julius simon vs wilfred mashono 2016 tzhc 2155 13 september 2016

IN THE HIGH COURT OF TANZANIA

AT DODOMA MISC. LAND CASE APPEAL NO. 33 OF 2015 IFrom the Decision of the District Land and Housing Tribunal of Iramba District Kiomboi in Land Case Appeal No. 50 of 2014 and Original Ward Tribunal of Kinyangiri Ward in Application No. 1 of 2014) JULIUS SIMON.................................................................................APPELLANT

VERSUS WILFRED MASHONO.................................................................RESPONDENT

JUDGMENT 26/5/2016 & 13/9/2016. A. Mohamed, J: This appeal is against the judgment ot the District Land and Housing Tribunal of Iramba at Kiomboi. The mater had originated at the Kinyangiri Ward Tribunal. The appellant has raised the following grounds of appeal; 1. That the 1st appellate tribunal erred in failing to decide the appellant had better title to the disputed parcel of land having found he had occupied the same from 1992 to 2006.

2. That the 1st appellate tribunal erred in reversing the Ward Tribunal’s decision that had found the respondent had acquiesced to the appellant’s ownership of the land. i 3. That the 1st appellate tribunal erred in holding that Ramadhani Makala testified in favour of the respondent. Briefly stated, this is a dispute over ownership of a parcel of land. The appellant claims one Ramadhani Makala gave him a parcel of land measuring 20 by 177 paces as compensation. On the other land, the respondent claims he bought the suit land from Ramadhani Makala for shillings 6000/= and left the said land to Makala as caretaker. The Kinyangiri Ward Tribunal found Makala had given the same to the appellant with the respondent’s acquiescence of the disposition. On 26/5/2016, the parties were ordered to dispose of the appeal by way of written submission which they obliged. In support of his 1st ground of appeal, the appellant submitted he purchased the suit land from one Makange but found the same had also been sold to Ramadhani Makala on 21/12/1990. The Ward Tribunal resolved the dispute between the appellant and Makala and on 16/6/1992, that tribunal advised Makala to give the suit land to the appellant as compensation. Thereafter, the respondent had instructed Makala to settle the matter with the appellant and he would accept any result which Makala did. He concluded on by reiterating he has

been in occupation from 1992 until 2006 when the respondent laid claim to the suit land. In the 2nd ground of appeal, the appellant submitted that the respondent acquiesced that the suit land was given to him by Makala. He said the record of the Kinyangiri Ward tribunal proves his claim. 2 As to the 3rd ground of appeal, the appellant that Makala had testified he gave the suit land to the appellant as compensation. He finally urged this court to allow the appeal. In resisting the 1st ground of appeal the respondent countered the claim that the suit before the Ward tribunal was time barred. He said the appellant’s evidence was insufficient to convince the 1st appellate tribunal as his claim of possessing the suit land for over 12 years was a new fact not adduced at the Ward tribunal. As regard the 2nd ground of appeal the respondent maintained Mzee Makala was the respondent’s agent and he had no good title to pass to the appellant as he was not the owner of the suit land. The respondent joined hands with the appellant on the 3rd ground of appeal that indeed Makala testified in favour of the appellant at the Ward tribunal. But no title passed to the appellant as the respondent was the owner and did not dispose of any. After going through the parties’ contentions and upon reviewing the record, I have given my anxious consideration to this matter and discerned that key factual

questions were not been considered or resolved by the trial tribunal. It would, thus be difficult for any appellate tribunal to consider and determine any unresolved legal questions on unclear facts. 3 These outstanding questions include; whether the appellant has been in uninterrupted occupation of the suit land for a period of over 12 years; whether the respondent acquiesced to Makala, his agent, to dispose of the land to the appellant; and whether the agent was acting on the instructions of his principal. The trial tribunal’s proceedings and judgment were too brief and did not adequately canvass these key facts. I am in agreement with the opinion of the 1st appellate tribunal’s assessors’ opinion that the case should have been re­ heard before the trial tribunal and further Makala be joined as a necessary party in the fresh suit. This sound opinion was unfortunately disregarded by the learned 1st appellate tribunal’s chairman which has led to the present situation. I am also of the view the learned chairman misdirected himself by finding the respondent had failed to produce documentary evidence of Makala’s disposition of the suit land to the respondent. He had said that: the respondent (now appellant) has no (sic) any documentary evidence that he was given the same shamba by Ramadhani Makala alias Shani. Even the (sic) Ramadhani Makala gave evidence in favour of

the appellant (now respondent)...” It is clear from the Kinyangiri Ward tribunal’s record; Makala had confirmed he gave the suit land to the appellant on the respondent’s acquiescence of the disposition. As the issue was not in contest, there was no need for documentary evidence to prove that fact. From the foregoing reasons, I quash the proceedings and set aside any orders of the 1st appellate tribunal as well as the trial tribunal. I further order the suit to be heard de novo and Ramadhani Makala be joined as a necessary party. In these circumstances, I make no order as to costs. It is so ordered. A. MOHAMED

JUDGE 13/ 9/2016 The right of Appeal Explained. 5