juma said chande vs morogoro municipal council two others 2022 tzhc 14389 9 september 2022

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MOROGORO DISTRICT REGISTRY) AT MOROGORO LAND APPEAL NO.40 OF 2022 (Originating from Land Case No.119 of2010, the District Land and Housing Tribunai forMorogoro) JUMA SAIDI CHANDE (administrator of SAIDI SULEIMAN CHANDE-deceased) APPELLANT VERSUS MOROGORO MUNICIPAL COUNCIL RESPONDENT ZEBRA HOTEL LTD 2'^'' RESPONDENT ERNEST MLINGI 3"^^ RESPONDENT JUDGEMENT Hearing date on: 24/08/2022 Judgment date on: 09/09/2022 NGWEMBE,J. This judgment Is born out of appellant preferred by Juma SaidI Chande, an administrator of the estate of the late Said! Suleiman Chande filed In this court. The appellant after being dissatisfied with the judgement and decree of Morogoro District Land and Housing Tribunal in Land Application No. 119 of 2010, preferred this appeal. The prayers of the appellant before the District Land and Housing Tribunal was for reliefs that he be declared the rightful owner, nullification of the sale agreement between the 2""^ and 3^*^ respondent, and damages for Page 1 of 13 demolition of a house registered as MS/B/140 and kiosks built at Msamvu 'B' Morogoro Urban, in a none surveyed plot of land. Unfortunately, the applicant Said Suleiman Chande died in the midst of prosecuting his case. In turn the appellant herein, was appointed an administer of the estate of the deceased, (his father). He took over the suit in court and proceeded with it before the Land tribunal. However, at the end of trial, the tribunal dismissed the application with costs for failure to establish the case to the required evidential standard. Aggrieved by that judgment and decree, presented this appeal armed with 9 grounds. However, on the hearing date, he argued only four grounds, which are summary hereunder: - 1) That the trial chairman changed the issues in his judgment intending for undue favour to the respondent; 2) The tribunal failed to acknowledge and consider the appellants presence in the disputed land since 1986; 3) The chairman erred in determining the dispute over a surveyed land without joining the Attorney General and Land commissioner; and 4) That the tribunal chairman erred in deciding the dispute without receiving evidence from the Land Commissioner. On the hearing of this appeal, the appellant appeared in person while the first respondent was represented by Mr. Ndalahwa, learned Senior State Attorney and the Second respondent was absent throughout and the third respondent was represented by Mr. Benjamin Jonas, learned advocate. Page 2 of 13 In his brief submission, the appellant commenced with the first ground. That issues for determination were agreed during trial, but the chairman changed them in his decision, thus, occasioned miscarriage of justice. On the second ground, he argued that the appellant was occupying the suit land even when the first respondent purported to offer It to the second respondent. Therefore, he occupied and used the suit land prior to the respondents. Arguing on the third ground, he contended that, the disputed land had certificate of title, thus the tribunal erred to determine the matter without joining the Commissioner for Land. Also touched on the value of the suit land that was beyond three hundred million shillings. The appellant added that there was an unchallenged decision which ruled the same plot to belong to the appellant. Rested by a prayer that those grounds be considered and this court may allow the appeal. In turn the learned senior State Attorney Xlveria Ndalahwa for the first respondent, replied that, the appeal had no reliefs, the arguments that the chairman changed the issues is not clear as are not well stated. Addressing on the question of non-joinder of the Commissioner for Lands and Attorney General, he responded that the Attorney General was not a party to the whole proceedings contravened The Government Proceedings Act, Cap 5 RE 2019. Added that section 7 of the Government Proceedings, thus Act was faulted. Therefore, the whole proceedings of the trial tribunal are nullity. Advocate Benjamin Jonas, joined hands with the learned senior State Attorney on the appellant's failure to pray for reliefs and that there were no changes of issues. Proceeded to argue on non-joinder of the Page 3 of 13 Attorney General by referring this court to section 22 of The Government Proceedings Act. Justified by arguing that the case was instituted before the tribunal in year 2010 prior to the amendments of section 7 of the Act. Regarding the value of the land, Mr. Benjamin observed that It was the appellant himself who disclosed the value as shillings 40,000,000/= at the tribunal. He gave the background of the dispute and concluded that the appeal has no merit. Rested with a prayer that, the appeal be dismissed with costs. The appellant in rejoinder, just insisted that the value of the land was even more than a billion shillings since the suit land had a house. In