final Judgment KAROLI KIMARIO Tanzlii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB - REGISTRY AT MOSHI LAND APPEAL NO. 1371 OF 2024 (Appeal from the Judgment of the District Land and Housing Tribunal of Moshi at Moshi dated 8th March, 2023 in Land Application No. 13 of 2017) KAROLI KIMARIO…………….…………………………APPELLANT VERSUS PETRO MAKINI………..………………………………RESPONDENT JUDGMENT 4th & 30th September 2024 A.P. KILIMI, J. The respondent hereinabove sued the appellant mentioned above at the Land and Dispute Tribunal of Moshi at Moshi praying to be declared the owner of ‘the suit land’ measuring about 9.61 acres situated at Mwereni Mkonga Chini hamlet, Kisangesangeni Village within Moshi District. He also concurrently prayed to be paid Tshs. 17,850,000/= as compensation for the trees alleged to be cut by appellant at the suit land, General damages to the tune of Ths. 5,000, 000/= and costs of the case. 1 In his amended application document filed at the tribunal on 24th June 2019, the respondent detailed that the said suit land was given to him by his little father one Mateke Ntamuheza in 1986 in the presence of witnesses. At the trial tribunal the respondent to prove his case paraded 4 witnesses whereas the appellant herein defended himself and procures 4 witnesses. After considering them the trial court gave judgment in favour of the respondent and reasoned that the respondent did prove he obtained the suit land to be given to him by Mateke Nitamuheza in 1986 and dismissed appellant defence because, appellant said the suit land belong to the member of the family of their late father, thus it was not his private property. The trial tribunal proceeded to dismiss compensation and damages claimed and reasoned that, at the time the appellant was cutting the alleged trees the issue of ownership was not settled thus, he did so while believing that the suit land belongs to him. Following the above decision of the trial tribunal, the appellant was dissatisfied and now has moved this court by way of appeal basing grounds paraphrased as follows; First, The tribunal erred in law and fact in disregarding applicant interest over the suit land for a fact that the 2 disputed land is co-owned by appellant and his family as joint owned property; Second, the tribunal erred in failure to properly analyze evidence leading to misapprehension of quality of the Appellant evidence; Third, the tribunal erred in law in relying on argument that the respondent herein did not give mandate to the appellant to sell his land during the trial: Fourth, the tribunal erred in law and fact by deciding that Appellant failed to prove the ownership of the land in dispute; Fifth, the tribunal erred in law and fact for considering the false evidence adduced by the respondent hence reaches unfair decision; and Sixth, the tribunal erred in denying Appellant to tender documentary exhibits contained in the list of additional documents filed in the Tribunal Registry on 16th June 2021 without objection by the Respondent. When this appeal was called for hearing before me, the appellant appeared in person, unrepresented, whereas the respondent enjoyed the services of Mr. Fautine Materu learned advocate. With the leave of this court this appeal was argued by way of written submissions, and the record shows appellant submission was drawn in gratis by Mr. Joseph Moses Oleshangay learned Advocate from Legal and Human Rights Centre at Arusha. 3 Before I proceed with the merit of this appeal, I wish to address the complaint by the respondent in his submission that this appeal was filed outside the extended period of twenty-one (21) days granted to the appellant on 11th October, 2023 vide Misc. Land Application No. 19 of 2023. The respondent expounded his claim that, appellant was obliged to file his appeal on or before 31st October, 2023. However, as it can be seen the present appeal is of the year 2024 and not 2023. Even in his submission the appellant has indicated that his appeal is of the year 2024. Another complain by respondent is that the appellant has not filed the receipt for payment of filing fee to show when this appeal was filed, thus his appeal is competent before this court. In respect to the first complaint above, it is true that this court granted extension of time to file this appeal to the appellant on 11th October, 2023 vide Misc. Land Application No. 19 of 2023 and gave the appellant a period of twenty-one (21) to do so. I have revisited the record of this court, I have seen this appeal was filed on 30th October, 2023 and 4 signed by the Registry officer, Thus, this is within the time allowed to do so, therefore, this claim crumbles for want of merit. In respect to the court fees, in my perusal to the electronic case management system I have found the said receipt was uploaded therein, his Receipt is No. EC102277644187 and paid by Payment Control Number 991401188171. Therefore, again also this claim is dismissed forthwith for want of merit. Now back to the grounds of appeal listed above, I have scanned the trial tribunal record and submissions from both parties, I am of the view for convenient of disposing this appeal, I wish to start with sixth ground of appeal. However, this court being the first appellate court from the tribunal, I wish to be guided by the principle providing that the first appellate court has a duty to re-evaluate the entire evidence in an objective manner and arrive at its own findings of fact, if necessary. See the decisions of the Court of Appeal in Future Century Ltd vs TANESCO, Civil Appeal No. 5 of 2009, and Makubi Dogani v. Ngodongo Maganga, Civil Appeal No. 78 of 2019 (all unreported). The Court of Appeal held in