joseph anyelwisye vs fredrick mwaipungu 2015 tzhc 2268 13 august 2015

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT MBEYA MISCELLANEOUS LAND APPEAL NO. 27 OF 2013 (From the District Land and Housing Tribunal fo r Rungwe at Tukuyu. Appeal No. 15 o f 2010 Original Nkunga Ward Tribunal in Dispute No. 6 o f 2009) JOSEPH ANYELWISYE............................................... APPELLANT VERSUS FREDRICK MWAIPUNGU......................................... RESPONDENT JUDGMENT Date o f last Order: 21/07/2015 Date o f Judgment: 13/08/2015 A.F. NGWALA, J. Before the Ward Tribunal of Nkinga Ward, the Appellant unsuccessfully sued the Respondent for trespass to a piece of land. His appeal to the District Land and Housing Tribunal for Rungwe was dismissed. Still protesting that he is the rightful owner of the suit premises, he made his way to this court before Mwaimu, J where it was ordered that the Ward Tribunal submit a copy of its decision to the District Land and Housing Tribunal for it to decide the appeal on merits. Earlier the tribunal dismissed the appeal on grounds of technicality that the Ward Tribunal did not submit the original decision, hence the Chairman struck out the Appeal for want of the tribunal’s decision . l Instead of the Ward Tribunal to submit a copy of its decision to the District Land and Housing Tribunal as ordered the Ward Tribunal wrote a letter informing that tribunal that the original decision is nowhere to be found. The District Land and Housing Tribunal therefore decided to determine the Appeal basing on the photocopy of the decision whereby it once again dismissed the Appeal, upholding the Nkinga Ward tribunal’s decision. Still undaunted the Appellant has preferred this Appeal. In this Appeal as it was in the District Land and Housing Tribunal the Appellant is represented by Mr. Justinian Mushokorwa, learned Advocate while the Respondent is unrepresented. Mr. Mushokorwa on behalf of his client filed two grounds of appeal as follows: 1. That the District Land and Housing Tribunal erred in law and fact when it held that the Appellant had failed to elaborate in details his grounds of appeal and that the Respondent had proved his case without analyzing the evidence, points for decision and reason for the decision hence the said decision was bad at law. 2. That the appellate tribunal erred in law and fact when it held that the trial tribunal reached at a proper and justifiable decision in the absence of an authentic copy of the said decision reported missing by the ward tribunal in its letter dated 21st March, 2013 to the District Land and Housing Tribunal (Annexed as Annexture “A”) instead of ordering the wt to rewrite and certify its decision on the basis of the photocopy decision in possession of the parties. In his reply to the Petition of Appeal, the Respondent strongly denied both grounds allerging that the District Land and Housing Tribunal properly upheld the decision of the Ward Tribunal. When the matter was called on for hearing, Mr. Mushokorwa opted to argue only the 1st ground abandoning the second one. The learned Counsel argued that the Judgment of the District Land and Housing Tribunal did not evaluate the evidence that was adduced before the ward tribunal. He contended that every Judgment must contain the issues or facts and reasons for the decision, but the Judgment of the District Land and Housing Tribunal did not contain those essential ingredients. He cited cases of Jeremiah versus Republic [1985] TLR 228 and that of Caritas Tanzania versus Stewart [1999] TLR 239. Mr. Mushokorwa urged this court to re-asses the evidence on record and make its own findings, citing the Court of Appeal decision in Martha Wegga versus A. G. [1982] TLR 35 at pg 43. The learned Counsel submitted that the Respondent’s father had leased the suit premises and that is why he left in 1966 and never returned till 2008 when he sent his son to plant bananas. All the time between 1966 to 2008, the disputed area has been used by the Appellant and his father. The learned Counsel thus argued that if the Respondent left the suit premises for more that 12 years, then he could not come and claim back the land. Mr. Mushokorwa averred that out of ten people who were interrogated at the locus in quo, eight people said that the land belonged to the Appellant’s father; hence the two tribunals below erred in their decisions. In response to the leaned counsel’s submission, the Respondent submitted that his Reply to the Petition of Appeal should be adopted. He submitted further that the two lower tribunals did justice as the land in dispute belonged to his father. Referring to the submission by the learned counsel for the Appellant, the Respondent averred that the fact that eight people out of ten testified to the effect that the land belonged to the Appellant is not a point to consider for what was stated just “ushabiki wa w enyejf meaning that it is just the preference of the villagers to testify that way. In his rejoinder, Mr. Mushokorwa was of the view that the Defendant did not win the case at the ward tribunal as he alleges, since there was no Judgment. It was also his argument that the issue of “ushemejz” should be given due consideration for the sake of capturing the history of the disputed land. I had ample time to go through the records of both tribunals below, including the Judgment of this court delivered by Mwaimu, J; who ordered that the trial tribunal should submit a copy of