determining this appeal, I will first deal with ground 3, which connote a question of jurisdiction, then ground 4. Ground one which raises the issue of procedural propriety will follow, the second ground will be treated as the last. The priority of ground 3 is attached to the importance of determining jurisdiction of the tribunal before any other ground. Considering the value of the land in dispute, the complaint deserves no further consideration. It was the appellant himself who stated the value of the land to be Shillings 40,000,000/= at page 2, paragraph 4 of the plaint. Justice will not let him be heard against this. Always, parties are bound by their own pleadings, therefore, the appellant pleaded the value of the suit land was TZS. 40 million shillings only. Thus, bound to what he pleaded. To change the value after pleadings, ought to amend his pleadings, otherwise, he is estopped to plead another value on appeal. This ground lacks merits. -r Determining the third ground, I think it Is simple because it is purely based on applicable laws. As of now, no suit against the Page 4 of 13 government or its department and institutions may be properly instituted In any competent court of law without joining the Attorney General. Also such suit cannot be instituted in any court except in the High Court of Tanzania. Sections 6, 6A and 7 of the Government Proceedings Act speaks louder and are self-explanatory. Even the trial tribunal would have no jurisdiction to entertain the matter, as the first respondent is a government entity. On the other hand, I subscribe to the arguments of learned advocate Benjamin Jonas, on applicability of the amendments. Keeping in mind that the case appealed against was instituted in year 2010, while the amendment was made in year 2019. An immediate question is whether those amendments are applicable in this appeal? Perusing inquisitively on the Act, obvious the amendments are not applicable to the existing suit prior to the amendments. Notwithstanding the amendments in the Government proceedings Act, yet the requirement of suiting the Government institutions or joining it to the suit, existed since the enactment of the Act to date. In respect to this appeal, the appellant was the one who instituted an action against the respondents before the District Land and Housing Tribunal. Thus, knew who should be sued and who should not be sued. In other words, the plaintiff/applicant is at liberty to lodge any claim against whoever so long he has a valid claim against him. Therefore, the plaintiff/applicant should not be heard complaining on appeal that certain defendant/respondent was not joined in a suit or application. In respect to this appeal, the appellant cannot blame the tribunal for non-joinder of the Attorney General, while he was the one to join either the Attorney General or the Commissioner for Lands or Registrar of titles. Above ail, knowing that the Land Commissioner was material Page 5 of 13 witness on his side, he had the duty to present him during trial. Moreover, the Land Officers working under Morogoro Municipal Council, are doing so on behalf of the Commissioner for Lands. Had the appellant considered all the above, he would not have persisted to these grounds of appeal. In any event, grounds 3 and 4 lacks merits. In determining ground one, this court reviewed the proceedings as well as the judgment of the trial tribunal, with a view to underscore whether there was improper change of drawn issues as contended by the appellant. From the outset, the trial court/tribunal has powers to amend issues for the purpose of determining the dispute more effectively. Order XIV Rule 5 (1)(2) of the Civil Procedure Code Cap 33 RE 2019 is quoted: - Order XIV, Rule 5 (1) "The court may at any time before passing a decree amend the issues or frame additionai issues on such terms as it thinks fit; and ai! such amendments or additionai issues as may be necessary for determining the matters in controversy between the parties shaii be so made or framed. (2) The court may aiso, at any time before passing a decree, strike out any issue that appear to it to be wrongiy framed or introduced'' Therefore, applying those statutory rules, the trial court or tribunal has mandate to amend or delete issues which do not go to the root of the subject matter. Notwithstanding the above legal position, yet I am alive to the requirement of availing parties with a chance to address the court where the issue is amended or a new issue is drawn suo motu. This position was elaborated in the case of People's Bank of Zanzibar Page 6 of 13 Vs. Suleman Haji Suleman [2000] T,L.R. 347, bears a perfect overview of the right to be heard when issues are amended. Otherwise, the law Is clear, where the issues are amended, the court may proceed to pass judgment or reopen the case and let the parties address it on the new issue or amended issue. It will usually depend on the nature of the case. Among the determinants to consider are; one substance of the