ground of appeal, the appellant stated that it is trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded by the court. He urged this court to see the case of James Funke Ngwagilo vs Attorney General [2004] TLR 161 which stated that; "It is the principle of the law that parties are bound by their ownpleadingsandthatanyevidenceproducedbyanyofthe parties which does not support the pleaded facts or is at variancewiththepleadedfactsmustbeignored.” 7 By way of emphasis, the appellant referred this court to a passage of an article by Sir Jack. T.H Jacob “the present importance of pleadings”, first published in current legal problems (1960) at page 174 thus: “Asthepartiesareadversaries,itislefttoeachoneofthem toformulatehiscaseinhisownway,subjecttothebasicrules of pleadings.... for the sake of certainty and finally, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is not part of the duty of the court to enter up on any inquiry into the case before it, other than to adjudicate up on the specific matters in dispute which the parties themselves have raised by their pleadings” Wrapping up the second ground of appeal, the appellant stated that in this case the trial tribunal raised an issue of adverse possession while no any party establish this principle either in pleading nor in adducing evidence. 8 Submitting on the third ground of appeal, the appellant stated that the decision of the trial tribunal was reached without a proper examination of the compelling evidence presented by him, instead the tribunal gave weight to the respondent evidence while he failed to provide supporting evidence to substantiate his claim to the disputed land on how he acquired the disputed land. That, the respondent acquired the disputed land without following the proper procedure of acquiring land. He further added that, at the trial tribunal, the appellant testified that the owner of the disputed land was his late father who owned the said land since 1990 but in 2000 his father left for another village and the disputed land was released to Shija Pembelaga as a caretaker up to when his father died in 2003, after his death, the caretaker unlawfully and without having good title over the land started to sale the land to Mathias Jerad, Nkwangu and Nicholaus Ngasa and thereafter, Nicholaus Ngasa sold to the Respondent. The appellant insisted on this ground of appeal by urging this court to see the Land Dispute No. 35/2019 at the Ward Tribunal which was between the Appellant as the claimant and Nicolaus Ngasa, Mathias Kisena, Nkwangu Katale and Jisandu Kulwa as the respondents and now Jisandu Kulwa is the respondent in this appeal. 9 In clarification of the Land Dispute No. 35/2019, the appellant stated that the Ward tribunal decided the case in favour his favour, in which the disputed land to this appeal was part of the land claimed by the appellant in land dispute, No.35/2019 as the reasons is that the one who sold the land has no legal title but was a caretaker and among the seller was the respondent at the tribunal and they decided themselves to return back the land to the appellant but only the respondent refused to do this. Winding up ground number three, the appellant stated that, the respondent is a trespasser as he unlawfully acquired the disputed land by buying from a seller who had no good title even though he denied to this but land dispute No.35/2019 prove this. Coming to the fourth ground of appeal, the appellant submitted that Section 24 of the Land Disputes’ Courts Act [Cap 216 R.E 2019] requires that the chairman takes into account the opinion of the assessors even though shall not bound by it but shall give reasons for differing with such opinion. That, on the third page of the judgment the chairperson recorded what it was the opinion from the assessors; 10 “MaryD.Kaguta,alikuwanamaonikuwaeneolibakilamleta maombina, A-J. Nkonkosha, alikuwa na maoni kuwa eneo la mgogoro libaki kumilikiwa na mleta maombi kwa aliyeuza si mmiliki halaliwaeneohilo”. That, the trial tribunal went on and concluded as seen in its judgment on page 5 as follows: “'Nimeiziagaita maoni ya wajumbe hata hivyo natofawutana na maoni yao kwa sababu muombaji hakuthibitisha kama mjibu maombi aiiuziwa na Nichoiaus Ngasa. Hata hivyo mjibu maombi amethibitisha kukaa katika eneo hiIo kwa muda mrefu. Maombi haya yanatupiiwa mbal” Therefore the appellant instated that, the trial tribunal did not give strong reasons as to why the learned chairperson differed with the opinions of the assessors even though they (assessors) opined that the appellant is the lawfully owner of the disputed land but finished by saying that the appellant failed to prove his case, but did not state on how the appellant failed to prove his case, also on the part of long occupation of respondent in the disputed land does not amount the respondent to be rightful owner of the said land. 11 Submitting on the last ground of appeal, the appellant stated that, it is the paramount principle of law that under Section 3(2)(b) of the Evidence Act, Cap 6 R. E. 2019 which states that:- “Afactissaidtobeprovedwhen,incivilmattersincluding matrimonialcausesandmatters,itsexistenceisestablishedby a preponderance ofprobabilities” The appellant referred this court to the case of Paulina Samson Ndawanya vs Theresia Thomas Madaha, Civil Appeal No. 45 Of 2017 (Unreported) available in Tanzlii where this Court stated that- “It is equally elementary that since the dispute was in civil case, the standard of proof was on balance of probabilities which simply means that the Court will sustain such evidence which is more credible than the other on a particular fact to be proved. ” He added that, in this case the evidence of the appellant was straight and clear, also was credible other than the evidence adduced by the respondent which is contradictory between him and his witnesses and no any witness who proved how the respondent got the suitland, but the trial tribunal does not take into consideration the abundant evidence 12 which was satisfactory to prove that the appellant discharged his burden to prove that he is the rightful owner of the Suitland. All in all, the appellant finalised that, the grant of the land to the respondent was invalid and, on this point, he is supported by his testimony as ‘SM1’ which has proved that his father owned the suitland since 1990 while the respondent purported to have ‘kujikamatia ardhi’ since 2004, when the appellant’s father was already in occupation. That, to this observation there was no due diligence on the part of the respondent in the whole process of‘kujikamatia ardhi.’ From his submission, the appellant prayed for this court to allow his appeal and in so doing, quash the decision of the trial tribunal and a declaration that he is the rightful owner of the disputed land. Essentially, the respondent refuted the grounds of appeal paraded in discontent of the findings' of the decision of the trial tribunal, and firstly insisted that there is no any provision of the law that states it is mandatory for the tribunal to visit the locus in quo and also insisted that he acquired the disputed land in 2004 by clearing a bush in which he cultivated for about 15 years without any interruptions and it is the position of the law that if one acquires the right of ownership of land by long possession of the particular land. 13 Nevertheless, the respondent also submitted that the chairman is not bound by the opinions of the assessors, and lastly that, the trial tribunal correctly evaluated evidence of both parties and found that the respondent is the rightful owner of the suitland. After reading the records before me and the submission made by both sides, it is my fortified reasoning that from the above reproduced grounds of appeal the second ground of appeal is considered by this court to be determinative. Therefore, the only determinative issue in this appeal will be whether the trial tribunal properly construed the principle of adverse possession. It has been held in various decisions by this land’s supreme court where it has quoted with approval the two English decisions - viz - Moses vs Lovegrove [1952] 2 QB 533; and Hughes vs Griffin [1969] 1 All ER 460. In those cases, it was held that it is trite law that a claim for adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner or in pursuance of an agreement for sale or lease or otherwise. Thus, on the whole, a person seeking to acquire title to land by adverse possession had to cumulatively prove the following: - 14 (a)That there had been absence ofpossessionbythe true ownerthroughabandonment. (b) That the adverse possessor had been in actual possessionofthepieceofland; (c) That the adverse possessor had no color of right to be there other than his entry and occupation; (d) That the adverse possessor had openly and without the consent of the true owner done acts which were inconsistent with the enjoyment by the true owner ofland for purposes for which he intended to use it; (e) That there was a sufficient animus to dispossess and an animo possidendi; (f) That the statutory period, in this case twelve years, had elapsed; (g) That there had been no interruption to the adverse possessionthroughouttheaforesaidstatutoryperiod; and (h)Thatthenatureofthepropertywassuchthat nthel ght oftheforego ng/adversepossess onwouldresult. 15 [Emphasis added] In the situation at hand, the respondent has claimed that he had acquired the disputed land in the year 2004 as it was a bush. From that year, he cultivated it for about 15 years up until the year 2019 when the appellant appeared and claimed that the very land belonged to his late father and that the respondent is a trespasser. However, in his submission the appellant stated that the principle of adverse possession was not pleaded anywhere by any of the litigants in this matter, but in his testimony at the trial tribunal, the respondent claimed that he has been in the said land for over 15 years without any interruption and the appellant never cross examined on the same, to me it was correct for the trial tribunal to conclude that the respondent has been in adverse possession of the disputed area and therefore he is now the rightful owner. As the matter of fact, twelve years statutory period had elapsed whereas the respondent was in constant possession of the disputed land without being disturbed by anyone. It is in the records that, the appellant claims the respondent to have bought the suitland from a person known as Nicholaus Ngasa, but this person testified as SU2 and in his testimony he recognised the 16 respondent as his neighbour at the disputed land and not the buyer as claimed by the appellant as he (SU2) came to that area in 2007. It is my firm holding that to wait for about fifteen (15) years to reclaim the possession of a land, it is to sleep on one’s right, even if it were true that the late appellant’s father once owned the disputed land. It is a settled principle of law that a person who occupies someone's land without permission, and the property owner does not exercise his right to recover it within the time prescribed by law, such person (the adverse possessor) acquires ownership by adverse possession. The circumstances under which a person seeking to acquire title to land under that principle were aptly explicated in the case of the Registered Trustees of Holy Spirit Sisters Tanzania vs January Kamili Shayo and 136 Others, Civil Appeal No. 193 of 2016, CAT (unreported). In that regard, I am convinced that the trial tribunal managed to properly construe the principle of adverse possession in ordering that the respondent is the rightful owner of the disputed land. I too concur with the decision of the trial tribunal. I do pen off by insisting that I have not been moved by the appellant’s neither the grounds of appeal nor his submissions to make me fault the 17 decision of the trial tribunal. Consequently, I proceed to dismiss this appeal with costs. The decision of the trial court is hereby upheld. It is so ordered. Dated and delivered at Sumbawanga this 27th day of September, 2024. T. M. MWE 18