JUDGMENT OF KAPITAO MGALA VS AMOS MISTA final

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA LAND APPEAL NO. 20596 OF 2024 CASE REFERENCE NO. 202408221000020596 (Originating in Application No. 166 of 2020 in the District Land and Housing Tribunal for Mbeya at Mbeya) KAPITAO MGALA ..................................................................... APPELLANT VERSUS AMOSI MISTA (MSIMAMIZI WA MIRATHI YA MAREHEMU MISTA MYOMBE) .............................................. RESPONDENT JUDGMENT 15th October & 4th December 2024 NONGWA, J. In the District Land and Housing Tribunal for Mbeya at Mbeya (the DLHT), Amos Mista in the capacity as administrator of estates of the late Mista Myombe sued the respondent for recovery of 24 acres of land located at Iwowo Village within the district of Mbeya. It was alleged that the suit land belonged to Mista Myombe before his demise. He prayed the suit land be declared the property of the deceased and the respondent to give vacant possession. The respondent through his written statement of defence disputed the claim. He alleged that he owns less than four acres after being given to him by Mista Myombe in 1979 and has used the same since 1969. 1 In the course, Amos Mista executed power of attorney in favour of Daud Mwangwale to represent him in prosecuting and giving evidence in Application No. 166 of 2020 and any other matter incidental thereto. Some dispute arose concerning power of attorney, it reached this court via Land Revision No. 6 of 2022 in which the court stated power of attorney was legally executed and the said Daud Mwangwale was competent to represent the applicant. The matter was ordered to proceed in the tribunal. During trial the respondent summoned three witness Daud Mwangwale (PW1), Erica Mista (PW2) and Rahel Mista Mwanchese while the respondent testified as DW1 and called Isambi Mgalla (DW2) and Philipo Kapitao (DW3). The appellant also produced one documentary exhibit, makabidhiano ya mashamba na miti (exhibit D1). Upon full trial, the tribunal found that there was no dispute that the land originally belonged to Mista Myombe. Further that the appellant’s claim that was given by Mista Myombe was not evidenced by deed of gift as required by the law. The decision was thus in favour of the respondent. The decision aggrieved the appellant who filed memorandum of appeal on five grounds one; that the Honourable Chairman erred in both law and facts for basing his judgment on a personal opinion, 2 extraneous matters not supported by any apparent evidence on record; two, that the Honourable Chairman erred in both law and facts for failure to properly analyzing contradictory evidence for the Respondents regarding to the size of the disputed land and allocation, this led to an unfair and injustice decision; three, that the Honourable Chairman erred in both law and facts for failure to abide to the principle of visiting the locus in quo, without assigning reason while there were dispute regarding the size of land trespassed according to Respondent and that of the appellant; four, that the Honourable Chairman erred in both law and facts when he gave the Judgment in fever of the Respondent without considering the principle of the Adverse Possession of the disputed land by the Appellant for more than 30 years until the dispute occur; and five, the trial tribunal erred in both law and facts failure to comply with high court order which ordered trial de-novo and the matter to proceed with different chairman and set off assessors whereby chairman proceeded with one assessors only without assign reasons why the other assessor was missing. When the appeal came for hearing, the appellant was represented by Mr. William Mashoke, learned advocate whereas the respondent appeared through the donee of power of attorney David Mwangale. It was agreed that disposal of appeal be by filing written submission. The court also ordered parties to submit on whether it was proper for the 3 donee of Power of Attorney to sue in the name of the doner of power of Attorney. In his submission in chief, Mr. Mashoke started with the issue of power of attorney executed by the respondent in favour of Daud Mwangwale. He submitted that there was no proof that Amos Mista was sick and it was not substantiated with medical report. He contended, the said power of attorney was not tendered in evidence. He fortified the argument with the case of Christina Alphonce Tomas vs Saamoja Masingija, Civil Application No. 1 of 2014 [2016] TZCA 289 (22 April 2016; TanzLII) in which the court stated grant of adjournment of case must be supported by medical proof which are genuine. Further argument was that power of attorney was general and had lasted for three years without proof that the respondent was still sick. On this he cited the case of Hashim Hassan Mussa vs Dr. Crispin Semakula and Another, Misc. Commercial Application No. 40 of 2021 [2021] TZHCComD 3342 (14 September 2021: TanzLII). He stated, power of attorney to Daud Rauden Mwangwale was specific and could not apply to any proceedings. He said Daud Rauben Mwangwale had no locus to proceed with the appeal on behalf of the respondent. Submitting in the first ground, Mr. Mashoke stated that the appellant testified that was given the land in 1969 and built a house. 