Future Century Ltd v. TANESCO, (supra) that- "It is part of our jurisprudence that a first appellate court is entitled to re-evaluate the 5 entire evidence adduced at the trial and subject it to critical scrutiny and arrive at its independent decision." In the said ground number six, the appellant is faulting the tribunal decision when denied him to tender documentary exhibits contained in the list of additional documents filed in the Tribunal Registry on 16th June 2021. I have scanned the trial court record, at page 26 of the typed proceeding, it is true that appellant at the tribunal prayed to file additional document, the respondent objected, then on the same day which was 16th June 2021, the tribunal overruled the objection and ordered the same to be filed, and the appellant filed it on the same as said above. Now having the above observation, the issue for determination is whether the appellant was denied to tender the said documentary exhibits as claimed. I have revisited the record in such respect, it shows there are two attempts by the appellant to tender the said exhibits, the first was on 31/8/2021 where in his testimony at the trial tribunal the appellant as shown at page 29 of trial proceeding prayed to tender sale agreement dated 7/5/1980, the same was succumbed into objection from the 6 respondent, then the tribunal adjourned for ruling to next time. On 27/10/2021 the tribunal overruled the objection and allowed the appellant to tender the said document, for purpose of clarity at page 30 of the tribunal proceeding the learned tribunal chairman had this to say; “Since he is the Applicant who opted to sue the Respondent though the Respondent is not administrator of deceased estate, but I believe that he (The Respondent) has a right to defence himself by even tendering his documents since he was sued by Applicant, he cannot deny him a right to tender his docum ents. Whether the Respondent who is not administrator can rely to the documents relating to deceased is estate or not is a point w hich w ill be determ ined during preparation of judgm ent and therefore not at this stage” [ Emphasis is mine] According to the above extract, I am of settled view that the appellant was allowed to tender the said documentary exhibit, but I have perused the record of the tribunal, nowhere it was marked admitted for further 7 determination. According to The Land Disputes Courts (The District Land and Rousing Tribunal) Regulations, 2003, Regulation 10 provides; I0. (1) The Tribunal may at the first hearing, receive documents which were not annexed to the pleadings without necessarily following the practice and procedure under the Civil Procedure Code, l966 or Evidence Act 1967 as regards documents (2) Notwithstanding sub-regulation (1) the tribunal may at any stage of the proceedings before the conclusion of hearing allow any party to the proceeding to produce any material documents which were not annexed or produced earlier al the first hearing. (3) The Tribunal shall before admit any document under sub- regulation (2) ensure that; (a) a copy of the document is served to the other party; (b) Have regard to the authenticity of the document. According to the above regulation, it does not provide for the procedure for marking exhibits or endorsement, however, I have referred the practice of this court and its subordinate the above is the practice, even in this matter at the tribunal at page 10 the respondent tendered a 8 copy of ward tribunal judgment which was admitted as P1. I think this is also the practice of the tribunal since under the Land Dispute Act Cap 216 section 51 (2) provides that The District Land and Housing Tribunals shall apply the Regulations made under section 56 and where there is inadequacy in those Regulations it shall apply the Civil Procedure Code. Cap. 33 “CPC” Thus, having found the same was not marked as admitted, my next question is whether it prejudiced the appellant. In the case of A.A.R Insurance T. Ltd vs Beatus Kisusi (Civil Appeal No. 67 of 2015) [2016] TZCA 191 (TANZLII), the court observed that once the exhibit is admitted, if it is in civil proceedings, it must be endorsed as provided under O.XIII, R.4 of the CPC. And was of the view that the need to endorse is to do away with tempering with admitted documentary exhibits. I have considered the said rules is coached in mandatory term. Nonetheless the same was not read to the respondent, I have considered the facts that additional notice was allowed to be filed earlier before the tendering of this document obviously the respondent had a chance to see it thus was not prejudiced. 9 From the above import of the law, the next issue to be answered is what is the effect of marking the said exhibits or endorsement. In the case of A.A.R Insurance T. Ltd (supra) the court observed that none complying with the rules of admissibility and Endorsement, in term of O.XIII, Rule 7(1) of CPC causes the said document tendered not to form part of the record, thus should be expunged. In that view, I am of considered opinion the same should also be expunged in this matter which in fact is to the detriment of the appellant who tendered it; thus, I am settled he was prejudiced. Therefore, I find the tribunal flawed in this procedure, thus this ground of appeal succeeds to that extent. Nevertheless, be that as it may, I have considered the trial tribunal judgment, I am aware the author of that judgment is not the chairman who heard the proceeding in above respect, but with respect I think he was required to comprehend the said document tendered although was not marked. The only part of the said judgment which considered the defence of the appellant is