juma musa mtyanga vs arois abunuasi 2021 tzhclandd 133 30 april 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 88 OF 2020 (Arising from Judgm ent o f the Mkuranga District land and Housing Tribunal, Land Appeal Land A ppeal No.59 o f 2019, Before Hon. Mwakibuja (Chairman) JUMA MUSA MTYANGA.................................................................. APPELANT VERSUS AROIS ABUNUASI.................................................................... RESPONDENT JUDGMENT 04/03/2021 & 30/04/2021 I. MAIGE, 3 At the ward tribunal for Mkamba henceforward ("the trial tribunal")/ the appellant herein was the claimant in dispute on ownership of a 1 V2 acres farm located at Kibunguchama village within the District of Mkuranga "the suit property). The trial tribunal having heard the case and inspected the locus in quo, established as a fact that, the su it property with eleven cashew trees, three mangle trees and burial yards of the respondent's relatives belong to the appellant. It however directed that the burial yards be left as they were and the respondent be restrained from further burying thereon. On appeal to the District Land and Housing Tribunal for Mkuranga ("the first appellate tribunal"), the decision of the trial tribunal was reversed and the respondent herein declared the lawful owner of the suit property. This time around, it is the appellant who is displeased by the decision and henceforth the instant appeal. In here, the judgment and proceedings of the first appellate tribunal is faulted on the following grounds:- 1. That, the leaned Chairman erred in fact and in iaw by declaring the respondent is law ful owner o f the disputed land without considering that it was JOHN ABUNUAS (the bother o f the respondent) who appeared and prosecuted, testified before the tribunal without having power o f attorney from the said AROIS ABUNUAS o f doing so. 2. That, the learned chairman erred in fact and law in holding that the respondent is the law ful owner o f the disputed land without any tangible evidence tendered by the respondent In the conduct of the appeal, both parties appeared in persons and were not represented. With my direction, the appeal was argued by way of written submissions. I have taken time to carefully read the written submissions and examined the judgments and proceedings of both tribunals in line with the two grounds of appeal raised. 2 In relation to the first ground, the appellant informed the Court that while the judgment debtor at the trial tribunal was the respondent herein, the prosecution of the appeal at the first appellate tribunal was made by the respondent's young brother Mr. John Abunuas who is a stranger to the proceedings. He submitted therefore that, in the absence of a power of attorney, the said John could not have the necessary standing to prosecute the appeal on behalf of the respondent. On the same token, the appellant condemned the said John for prosecuting the instant appeal without possessing any power of attorney from the respondent. In the submissions in reply, it would appear to me, whether the prosecution of the appeal at the first appellate tribunal was made by the said John on behalf of the respondent herein is not in dispute. Similarly, so for the fact that this appeal is being defended by the same person on behalf of the respondent. The argument advanced by the said representative is that him being duly conversant with the facts of the case, is entitled to stand for his old brother the respondent. I will for obvious reason, determine this issue before I turn my mind on the second ground of appeal. I will start with whether the said John 3 Abunuas has a necessary standing to defend the instant appeal for and on behalf of the respondent. On this, the guiding provision is section 46 of the Land Disputes Courts Act, Cap. 2016, R.E., 2019 ("the LDCA") which provides as follows:- 46. In any proceedings in the High Court, parties m ay appear in person or by an advocate or other representatives in accordance with the C ivil Procedure Code The "other representatives in accordance with the Civil Procedure Code" envisaged in the respective provision in my view fall under the phrase "representative agent" under Order III rule 1 of the CPC. Who is a recognized agent is defined in sub rule 2 thereof in the following words:- 3. Recognized agents o f parties by whom such appearances, applications and acts may be made or done are- (a) persons holding powers o fattorney, authorizing them to make appearances or applications and do such acts on behalf o f such parties; (b) persons carrying on trade or business fo r and in the names o f parties not resident within the local lim its o f the jurisdiction o f the court within which lim its the appearance, application or act made or done, in m atters connected with such trade or business only, where no other agent is expressly authorized to make and to do such appearances, application and acts. There is no doubt in my mind that, the said John Abunuasi does not fall under any of the persons referred in the respective provision. In the circumstance therefore, the said John does not possess the authorization to defend the appeal for and on behalf of the respondent. Consequently, therefore, his written submissions in opposition to the appeal is hereby expunged from the record and I will henceforth determine the substance of the appeal ex parte. In the substance of the appeal, it was submitted that, since the respondents appeal at the first appellate tribunal was prosecuted by the said John, the young brother of the respondent, without there being a power of attorney, it was null and void. I was thus invited to nullify the judgment and proceedings of the first appellate tribunal on that account. I will, for the reasons I am going to assign gradually as I go along, not accept this submission. Unlike appearances in the High Court which is governed by the provision of section 46 of the LDCA read together with order III rule 1 and 2 of the CPC, appearances before the District Land and Housing Tribunals is governed by section 30 of the LDCA which provides as hereunder:- 30. Proceedings o f the D istrict Land and Housing Tribunal shall be held in public and a party to the proceedings may appear in person or by an advocate or any relative or any member o f the household or authorized officer o f a board corporate. 