4 Further that he never said was given the land vide deed of gift and in 1979 was only given trees. He added, the appellant is using only three acres and the rest he returned to Rashid who is using to date. In ground two, it was submitted that boundaries of the suit land as pleaded in the application differs with evidence, he referred to page 21 of proceedings. Further that the size of the land was different from that pleaded and found in evidence. He referred at page 18 were PW1 said it was 18 acres, page 27 PW2 said 45 acres and 34 PW3 said 24 acres. He contended parties are bound by their pleadings, as evidence in record differed with pleadings the respondent failed to prove his case. He cited the case of Salim Said Mtomekela vs Mohamed Abdallah Mohamed, Civil Appeal No. 149 of 2019 [2023] TZCA 15 (15 February 2023; TanzLII). Ground three and four were argued conjointly to the effect that evidence of the respondent was contradictory in term of neighbouring and size. According to Mr. Mashoke the size of the disputed land was not known and could be cured by visiting locus in quo which was not done. The court was referred to the case of Avit Thadeus Massawe vs Isdory Assega, Civil Appeal No. 6 of 2017 [2018] TZCA 357 (14 December 2018; TanzLII) on circumstances under which locus in quo 5 can be conducted. He submitted the appellant has used the land for more than 50 years. In ground five counsel submitted that hearing started with two assessors as reflected at page 23 of the proceeding but without disclosing reason continued with one assessor only. From the above submission, Mr. Mashoke prayed the appeal to be allowed with costs. Responding on issue of power of attorney, the respondent submitted that the issue has already been finally determined in Land Revision No. 6 of 2021 in which the donee was allowed to prosecute the case. He contended that once a court has rendered verdict on a certain matter it cannot re-open it regardless of party’s thought on that decision. In essence, it was submitted that this court was functus officio on the matter. In the first ground it was submitted the appellant and witnesses he called DW2 and DW3 failed to prove that was given the suit land inter vivo by the late Mista Myombe. The respondent contended that he managed to prove his case through evidence of PW2 and PW3 who testified the land was left in care of Ntotoshe Kaptula. He cited the case of Hemedi Said vs Mohamed Mbilu [1984] TLR 113 in that his evidence was heavier than the appellant and the case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha, Civil Appeal No. 6 45 of 2017 [2019] TZCA 453 (11 December 2019; TanzLII) that he proved the case to standard required. The respondent went on to submit that exhibit D1 was not deed of gift by referring to Mick Woodley, Osborn’s Concise – Law dictionary and the case of Hamis Sultan Mwinyigoha vs Zainabu Sultan Mwinyigoha, Civil Appeal No. 447 of 2020 [2024] TZCA 150 (29 February 2024; TanzLII) in which elements of deed of gift is explained. He argued mentioned persons in exhibit D1 had duty of supervision and did not transfer ownership. Replying to ground three on contradiction of evidence, the respondent submitted that there was no any contradiction on size of the land, the mentioned 24 acres is just an estimation which cannot be said it contradict with evidence of PW2 who said 45 acres. Further that boundary mentioned in application tallied with evidence adduced. On visit of locus quo, the respondent stated as seen at page 52 it was the appellant who through his advocate objected it to be done. He wondered how the appellant raised this complaint. He added locus in quo was not important as there was no dispute on location of the land and its boundaries. It was further argued that the appellant was the invitee in the suit land and cannot plea long use to exclude the true owner. Further that 7 adverse possession did not arise in this case. He supported the argument by citing the case of Magoiga Nyankorongo Mriri vs Chacha Mroso Saire, Civil Appeal No. 464 of 2020 [2022] TZCA 343 (14 June 2022; TanzLII) Lastly it was submitted that hearing of the case started with two assessors as required by section 23(1)(2) of the Land Disputes Courts Act and continued with one assessor as seen at page 29 to 53 to the completion which is permitted by section 23(3) of the LDCA. The respondent was of the view that nothing wrong was committed by the tribunal leading to miscarriage of justice. From the above he prayed the appeal be dismissed with costs and the appellant be condemned to pay general damage of 300,000/ for frustration, mentally disorder and wastage of time to the respondent. During re-joinder the appellant maintained that power of attorney was not tendered in evidence and the court could not act on words of mouth only. On other grounds Mr. Mashoke submitted that the respondent failed to prove his case due to contradictory evidence. Having considered the record of appeal and rival submissions, the issues for my determination are; one, whether visit of locus in quo was necessary (ground 3); two, whether the tribunal complied with trial de novo order