LAND APPEAL 142

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 142 OF 2023 (Originating from Application No. 175/2019, Temeke District Land and Housing Tribunal) JUMA SADALA HULWE (Administrator of the Estate of the Late Modesta Kimwaga Hulwa).... APPELLANT VERSUS KASSIM BAKARI MATEMBO .1ST respondent AYOUB JINYEVU _2ND respondent MASOUD ABDURAHMAN 3*^° RESPONDENT JUDGMENT 15/05/2024 to 20/06/2024 E.B, LUVANDA, J The Appellant named above is aggrieved by the decision of the Tribunal dismissing a suit by the Appellant who claimed ownership of the land at Vijibweni Kigamboni Municipality. In the petition of appeal, the Appellant grounded that: One, the Honorable Chairman erred in law In contradicting the provision of rule 20(l)(a), (b), (c ), and (d) of the land Disputes Courts (The District Land and Housing Tribunal) Regulations (sic, GN 173 of 2003) and Order XX rule 4 of the Civil Procedure Code, Cap 33 R.E. 2019; Two, the Honorable Chairman erred in law and fact In 1 his failure to analyze evidence adduced before him which resulted to make a wrong decision and conclusion. Mr. Joseph Joseph Salira learned Counsel for the Appellant submitted that the Trial Chairman contravened the provision of rule 20(l)(a), (b), (c ), and (d) GN 173 of 2003 (supra) and Order XX rule 4 Cap 33 (supra), which provides for the contents of the judgment. He cited the case of Victor Raphael Luvena vs Magreth Ephrahim Kahwa and Others, Civil Appeal No. 25A of 2021 CAT. He submitted that the entire judgment of the trial Tribunal had no points for determination, findings on issues. He submitted that the large part of the impugned judgment contains the facts of the case and narrates what has been occurred during the trial. He submitted that the judgment lacks issues for determination, argued it is crucial aspect in composing judgment, citing Barclays Bank Tanzania Limited vs Sharaf Shipping Agency (T) Limited, Civil Appeal No. 117/16 of 2018, CAT; Sheikh Ahmed Said vs The Registered Trustees of Manyema Masjid [2005] TLR page 61 and 67. He submitted that the Tribunal judgment had no framed issues for determination to resolve the dispute, arguing it left so many issues unresolved. Ground number two, the learned Counsel submitted that the Tribunal did not analyze the evidence adduced before it, citing the testimony of Aidan Harmony former Chairman of Vijibweni Valuation Committee who asserted that during the process of identification and valuation of plots and settlement at KIgambonI in 2009, the suit premises was registered the name of Sadala Selemani Hulwe administrator of the estate of Modesta Kiwanga, as per exhibit P3; Thabit Kombo the erstwhile co-staff member of Modesta Kiwanga at TANESCO, asserted that Modesta Kiwanga purchased the suit land from Mohamed Juma Mahenge in 1997. In reply, Mr. Chali Juma learned Counsel for Respondents, consolidate the two grounds of appeal he submitted that nowhere in the judgment in question bears illegality as the same contains the right of the parties as well as all stated therein reflects in the proceedings, argued it is improper to say that the honourable chairman contravened ruie 20(1) of GN No. 173 of 2003 as well as Order XX rule 4 Cap 33 (supra). He submitted that the delivered judgment contains the right of the parties therein and the judgment itself reflects on what the witnesses adduced at the hearing. He submitted that the allegations that, the trial Chairman has failed to evaluate the issues as well as evidence does not hold any water, for explanation that the evidence was well evaluated and the Hon. Chairman took consideration from what the parties stated in their testimony. He insisted that the delivered judgment is clear as the same bears the rights of the parties therein. 3 On rejoinder, the learned Counsel for the Appellant submitted that failure to ■ compose the judgment in accordance with the mandatory provisions of the laws, the rights of the parties never be observed. For ground number two, the learned Counsel submitted that it is the duty of the trial court and first appellate court to evaluate and analyze evidence adduced before it (sic, before the trial Tribunal), citing Begaya Paulo vs R, Criminal Appeal No. 98 of 2020 HC at Bukoka. He invited this Court as the first appellate court to take the duty to re-evaluate the evidence and come up with conclusion that the Appellant case was proved. I entirely agree that the learned Chairman absconded its duty to evaluate and analyze evidence adduced by the parties before it. However, I incline to the invitation by the learned Counsel for Appellant and take that charge of evaluating the evidence at this stage as this being the first appellate court, see Begaya Paulo (supra). According to the evidence tendered by Juma Sadala Hulwa (PWl) who is the administrator of the estate of the late Modesta Kimwaga Hulwe, the deceased purchased the suit land on 4/04/1997 from Mohamed Juma Mahenge for a consideration of Tsh 130,000/=. This testimony was supported by Thabiti Kombo (PW4), who asserted that the late Modesta Kimwaga Hulwe purchased the suit land in 1997 along other four colleague (office mate), PW4 inclusive. where the late Modesta Kimwaga Hulwe developed by constructing a house while PW4 disposed his plot in 2010. PWl also tendered Form No. 64 for valuation for purpose of compensation subject for acquisition of land from Temeke Municipal along other documents dated 26/09/2009 (exhibit P3 collectively) bearing the name of Sadala Seleman Hulwe who by then