pleadings, two nature of the contention between the parties and three, evidence adduced before the trial court. Those three tests constitute valid premises in legal reasoning because where the fact was pleaded by one party and denied by the other, that fact is already an issue even when not expressly raised in proceeding. That is the essence of Order XIV rule 1 (3) of CPC. It follows therefore that, where a fact is pleaded and contented between the parties, evidence adduced by each party on that contention, the court will be entitled in law to decide on that issue, even if, it was not drawn in the beginning. This position was pronounced more clearly in the case of Norman Vs. Overseas Motor Transport [1959] lEA 131, the court prudently observed as follows: - "If, though no issue is framed on the fact, the parties adduce evidence on the fact and discuss it before the court, and the court decides the point, as if there was an issue framed on it, the decision wiii not be set aside on appeai on the ground merely that no issue was framed... Nevertheless, the failure to frame the issues is an irregularity and the question is whether, notwithstanding the failure to frame the issues, the parties at the trial knew what the real question between them was, that the evidence on the question had been taken and the court duly considered it." Page 7 of 13 In the same vein the Court in the case of Barclays Bank Tanzania Limited Vs. Sharaf Shipping Agency (T) Ltd & Others (Consolidated Civil Appeals 117 of 2019), where the trial court amended the issue in composing judgment, the Court of Appeal of Tanzania was persuaded by Norman's holding and proceeded to apply the tests as follows: - "We think, two questions shouid be addressed in resoiving the contention. First, whether, in the nature ofthe amendment of the first issue, it was necessary for the appeiiants to be afforded a right to be heard. Two, whether, in view of pleadings, the triai court correctly and properly framed the issues. The jurisprudence above, is what this court applies to the case at hand. I read from the tribunal's proceeding of 12/06/2018, three issues were drawn: - 1) Whether the respondents have trespassed to the land owned by the applicant. 2) Whether the applicant has suffered any damage by any act ofthe respondents 3) To what reliefs parties are entitled. After having heard the testimonies of all witnesses, the trial chairperson in his judgment amended the issues by striking out the second issue and rephrasing the first issue to read whether the applicant was the rightful owner ofthe disputed land. He disclosed the reasons for that changes as to have valid issues reflecting the applicant's claim and reliefs for resolving the dispute properly. The above has been collected Page 8 of 13 from the tribunal's judgment at page 3, which in Kiswahill language is written: - "Baada ya kupit'a hati za madai na utetezl pamoja na ushahidi uliotolewa, nimeona kuna haja ya kuondoa swali la piii, na kufanya marekebisho ya swaii fa kwanza. Marekebisho katika maswaii hayo ni kwa iengo fa kuwa na maswaii yanayo akisi madai na nafuu aiizoomba mwombaji, Hi kupata majibu sahihi ya utatuzi wa mgogoro huu. Maswaii baada ya marekebisho ni kama yanavyoonekana hapa chini; 1. Je mwombaji ni mmiiiki haiaii wa ardhi bishaniwa? 2. Ni nafuu zipi wadaawa wanastahiii?'' In the language of this court, what the tribunal did as above was to amend the issues to be; First - Whether the applicant was the rightful owner ofthe disputed iand and Second - Reliefs parties are entitled to. The Immediate question is whether miscarriage of justice occasioned to the parties due to the amendments of those issues? To answer this question, I have considered the centre of the dispute among the disputants all along is ownership of the suit land. The Amended application, at page 2, para 6 (a)(i) on cause of action claimed: - "That the applicant has aii along been the owner of the said iand having owned it customarily and that his house No. MS/B/140 was erected thereat' Subsequent subparagraphs proceeded to claim that the second and third respondents trespassed over the land and demolished the premises erected therein. The respondents in substance denied ai! what the appellant averred. The third respondent for instance, at page 2 paragraph 5 of his Written Statement of Defence, defended: - Page 9 of 13 "The third respondent... state further that the applicant herein had not at any time or at aii owned the property being owned by the third respondent in Morogoro. Further more to that, the applicant had notat any dme constructed any house therein In their evidence, parties sought to establish ownership. This court is confident that the issues drawn prior were improper as claims on trespass and demolition would not be determined without determining ownership of that suit land. Tlierefore, the trial Chairperson was justified in amending those two issues. Considering the circumstance of the claim itself, there was no need to invite parties to