the original decision into the District Land and Housing Tribunal so as to determine the appeal on merits. It is very unfortunate that the said decision of Nkinga Ward Tribunal could not be produced. As such as it is apparent on records that the Hon. Chairman of the District Land and Housing Tribunal for Mbeya continued to determine the Appeal before him basing on the photocopy whose original could not be traced. Indeed as properly opined by Mr. Mushokorwa prudence required that since the trial ward tribunal is still in existence and the proceedings of the tribunal are in place, the learned chairman of the District Land and Housing Tribunal should have ordered that the decision be written and submitted to the tribunal for it to determine the Appeal on merits instead of accepting a letter from the tribunal and proceed with the Appeal. Let me not devolt much time on that, as it is helpless by now. I shall endulge myself to resolve the grounds of appeal laid down by the Appellant’s Counsel. In the first Ground of Appeal, it is contended that the Appellate Tribunal erred in law and fact when it held that the Appellant had failed to elaborate his Grounds of Appeal and that the Respondent had proved his case without analyzing the evidence, points for decision and reasons for the decision rending the decision to be bad at law. As alluded herein above, I took trouble to peruse the said Judgment of the tribunal. I have no hesitation to say that in law, that was not a judgment. I am therefore in all fours with the learned Counsel for the Appellant that the said decision is bad in law. The reasons are clear. A Judgment, strictly so called, must contain the reasons for the decision and must evaluate the evidence in place. The learned Chairman in arriving at his decision is quoted saying:- “I had ample time to peruse the record o f trial ward tribunal and the written submissions, and I have came (sic) in conclusion (sic) that the Respondent proved his case on balance o f probabilities that the land to belongs (sic) to him/ his father. So I do support the assessors opinion that the appeal to be dismissed. ” In the quoted paragraph, 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 his assessors. In the circumstances can it be said with certitude that there is a Judgment? In the case of Jeremiah Shemweta versus Republic [1985] TLR 228, also cited by Mr. Mushokorwa in his oral submission, this court 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 o f Section 171(1) o f the Criminal Procedure Code Section 312 (1) o f the Criminal Procedure Act, (1985) which requires a trial court to single out in the judgm ent the points fo r determination, evaluate the evidence and make findings o f fa ct thereon”. I wish to emphasize here, that though the learned Judge in the above case, named the trial court, the requirement to evaluate the evidence and give reasons for the decision is incumbent upon all those who write judgments; be it a Judge, Magistrate or Chairman of the tribunal. It is worth observing that for a Judgment to be properly so called, the evaluation of evidence, points for determination and reasons for the decision are the pre-requisite elements that must be available. The first ground of appeal is thus sustained. The Judgment in Appeal must contain the following essential contents as provided for under Order XXXIX Rule 31 of the Civil Procedure Code Cap. 33 R. E. 2002 which provide that:- “31. The Judgment o f the court shall be in writing and shall state (a) the points fo r determination; (b) the decision thereon; (c) the reasons fo r the decisions; and (d)where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the court. That is in the second Ground of Appeal, the learned Counsel for the Appellant averred that the appellate tribunal erred in law and fact when it held that the ward tribunal reached at a proper and justifiable decision in the absence of an authentic copy of the said decision reported missing by the ward tribunal in its letter dated 21st March, 2013 to the District Land and Housing Tribunal instead of ordering the ward tribunal to re-write or copy and certify its decision on the basis of the photocopy decision in possession of the parties. I need not detain myself much on this, as I have already discussed it right at the outset when I started reasoning on the appellate tribunal’s judgment. The law of evidence requires that whenever possible in evidence, the original document must be produced; where that cannot be done, a certified copy of the document must be tendered. It appears awkward therefore for the appellate tribunal to have received uncertified copy of the trial ward tribunal’s decision without seeing the original and continues to work on it as provided under Section 65(a) of the Evidence Act, Cap. 6 R.E. 2002 read together with Section 51 of the Land Disputes Court’s Act, Cap. 216 R. E. 2002. It follows therefore that, the appellate tribunal erred in law when it held that the ward tribunal reached at a proper and justifiable decision in the absence of an authentic copy of the said decision. That said, I allow the second Ground of Appeal as well. Under normal circumstances I am expected at this particular juncture to nullify the Judgment and Decree of the Appellate Tribunal and order trial de novo upon obtaining of a genuine copy of the Judgment. However, for the sake of justice, I shall only nullify the Judgment and Proceedings of the Appellate Tribunal and continue to