was an administrator of the estate of the late Modesta Kimwaga Hulwe, as per exhibit PI. Meaning that up to 26/09/2009 the suit farm was still in actual ownership of the late Modesta Kimwaga Hulwe. On the other hand, the title of Kassim Bakari Matembo (First Respondent) depict is derived from the sale agreement dated 22/05/2015 (exhibit Dl) alleged purchased from Mbwana Njama Omari (was not impleaded herein, alleged deceased). The purported Mbwana Njama was alleged to had purchased the suit land from Modesta Kimwaga the way back on 3/11/1999 as per a sale agreement exhibit D2. When DW2 was cross examined by Mr. Gasper learned Counsel for Applicant at the trial Tribunal, DW2 conceded that signatures of Modesta does not resemble in the two sales agreement. It is to be noted that the signature of Modest Kimwaga Hulwe appearing in a sale agreement dated 4/04/1997 exhibit P4, resemble her signature reflected in her records of employment at TANESCO that is application for local leave dated 16/06/1997 exhibit P5. But the signatures in exhibit P4 and P5 differs materially with the signature of the vendor in exhibit D2 purported to have been signed by the late Modesta Kimwaga Hulwe. In exhibit D2, a signature of the purchaser, vendor and witness number three, a close look on formation of a ietter'm' and y depict simiiar features of shape formation. Witnesses in a sale agreement dated 3/11/1999 exhibit D2 and saie agreement dated 22/05/2015 exhibit Dl, are the same: Masudi Abdurahamani, Hamadi Hamis and Mwanamvua Njama. In exhibit P4 depict the iate Modest Kimwaga Huiwe purchased for a consideration of Tsh 13,000 oniy, it was on 4/04/1997. However, exhibit D2 suggest the late Modesta Kimwaga Huiwe disposed the suit farm just after two years and seven months the same suit land was able to fetch a handsome pay of 1,800,000, being thirteen times of the purchase price obtained in 1997. But when the same suit farm was disposed on 22/05/2015 being almost after expiry of sixteen years counting from 1999, it was soid at 7,000,000 being an increase of oniy three times of the purchase price. This suggest something fishy on the aileged transactions. Now if at aii the said Masoud Abdaihaman and Hamad Hamis witnessed when the iate Modesta Kimwaga Huiwe disposed the suit farm in 1999, one couid ask as to why they awaited tiil on 19/06/2018 to demolish the structure buiit by the deceased on the suit farm. ‘ The Third Respondent who testified as DW3 at the triai, who vowed to have witnesses both sales to wit in 1999 exhibit D2 and 2015 exhibit Dl, but in his written statement of defence, a fact that he witnessed sale in exhibit D1 is missing. In the written statement of defence by the First, Second and Third Respondent, pleaded that Mbwana Njama Omari is a deceased, but was not elaborate as to when and where he passed away. Presumably this was done to conceal the truth and to avoid an obligation of accounting as to where and why he remained quiet for so long from 1999 to 2015. Having adumbrated as above, I rule that the evidence of the Appellant was not only heavier in comparison to that of the Respondents, but was more credible and cogent. The evidence and documentations tendered by the Respondents are marred with contradictions, with elements of fraud or untruthiness, lacking authenticity, signatures are doubtful, the purported purchaser from Modesta Kimwaga Hulwe and vendor to the First Respondent (that is Mbwana Njama Omari) was concealed, neither his administrator, executor, sibling, relative, neighbour, friend appeared to explain over his title purported acquired from the late Modesta Kimwaga Hulwe or confirm a fact that is dead. In that regard, I differ with the findings and verdict of the Tribunal, and set it aside. I rule that the suit land is part of the estate of the late Modesta Kimwaga Hulwe. Regarding the first ground of appeal. Arguably the impugned judgment is undoubtedly too brief. However, it contain summary of facts along evidence adduced by parties, it depict how each party claimed to have acquired land, it contain opinion of assessor vis-a-vis findings of the learned Chairman, reasons for the decision and verdict are vividly reflected. To my view as much the substantive issue as to whether the suit land belongs to the late Modesta Kimwaga Hulwe, was determined with reasons for it. Substantially the judgment was in compliance with the requirement. Above all, it is in the rule that the judgment by the Tribunal should be short and precise. Rule 20(1) of The Land Disputes (The District Land and Housing Tribunal) Regulation GN 174 of 2003, provide. 'The judgment of the Tribunal shall always be short, written In simple language and shall consist of: (a) a brief statement of facts; (b) findings on the Issue; (c) a decision; and (d) reasons for the decision' Therefore, to my view the impugned judgment did not offend any ruie as far as judgment of the Tribunal are concerned. Therefore, ground number one is without substance. Having nodded in agreement with the ground number two above, I find the appeai meritorious. The judgment of the Tribunai is quashed and its award set aside. The suit iand is adjudged to be part of the estate of the late Modesta Kimwaga Hulwe. The appeal j However, the Respondents are spared to foot costs. E.B. .UVANDA JUDGE 20/D6/2024 Judgment deiivered in the presen of Mr. Jacob Katundu Mwambasi holding brief for Mr. Joseph Joseph Salira Teamed Counsel for the Appellant and in the absence of the First, Second and Third Respondent. 9