5 The above provision is, in my reading, clear and unambiguous. It does not need interpretation. A relative of a party to the proceedings can in accordance with the above provision, prosecute or defend a case for and on behalf of a party to the proceedings. The appellant admits in his submissions that, the said John Ibinuasi who prosecuted the appeal at the first appellate tribunal was a young brother of the respondent. As that is not enough, there is, on the record of the first appellate tribunal, a letter signed by the respondent and the said John signifying that the former had mandated the latter to prosecute the appeal on his behalf. The said letter is endorsed with the seal of the first appellate tribunal indicating that it was received on 16th March 2020. In my view therefore, the first ground of appeal is without merit. The said John Abunuas being irrefutably the young brother of the respondent and having been authorized in writing to represent the respondent in the appeal, was legally mandated so to do. I will now turn to the second ground. The complaint here is that, the first appellate tribunal wrongly declared the respondent the lawful owner of the suit property without there being any tangible evidence tendered by the respondent. In his submissions, the appellant contended that; there 6 being evidence of the sale of the su it property by the respondent to the appellant, it was wrong for the trial tribunal to declare the former the owner of the same. Since the title of the appellant on the su it property is traceable from the respondent by way of purchase, the issue which I have to consider is whether the appellant adduced sufficient evidence to establish that he purchased the suit property from the respondent. From his oral factual allegations and testimony at the trial tribunal, the appellant asserted to have purchased the su it property from the respondent, in 2001, at the purchase consideration of TZS 7,000/=. Further claimed was the fact that, the said purchase was witnessed by Omari Mwinyimkuu Mwago and Sharifa Suitani. Though no written sale agreement was produced into evidence, the factual proposition upon which the appellant case was based was such that, the sale agreement was reduced into writing and the said two persons signed as witnesses. In her testimony, Sharifa Suitan appears to admit that she was present when the alleged sale was being made. She does not however claim to have witnessed any execution of a sale agreement. On his part, Omari Mwinyimkuu Mwango testified as follows:- 7 "Iiikuwa mwaka 2001 nfflkuwa shambani kwangu nafima niliwaona Juma Mtyangu Shalifa Sultan walikuwa wanakagua mpaka. Walipotokea barabarani akatokea Juma mtyangu kuniita wakati m im i nipo na Shambani kwangu. Akanieleza m im i nampa pesa ndugu A roisi nanunua Shamba lake akaingia m fukoni akampa pesa sh. Elfu saba (7000) baada ya hapo kiia mtu akaondoka huku wakiagana tutakutana baada ya siku nyingine. Hapo ndipo mwisho wangu" The said witness was asked by one of the members of the trial tribunal if he signed into a sale agreement between the appellant and respondent as a witness and his response was as follows:- nhiyo siyo sainiyangu na hati h ii ndiyo kwanza ninaiona leo " In his opinion which was concurred by the two gentle assessors who sat with her, the trial chairperson having examined the evidence adduced, made the following observations which I fully subscribe to:- "The respondent is the one who filed the case the case in the tria l tribunal. One o f his witness denied to sign to sign in the sale agreem ent When he was asked for clarification by the members o f the tria l Tribunal he stated that his son signed on h is behalf while the respondent testified that his witness signed the sale agreement. Another witness o f the respondent testified to witness the paym ent o f purchase price Tshs. 7,000/= after paym ent nothing else took place. So the claim o f the respondent that sale agreement was recorded in writing and signed by his two witnesses is not true. Those who mentioned, to sign denied. Therefore, the tria l Tribunal fa ils to evaluate properly the evidence from both sides" 8 Just as it is for the first appellate tribunal, it is my opinion that, the evidence adduced by the appellant at the trial tribunal was so weak and improbable that, it could not suffice to prove, on the balance of probability that, the respondent sold the suit property to the appellant as alleged or at all. The second ground of appeal therefore is without merit. In the final result and for the foregoing reasons therefore, the appeal is without merit and it is accordingly dismissed with costs. I allow the appeal with costs. JUDGE 30th April, 2021 Ruling delivered this 30th day of April 2021 in the presence of the appellant in person and in the absence of the respondent. I. Maige JUDGE 30th April, 2021