re-assess the evidence of the trial ward tribunal so as to avoid further delay of justice. It is well known that justice delayed is justice denied. Thus I find it is not convenient to order that for this case go back to the District Land and Housing Tribunal for the third time to be re-heard as that would cause inconvenience to the parties as well as the denial of justice itself. I hence forth take this glorious moment to determine the appeal on merits. The justification for this court to continue with the appeal on merits despite the irregularities pointed out above is derived from the case of Martha Wejja versus A.G. [1982] TLR 35 cited by the learned Counsel for the Appellant where it was held that “no election petition shall be dismissed for the reason only of a procedural irregularity unless such irregularity has or is likely to result into the miscarriage of justice” The dispute commenced at the Nkinga Village Land Council where the Respondent was the Applicant. He emerged victorious. Dissatisfied with the decision of the Village Council, the Appellant unsuccessfully appealed to the Ward Tribunal of Nkinga which decided in favour of the Respondent mainly on the ground that the Respondent’s Father had once upon a time built a house on the suit premises. In addition, the villagers who opined for the Respondent stood on the fact that the suit premises had trees planted by the Respondent’s father one Lyatinga Lukata. It is this fact that, the appellate tribunal had conquered with. If we examine the evidence carefully at the Ward Tribunal, we see that as 9 correctly pointed out by Mr. Mushokorwa eight out of ten Villagers who were at the locus in quo said that the land belonged to the Appellant who inherited the same from his father who was a Chief. In fact they traced the inheritance way back in 1948 when the suit premises were used by the Appellant’s descendants (fore grandfathers). In the records, it appears that the Respondent’s father one Fredrick Mwaipungu was married to the sister of the Appellant’s Father. In that respect it seems that he was welcomed to the suit premises and built a house there. The land might have been given to him by way of gift and hence acquired its ownership. The other way of thinking is the possibility that the Respondent’s Father had acquired possession of the suit premises by way of lease as it was argued by the learned Counsel for the Appellant. Be it that he was given the suit premises by way of a gift or that he acquired the same by lease, the question is why he abandoned it for almost 50 years from 1966 to 2008 whereby the suit land remained in the hands of his in laws. The law of limitation on actions for recovery of land is very clear. Section 3(1) of the Law o f Limitation Act Cap. 89 R. E. 2002 provides that, every proceeding for which a period of limitation has been provided in the First Schedule to the Act and which is instituted after the prescribed period of limitation shall be dismissed whether or not limitation has been set up as a defence. Item 22 of part I o f the First Schedule to the Law of Limitation Act provides that in suit for recovery of land the limitation period is 12 years. In the instant case, the Respondent’s Father had abandoned his land for almost fifty (50) years and all that time the land has been used by the Appellant’s family. In that respect even if the suit premises legally belonged to the Respondent’s Father, the ownership had already shifted to the Appellant by way of adverse possession. I find it pertinent to note here that, even if we assume that the Respondent’s Father one Lyatunga Lukata had leased the suit premises to the Appellant or his father, yet the law of limitation requires that the suit for recovery of land under Mortgage be instituted within 12 years and not more that that. This was stated expressly in the case of Malekela Mahita versus Kibuwi Nzengwa [1989] TLR 113, where Kyando, J, (as he then was) held thus: “The Law o f Limitation Act, 1971 defines a “mortgage” as including, where customary law applies, as in this case, any arrangement under customary law which has similar effect and incidents as a mortgage. A suit to redeem land in possession o f a mortgagee must be brought within twelve years as prescribed under the first schedule to the law o f limitation act, part I ......" (Emphasis mine). To put more emphasis, in John Cornel versus Grevo (T) Ltd; Civil Case No. 70 o f 1998 (unreported) inter alia Kalegeya, J. observed: “However unfortunate it may be for the plaintiff, the law of limitation on actions knows no sympathy or equity. It is a merciless sword that cuts across and deep into all those who get caught in its web. It is very unfortunate that, in the instant case, the respondent got caught in this merciless sword and I have nothing except to let him receive the rewards of falling into the web of the law of limitation. On the foregoing and for the above stated reasons, I allow the appeal; the decisions of both tribunals are hereby quashed. It is hereby declared that the appellant is the lawful owner of the suit premises. Costs to be born by the Respondent. It is so ordered. A.F. i JUDGE 14/08/2015 Date: 14/08/2015 Coram: A. F. Ngwala, J. Appellant: Present For the Appellant: Absent Respondent: Present For the Respondent: Unrepresented Court: Judgment delivered in court in the presence of the parties. Court: Right of Appeal to Court of Appeal of Tanzania explained. A.F. NGWALA JUDGE 14/ 08/2015