juma hasan luvasile administrator of the estate of the late hasan said luvasile vs mashangilio chusi 2 others 2023 tzhc 19241 25 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) AT IRINGA LAND APPEAL CASE NO. 52 OF 2022 (Originating from Application No. 28/2018 of the District Land and Housing Tribunal of Iringa before Hon. A. Majengo, Chairperson.) JUMA HASAN LUVASILE (Administrator of the estate of the late Hasan Said Luvasile) .......................................... APPELLANT VERSUS MASHANGILIO CHUSI ........................................ 1st RESPONDENT HELIOS TOWERS TANZANIA INFRANCO LIMITED .......................................... 2nd RESPONDENT VODACOM TANZANIA PLC.................................... 3rd RESPONDENT JUDGMENT 11th May & 2dh July, 2023 I.C MUGETA, J: The dispute ■ in this matter is over a piece of land situated at Njiapanda street, Zizi within Iringa Municipal. The record shows that the appellant and the 1st respondent had a sale agreement where the appellant sold his piece of land to the 1st respondent. The 1st respondent leased the land to the 2nd respondent who then leased to the 3rd respondent for construction of telecommunication tower. In 2010, the appellant noticed that his land was trespassed by unknown person. Upon making follow ups, Page 1 of 11 he realized that the 1st respondent had leased the suit land to the 2nd respondent who sub leased to the 3rd respondent. The appellant sued the respondents before the District Land and Housing Tribunal of Iringa claiming ownership over the suit land. The tribunal dismissed the appellant's application with costs for lack of merits. The appellant discontented with this decision, filed this appeal based on the following grounds:- 1. That the learned trial Chairman erred on point of law and facts when entertained and ruled in favor of the respondents while the matter is tainted with irregularities. 2. That the learned trial Chairman erred on point of law and facts by failing to consider, evaluate and properly analyze the evidence brought by both parties and their witnesses and hence reached an erroneous decision. The appeal was argued by filling written submissions. The appellant was unrepresented whereas the 1st respondent was represented by Omary Khatibu, 2nd respondent represented by Malick Khatib Hamza and 3rd respondent represented by Juvenalis Ngowi, learned advocates. Page 2 of 11 In supporting his appeal, the appellant first submitted on the 2nd that it was wrong for the Chairman to hold that the appellant failed to prove his claim as he failed to describe the size and boundaries of the suit land. In his view, he properly described the land when giving evidence and that it is clear from the evidence that the land which was sold to Ngasi Erasto is the land in dispute. He cited the case of John Lihava v. Dominicus Nyenzi, Land Appeal No. 4 of 2022, High Court - Iringa (unreported) to support his contention that land can be described by evidence adduced before the tribunal. The appellant contended that he proved his allegations on the required standard of balance of probabilities. On the 1st ground, he argued that the tribunal record was tainted with irregularities as all the exhibits were not read out loudly after their admission, therefore, the appellant could not cross examine on the contents. He cited the case of Bulungu Nzungi v. Republic, Criminal Appeal No. 39 of 2018 (unreported) to support his argument that once an exhibit is admitted in evidence it must be read. In his view, the exhibits ought to be expunged as they were improperly admitted. He contended that in the absence of the documentary evidence, the oral evidence by the Page 3 of 11 respondents is not sufficient to prove the 1st respondent's ownership over the dispute land. The 1st respondent's counsel argued that the tribunal correctly evaluated and analyzed the evidence, thus, reached at a correct decision. He contended that the appellant failed to prove his case on the balance of probabilities against the respondents as he did not dispute transferring the suit land to the 1st respondent as evident by exhibit DI. The 1st respondent on the other hand proved his ownership over the land in dispute through purchase from the appellant. He cited the provisions of section 45 of the Land Disputes Courts Act, Cap. 216 RE 2019 which require court to deal with substantive justice and disregard irregularities and Regulation 20(1), (a), (b), (c) and (d) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations GN 174/2003 which provides for contents of tribunal judgment. In his view, the tribunal judgment complied with the above provision. Therefore, there was no any irregularity or omission which occasioned failure of justice. He argued further that the appellant in his pleadings did not describe the suit land which is very essential for purposes of execution. In his view, the appellant violated Regulation 3(l)(b) of the Regulations which require Page 4 of 11 land in dispute to be properly described. Moreover, in evidence the land was also not described by the witnesses. To support his contention that land in dispute ought to be clearly described, he cited the case of Martin Fredrick Rajab v. Ilemela Municipal Council and Synergy Tanzania Company Limited, Civil Appeal No. 197/2019, Court of Appeal - Mwanza (unreported). On the 1st ground, the 1st respondent's counsel argued that there are no any irregularities in the record as the exhibits were admitted according to the law and the appellant was given a chance to cross examine. The Regulations do not require reading a document after admission. He was of the view that the appellants knew the contents of exhibits DI and D2 as he was part of the sale agreement and also participated in the meeting. He distinguished the Bulungu Nzugu case cited by the appellant with the present case as that case is a criminal case which its rules require reading of exhibits after admission. The 2nd respondent's counsel opposed the 2nd ground that the tribunal clearly showed the inconsistencies in the appellant's evidence, pleadings and evidence tendered in court. He added that parties are bound by their pleadings as it was held in Juma Jaffer Juma v. Manager PBZ, Page 5 of 11 & Others, Civil Appeal No. 7/2002, Court of Appeal - Zanzibar (unreported). In his view, the Chairman properly evaluated the evidence as shown