and continued with one assessor (ground 5); and three, 8 whether the appellant proved his case to the standard required (grounds 1, 2 and 4). Before dealing with the above issue let me address the point of power of attorney which was raised by the court. Submission by Mr. Mashoke is that power of attorney was not introduced in evidence and the reason for executing power of attorney was not disclosed. The complaint is two folds, one, that no reason was disclosed for executing power of attorney and two, that it was not tendered in evidence. Response from the respondent was in respect of the first issue that the court was functus officio after the ruling vide Land Revision No. 6 of 2021. Having considered submission of parties, I have found they addressed the court differently from the way the issue was raised. The point raised was whether it was proper for the donee of Power of Attorney to sue in the name of the doner of power of Attorney. This was in relation to names of the parties only and not the validity of the power of attorney, I will thus not determine complaints raised by the appellant. Appearance in court and tribunal is regulated by Order III rule 1 and 2(a) of the Civil Procedure Code, Cap 33 provides; ‘1 Any appearance, application or act in or to any court, required or authorised by law to be made or done by a party in 9 such court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person or by his recognised agent or by an advocate duly appointed to act on his behalf or, where the Attorney- General is a party, by a public officer duly authorised by him in that behalf: Provided that, any such appearance shall, if the court so directs, be made by the party in person. 2. The recognised agents of parties by whom such appearances, applications and acts may be made or done are- (a) persons holding powers-of-attorney, authorising them to make appearances or applications and to do such acts on behalf of such parties.’ Under the above law, is clear that the holder of power of attorney may be for appearances, applications and to do such acts on behalf of doner. Thus, by a deed of power of attorney, an agent is formally appointed to do all acts and deeds specified therein, on behalf of the principal, which when executed will be binding on the principal as if done by him. The scope of the power of attorney is for the agent to exercise such powers to the extent donated to him. See Barreto Hauliers T. Ltd & Another vs Mohamood Mohamed Duale, Civil Appeal No. 7 of 2018 [2022] TZCA 829 (21 December 2022; TanzLII). Upon reading thoroughly power of attorney which was filed in the tribunal on 4th day of May 2021, powers of the donee was in respect of 10 prosecuting and giving evidence in Land Application No. 166 of 2020 and all proceedings incidental thereto including to prosecute or defend any appeal, application on any other case in relation to a mentioned case. It did not extend to institution of the case in the name of the donee. Coming to the issue raised, the decision whether to make visit of locus in quo is not statutorily provided and there is no law which forcefully and mandatorily requires the court or tribunal to conduct a visit at the locus in quo, the same is done at the discretion of the court or tribunal particularly when it is necessary to verify evidence adduced by the parties during trial. In fact it is discarriaged for avoiding the court or tribunal to become a witness to the case and being influenced by what is observed during locus in quo as opposed to evidence adduced in the course of trial. Locus in quo can only be done in exceptional circumstance where such a visit will clear the doubts as to the accuracy of a piece of evidence when such evidence is in conflict with another evidence, to eliminate minor discrepancies as regards the physical condition of the land in dispute; and there is dispute in evidence of the parties as to the identity of the land in dispute. Visit of locus in quo is not meant to afford a party an opportunity to make a different case from the one he led in support of his claims and by large the same witness who testified are those who will be require to verify their 11 evidence during locus in quo. In the case of Avit Thadeus Massawe vs Isdory Assega (supra) the court quoted with approval the decision of the Nigerian High Court of Evelyn Even Gardens NIC LTD and the Hon. Minister, Federal Capital Territory and Two Others, Suit No. FCT/HC/CV/1036/2014; Motion No. FCT/HC/CV/M/5468/2017 in which it was stated; ‘The essence of a visit to locus in quo in land matters includes location of the disputed land, the extent, boundaries and boundary neighbor, and physical features on the land. The purpose is to enable the Court see objects and places referred to in evidence physically and to clear doubts arising from conflicting evidence if any about physical objects on the land and boundaries.’ In this appeal record at page 52 of proceedings bear out that after the closure of the defence case, the respondent herein tabled a prayer for visit of locus in quo, the appellant through his advocate Mr. Mashoke objected the prayer which was followed by the order of the tribunal rejecting the prayer. In that sense the appellant cannot be heard to complain as is the one who did not support the issue of visiting locus in quo, good deal is represented by the same advocate. If anything, the issue is an afterthought. Mr. Mashoke argued ground three and four together but for good reason did not touch issue of adverse possession as raised in ground 12 four. In his submission there is a note that the appellant has used the suit land for more than 50 years, the point to be dealt more when discussing issue number three raised above. In the premises ground three and four fails. Coming to the issue of assessors, Mr. Mashoke has submitted that the tribunal started with two assessors and continued with one without assigning reason. In rebuttal it was stated that the same is permitted under section 23(3) of the LDCA. In terms of section 23 of the Land dispute Court Act, Cap 216, the tribunal is dully constituted when is composed of the chairman and at least two assessors. It provides; ‘(1) The District Land and Housing Tribunal established under section 22 shall be composed of at least a Chairman and not less than two assessors. (2) The District Land and Housing Tribunal shall be duly constituted when held by a Chairman and two assessors who shall be required to give out their opinion before the Chairman reaches the judgment. (3) Notwithstanding the provisions of subsection (2), if in the course of any proceedings before the Tribunal, either or both members of the Tribunal who were present at the commencement of proceedings is or are absent, the Chairman and the remaining member, if any, may continue and conclude the proceedings notwithstanding such absence.’ 13 In this appeal hearing of the respondent’s case commenced on 30/10/2023 as seen at page 16 of the proceedings when PW1 testified and assessors were Vivian and Sarah. Hearing of PW2 continued on 01/02/2024 and one assessor, Vivian was recorded absent, hearing continued with Sarah to its completion and is the one who availed her opinion. In Jasmine Ayoub Ally Mosha vs Ramadhani Ally Mosha, Civil Appeal No. 197 of 2020 [2020] TZCA 27 (26 February 2020; TanzLII) the court observed that; ‘Our observation in this, is this that, there should be appointed assessors once and for all to participate in trial of a certain case whose number should not be less than two. Equally, are the appointed assessors if, one or some of them do not attend, then the chairman and the remaining assessor or assessors may continue and conclude proceedings in terms of the provisions of section 23 (3) of Cap.216.’[Emphasize supplied.] As the continuation of hearing was with the aid of one assessor permitted under sub-section (3) of section 23 of the LDCA, it cannot be said the tribunal was not dully composed. The complaint that the tribunal did not record reason to continue with one assessor is not here or there, it was clear that one of assessor was absent. In the same vein ground five is dismissed. 14 Last is whether the respondent proved his case to the standard required. The law under section 110(1) of the Evidence Act [Cap 6 R:E 2022] is that he who alleges must prove his allegation to succeed in a suit. A party who has the burden of proof must discharge his burden on balance of probabilities in terms of section 3(2) of the Evidence Act regardless of the weakness in the case of his opponent. This means that, the court will sustain and uphold such evidence which is more credible compared to the other on a particular fact to be proved. See African Banking Corporation T. Ltd vs T-Better Holdings Co. Ltd, Civil Appeal No. 207 of 2017 [2024] TZCA 165 (6 March 2024; TanzLII) It is also the law that in civil cases burden of proof is not static, will shift from one party to the other depending upon applicable legal presumptions and the weight of the evidence adduced. In Yusufu Selemani Kimaro vs Administrative General & Others, Civil Appeal No. 266 of 2020 [2022] TZCA 306 (24 May 2022; TanzLII) the court stated; ‘For, in civil cases the onus of proof does not stand still, rather it keeps on oscillating depending on the evidence led by the parties and a party who wants to win the case is saddled with the duty to ensure that the burden of proof remains within the yard of his adversary.’ 15 In this appeal, there is no dispute that the original owner of the suit land was Mista Myombe. The only pertinent issue was whether the appellant was given the suit land. The respondent paraded evidence of PW2 and PW3 who testified that in 1979 the late Mista Myombe left the land in care of some persons including the appellant. The appellant on his part relied on exhibit D1 which is fully reproduced in the judgment of the tribunal at page 5. While the respondent’s evidence was that the appellant was given trees, on his side said the land. In its judgment the chairman after reproducing exhibit D1 held; ‘... Nakubaliana na ushahidi wa mleta maombi (SM1), na mashahidi wake Erica Mista (sm2) na Rahel Mista Manchese (SM3) kwamba mjibu maombi alipewa jukumu la kuangalia tu miti. Hicho ndicho kielelezo D1 kinachosema mjibu maombi hawezi kubadili maana ya kielelezo D1 na kusema kwa hicho kielelezo marehemu alimaanisha kumpa eneo la mgogoro kama zawadi ...’ Literally translated “I agree with evidence of the applicant and his witnesses Erika Mista (PW2) and Rahel Mista Manchese (PW3) that the respondent was given duty to care trees only. That is what exhibit D1 narrates the respondent cannot change the meaning of exhibit D1 and say from that exhibit the deceased meant to give the land in dispute as gift.” 16 In the submission Mr. Mashoke submitted that the appellant did not testify that was given the land through deed of gift. He addressed some weakness in the respondent’s case especially on the size and boundaries. Having scrutinised evidence in record, I agree with Mr. Mashoke that the appellant did not say he was given the suit land as gift. In the law of property therefore, three elements must exist for a gift to be legally valid. One is, as alluded to above, intent to give by the donor, two, delivery of the gift to the recipient, the donee and three, is the acceptance of that gift by the donee. In this matter the appellant leaded was given and during evidence testified as such. It was therefore misdirection on part of the chairman to hold that the appellant did not prove that was given as gift. In his WSD the appellant pleaded that he was given the suit land, the allegation disputed by the respondent. I will examine evidence in record if this allegation was proved. So long as there is no dispute that the suit land originally belonged to Mista Myombe. The respondent evidence led by PW2 and PW3 denied the claim that the appellant was given the suit land. They stated that he was just a care taker of trees. But the appellant insisted was given the land. 17 Having reviewed evidence in record, in my view evidence of the appellant fell short of establishing that he was given the suit land as claimed, no detail of giving was given, including who were present and size of the land given. Through exhibit D1 which was heavily relied by the appellant, it appears three persons were also given but for undisclosed reason were not called to prove that the appellant was given. In Augustine Ayishashe vs Sabiah Omar Juma, Civil Appeal No. 353 of 2019 [2023] TZCA 107 (13 March 2023; TanzLII) the court cited with approval the passage on a book Law of Evidence, 17th Edition Vol. III by Sir John Wood-roffe and Syed Amir Alis, Butterworth, New Delhi at page 4625 on the failure by a party to produce or summon material witness, which states; ‘Where a party falls to call as his witness the principal person Involved in the transaction who is in a position to give a first account of the matters o f controversy and throw light on them and who can refute all allegations of the other side, it is legitimate draw an adverse inference against the party who has not produced such a principal witness.’ Failure of the appellant to call Rashi Mista and Luole Mista who appears in exhibit D1 without any reason raises doubts. The appellant called DW2 in support that he was given the suit land. Upon considering DW2’s evidence, it is doubtful, during examination -in -chief he said at the time of giving was two years old and in cross-examination replied 18 was ten years old. It is impossible that a child of two or ten years was involved in the transaction, that is fetched in answers during cross examination when he replied children were only called to drink sweet malt (togwa). Regarding evidence of PW3 this has no any evidential value as he testified on events before his birth. In Makori Kitege vs Agnes Kichere Mwita, Civil Appeal No. 494 of 2020 [2024] TZCA 315 (7 May 2024; TanzLII) the court held; ‘On the contrary, it goes without saying that the appellant's account is exceedingly improbable. Justly, the tribunal rejected his claim that his father obtained the land in 1982 after the clearance of a pristine area. The appellant, who was born in 1983, was not qualified to provide testimony regarding an event that transpired prior to his birth. In addition, both of his witnesses had no direct knowledge of the purported acquisition of the land by the appellant's father, which would have served to bolster his title claim.’ [Emphasize supplied.] The above applies to this case, DW2 was of tender age, it is improbable to directly be involved in the transaction. That of DW3 was hearsay, he testified on matter which happened before his birth. Further scrutiny of exhibit D1 shows the appellant was given Eucalyptus globulus (miti ulaya) and not land as claimed. I endorse the interpretation given by the chairman on the true intent of 19 exhibit D1 that it did not include land. It is clear in exhibit D1 that while the appellant was given Eucalyptus globulus, Rashid was given Bamboos and Luole Mista farms. Following from the above, I find no reason to fault the decision of the tribunal that the respondent proved his case that the suit land belonged to Mista Myombe. Likewise, the appellant failed to lead plausible evidence to shake the respondent case that he was given the suit land. In the above premises the appeal is devoid of merits and I hereby dismiss it. No order as to costs as parties are relatives. V.M. NONGWA JUDGE 4/12/2024 Dated and Delivered at Mbeya this 4th December 2024 in presence the parties and Mr. William Paul Mashoke Advocate for the Appellant. V.M. NONGWA 20 JUDGE 21