address on an issue which the evidence adduced therein covered everything. In conclusion, I find no miscarriage of justice was occasioned, thus this ground lacks merits. In the second ground, the appellant complained that, Said Suleiman Chande was in occupation of the land since 1986, the tribunal should have considered that fact in its judgment. Claimed that the late Said Suleiman Chande owned the disputed land since 1960. On 1970 erected a house and in 2010 some huts for kiosks. When in progress the first respondent demolished the premises claiming the land belonged to the second respondent. He added Zebra Hotel was not the owner, but was a neighbour. In cross examination, he admitted to have seen the buildings of Zebra Hotel in the disputed land since 1970. Shamiry Omary (AW2) stated that, the first respondents officers demolished the premises in the disputed land. But AWl's evidence contradicted AW2's on specification of the land and whether it was surveyed. The appellant stated that, it was not surveyed, while AW2 said it was surveyed and had beacons. Page 10 of 13 The third respondent (RWl) testified that the disputed land comprises Plot No. 139 and 140 Block 'B' Msamvu, owned by Zebra Hotel by a Certificate of title issued in year 1986. In 2010 he purchased the land without Improvement. He tendered a copy of certificate of Title No. 31448 as exhibit D-1. This was supported by RW2 Herman Paul (Land Officer), that the first owner was Zebra Hotel Ltd since in year 1986 by Letter of Offer and latter for a certificate exhibit Dl, which he identified. In year 2010 the ownership changed to the third respondent. It is a settled law, that in civil cases, the claimant must establish the claim on balance of probability. The court must be satisfied that the facts constituting a claim truly exist. This is what is the essence of sections 3 (2)(b), 110, 111 and 112 of the Evidence Act, Cap 6 R.E 2019. These sections import burden of proof to the claimant and the standard of proof is on balance of probabilities. More relevant in this point is section 112 as quoted hereunder: - Section 112 ''the burden of proof as to any particular fact lies on that person who wishes the court to beiieve in its existence, uniess it is provided by iaw that the proof of that fact shali He on any other person." In this appeal, the appellant was duty bound to prove that the land in dispute was legally owned by the late Said Suleiman Chande and that the respondents trespassed therein without any colour of right. To the contrary, the appellant did not give any strong evidence. His testimony in both, examination in chief and cross examination was vague and uncertain, also contradicted the evidences of AW2 on whether the land was surveyed or otherwise. Page 11 of 13 In a good number of decisions of this court, has observed that disputes are decided on the available evidences, applicable lav^s and the prevailing circumstances. To add, when disputes occur, parties must take litigation as a serious business. The powers of the courts to resolve disputes depend much on their exposition of the true facts as against cooked stories. Though the appellant's testimonies suggested that his late father once occupied part of the land in dispute, and that he was given building permit by the first respondent, but he failed to establish the legal right over the disputed land. Claims on existence of another decision in his favour are weak, as he did not cite any case in his submission. I take judicial notice of Application No. 119 of 2010^ Said Suieman Chande Vs. Mr. Sabuni, Morogoro Municipal Council and Zebra Hotel Ltd, which was decided in the appellants favour. However, apart from the registration error, the said case had different parties and it was later overturned In Objection Proceeding instituted by Mr. Ernest Mlingl. The evidence adduced before the tribunal had significant weakness while the adverse parties was stronger and it could not be possible for the tribunal to rule in favour of the appellant. The claim that the appellant's father had occupied the land in dispute since 1986 had no strength, lacking clear proof against the respondents who had more tangible evidence, that the land was allocated to the third respondent. The tribunal was correct to have dismissed the appellant's case. Having reasoned as above, I proceed to dismiss the appeal as well for lack of merits. Since the appellant prosecuted the case as an administrator, it is prudent for each party to bear his own costs. Order Accordingly. Page 12 of 13 Dated at Morogoro this^^M^^^September, 2022. P. J. NGWEMBE JUDGE 09/09/2022 Court: Jud^enfdenvered at Morogoro in Chambers on this 09*^ day of September, 2022, Before Hon. S. J. Kainda, OR in the presence of the Appellant and in the presence of Mr. Hemedi Mkomwa for Respondent and Absence of 2"^ & 3^^ Respondents. I Certify that this is a true and correct SGD. HON. S.J. KAINDA copy of original DEPUTY REGISTRAR Deputy Registrar 09/09/2022 Date Morogoro Page 13 of 13