at page 5 of the impugned judgment. He argued that the appellant had a duty to prove his ownership over the suit land on the balance of probabilities as required under section 110 and 111 of the Evidence Act [Cap. 6 R.E 2022]. He cited the case of Barelia Karangirangi v. Asteria Nyalwambwa, Civil Appeal No. 237/2017, Court of Appeal - Mwanza (unreported) to support his contention that in civil suits the required standard is proof on the balance of probability. Opposing the 1st ground, the 2nd respondent's counsel argued that the appellant had an opportunity to object the admission of the exhibits but did not object. He argued that a document admitted without objection is deemed proved. To support his argument, he cited the case of Makubi Dogani v. Ngodongo Maganga, Civil Appeal No. 78/2019, Court of Appeal - Shinyanga (unreported). The 3rd respondent's counsel on the other hand argued that the appellant failed to prove his ownership over the suit land contrary to the principle that whoever alleges must prove as provided under section 110(1) Page 6 of 11 ’T J of the Evidence Act and the Martin Fredrick Rajab case (supra). The tribunal considered the appellant's evidence that he sold the suit land to 1st respondent in the presence of John Elieza Mbembati (DW2) and Mahamudi Abdul Tendega (DW3) the then street leader. The appellant's complaint that the tribunal held that the appellant failed to describe the suit land in his view, is misplaced as the failure to describe the suit land was not the sole reason for dismissing the appellant's application. He distinguished the John Lihava case (supra) cited by the appellant with the present case as in that case the appellant described the suit land both in his pleadings and evidence unlike in the present case. The 3rd respondent's advocate contended further that in reaching its judgment the tribunal considered several factors. One, the appellant failed to prove that he did not sell the dispute land to the 1st respondent. Two, the appellant's failure to cross examine material witnesses who witnessed the sale agreement between the appellant and 1st respondent which implied admission of the facts. He cited the case of Bomu Mohamedi v. Hamisi Amiri, Civil Appeal No. 99/2018, Court of Appeal - Tanga (unreported) to support his contention that failure to cross examine on a particular fact implies acceptance of that fact. Three, the appellant's IkA Page 7 of 11 departure from his pleadings on the value of the suit land. He cited the Makori Wassaga case (supra) and Agatha Mshote case (supra) to support his argument that parties are bound by their pleadings. Four, the appellant was involved during the initial stages of construction of the telecommunication tower, thus he was aware. In his view, the tribunal properly evaluated the evidence. The appellant's evidence was not sufficient enough as he failed to prove that the land in dispute is not the one that he sold to the 1st respondent. On the other hand the 1st respondent managed to prove that the land was sold to him by the appellant, this was corroborated by the evidence of DW2 and DW3 who witnessed the sale agreement. He submitted on the 1st ground that the appellant was not prejudiced by the non-reading of exhibits after admission. In his view, the documents were properly admitted in evidence as the appellant was given opportunity to challenge their admission. Therefore, the appellant understood the contents of the documents tendered. He distinguished the Bulungu Nzungu case (supra) cited by the appellant as the case was a criminal case which requires proof beyond reasonable doubt unlike the present case which is a civil one. He contended that the admission of documents before Page 8 of 11 the tribunal is governed by Regulation 10 of the Regulations which guides that for a document to be admitted, it should be served to the opposite party, which requirement was complied by the respondents. In disposing the appeal, I will deal with each ground chronologically. In the first ground, the appellant contends that there are irregularities in the tribunal records as the exhibits were not read out after admission. The record shows that all exhibits were not read after being admitted. Exhibit Pl which was tendered by the appellant is letters of administration which was not a disputed fact. Exhibit DI was an agreement which the appellant and the 1st respondent had entered into. This was also annexed to the appellant's application. Exhibits D3, D4 and D5 were annexed to the respondents' written statement of defence. Therefore, the appellant was aware of the contents in the said documents as parties in civil cases exchange pleadings unlike in criminal cases. The cited case of Bulungu Nzugu is distinguishable with the present case as in that case the trial started at the district court where there is no exchange of documents prior to the hearing, therefore, if an exhibit is not read in such trials, indeed, the opposite party would be prejudiced. Page 9 of 11 The 2nd ground centers on the tribunal's evaluation of evidence. The main dispute as hinted earlier is between the appellant and the 1st respondent. The appellant acknowledges that he had sold land to the 1st respondent and such evidence is supported by the agreement tendered in court. This evidence is also supported by DW2 and DW3 who witnessed the disposition. According to the appellant, the suit land is not the one he sold to the 1st respondent. This is a general statement. The appellant did not distinguish the area he sold to the 1st respondent from the rest of his land. In his evidence the 1st respondent said he used the area which he bought and the witnesses to the sale agreement supported him. On the balance of probabilities, I agree with the trial tribunal that the appellant failed to prove that the 1st respondent has used the land other than that which was sold to him. Therefore, the trial tribunal correctly held that the case was not proved. It rightly dismissed the application. Consequently, I find the appeal devoid of merits. I dismiss it with costs. I.C. MUGETA JUDGE 25/7/2023 Page 10 of 11 Court: Judgment delivered in chambers in the presence of the appellant in person, Omary Khatibu, advocate for the 1st respondent, Irene Y. Justo, advocate for the 3rd respondent and in absence of the 2nd respondent. Sgd. I.C. MUGETA JUDGE 25/7/2023 Page 11 of11