reflected at page 6 of the trial tribunal judgment as quoted herein that; “Kwa upande mwingine wa utetezi mjibu maombi alisema kwamba eneo hilo la mgogoro lilinunuliwa na baba yake kutoka kwa mtu 10 aitwaye Kamele Kilian mwaka 1980. Hata hivyo mjibu maombi alisema kwamba eneo hilo la mgogoro siyo mali yake binafsi bali ni mali ya familia” I am aware; the spirit of the Act governing land disputes is inferred in the provision of section 45 of the Land Dispute Act Cap. Cap. 216, R.E. 2019 which entails that errors or omission if does not occasion failure of justice ought to be disregarded. The same provides; “No decision or order of a Ward Tribunal or District Land and Housing Tribunal shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings before or during the hearing or in such decision or order or on account of the improper admission or rejection of any evidence unless such error, om ission or irregularity or im proper adm ission or rejection of evidence has in fact occasioned a failure of justice” [ Emphasis added] 11 For the foregoing above and the extract of the tribunal judgment, nowhere the tribunal discussed the said document though not admitted. In the same tune of being prejudiced, here in my settled view the appellant was also denied to be heard of what he intended the court to know from the said documentary exhibit which was the sale agreement. I am aware that at the trial tribunal the appellant said that the suit land belongs to their family and was not his personal property, but according to principle of fair hearing, his document tendered ought to have been evaluated and gauged whether supported his case or not. Other issues could have been solved thereon, for instance, whether he was the author or had locus stance or not and not to disregard it totally as the trial tribunal did. In view thereof I am settled the tribunal flawed in fair hearing henceforth the appellant was prejudiced which in fact occasioned a failure of justice. The next point to be considered is what is the effect of the above lack in fair hearing. It is a trite law that right to consider defence case is the right to be heard, the fact that the said exhibit was not considered, denied the said right to the appellant, thus, any decision arrived at, without a party getting an adequate opportunity to be heard is a nullity even if the same decision would have been arrived at had the affected party been 12 heard. (See Director of Public Prosecutions vs Rajab Mjema Ramadhani, (Criminal Appeal No. 223 of 2020) [2023] TZCA 45 (TANZLII). In the second attempt, it was on 23/03/2022, as displayed at page 38 of the typed proceeding, the appellant prayed to tender his document as listed in additional documents, the counsel for the respondent objected. At page 39 of the tribunal proceeding a ruling was delivered and allowed the appellant to proceed with the defense in order to tender the said exhibits. Unfortunately, on 13/2/2023 the appellant did not turn up to defend his case in order to tender the said documents, therefore the tribunal closed his case for none attendance. In my view I think he acquiesced his right to be heard. However, in his prayer as above he prayed for second chance to see whether he can place his documents into the tribunal record, but he ought to have presented all documents during his testimony when he tendered one document which was not considered as alluded above. Nonetheless, since as said above, I have taken regard the effect of not considering the tendered document, and the basic principles in the administration of justice which imposed a duty on the court to determine the dispute of the parties 13 brought before it. Thus, the primary purpose of a judgment is to set out qualitatively by reference to the evidence that is accepted or rejected; the primary facts that the judge or magistrate finds to relate those findings to the factual issues in the case; and to show how any inference has been drawn. Therefore, in considering the flawed of a tendered document as above, I am of considered view these documents also follows the suit. On the premises and from what I have endeavoured to discuss above, I find this sixth ground of appeal have merit. Furthermore, I find that the determination this ground of appeal is sufficient to dispose of the appeal and thus I find no need to consider and determine the remaining grounds of appeal. Consequently, I, in the exercise of supervisory powers vested in this Court by section 43(1)(b) of the Land Disputes Courts Act (supra), the proceeding of the District Land and Housing Tribunal of Moshi at Moshi in Land Application No. 13 of 2017 only in respect to the testimony of the appellant in his defence is hereby nullified, quashed and set aside. His witness’s testimonies and the whole plaintiff/applicant’s case remained undisturbed. Subsequently, I quash and set aside the judgment and decree of the tribunal in this matter. I thus, hereby order this case file be remitted 14 at the tribunal and the appellant only as a witness be heard afresh and allowed to tender his documents as ruled by the tribunal in its proceeding. In the circumstances I order the same be heard by another different learned Chairman of the District Land and Housing Tribunal. After considering tribunal participation in the circumstances stated, I order each party to bear its own costs. It is so ordered. DATED at MOSHI this 30th day of September, 2024 X JUDGE Signed by: A. P. KILIMI Court: Judgment delivered today on 30th day of September, 2024 in the presence of Appellant and Respondent both in person. Sgd; A. P. KILIMI JUDGE 30/09/2024 15 Court: Right of Appeal duly explained. Sgd; A. P. KILIMI JUDGE 30/09/2024 16