LAND APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA LAND APPEAL NO. 2594 OF 2024 (Originating from Land Application No. 11 of 2022 in the District Land and Housing Tribunal for Karatu at Karatu) KATIBU FOLAY....................................................................... 1st APPELLANT BOAY KWASLEMA.................................................................. 2nd APPELLANT HAMIS GOBEJA...................................................................... 3rd APPELLANT VERSUS GIDAJUR GITONYOD (Legal representative of Gitonyod Gilugwend)..... .......... ..........RESPONDENT JUDGMENT 12/08/2024 & 17/09/2024 NDUMBARO, 3 Aggrieved by the decision of the District Land and Housing Tribunal for Karatu at Karatu the appellant has filed this appeal challenging both the judgment and decree with five grounds of appeal. Primarily, it is worthy noting that the appellants and respondent are blood-related. The Respondent (Gitonyod Giluwend) had a sister (Utuw) i who married to one Mswandi Baghayo whose son is Gidaguy Mswandi. Utuw and Muswandi Baghayo are wife and husband respectively who died and left their son Gidaguy Muswandi who is father to DW1 (Katibu Folay), DW4 (Girgwagwe Mswandi) and grandfather to DW3 (Hamis Gobeja) in trial tribunal. The 1st applicant in the trial tribunal claimed that he inherited the land from his father, and the said father inherited it from his father. The applicant let her sister Utuw use the land, when he went to Shinyanga and on coming back they convened a family meeting on which the agenda was to take back the suit land and it was surrendered back to the applicant before the death of her sister Utuw and brother in law Muswandi Baghayo. In the said family meeting it was further agreed that her sister's son Gidaguy Muswandi can keep using the 4 acres for 2 years. Utuw and Gidaguy Muswandi's sons DW1 and DW4 and grant son DW3 claimed that the land belonged to their father however they did not narrate the story behind acquiring the said suit land. The respondent as a legal representative of his father Gitonyod Gilugwend filed a suit in the trial tribunal against the appellants herein claiming that, the appellants herein invaded into the suit land measured 4 acres the property of the respondent's late father Gilugwend Messasaji, which was given to him since 1955. The matter before the District Land and Housing Tribunal was decided in favour of the respondent herein. Dissatisfied with the decision the appellants herein lodged this appeal. Nevertheless, in his submission, the appellant abandoned grounds number 2, and 4 therefore for purposes of this appeal, the following are grounds of appeal to be determined by this court; 1. That the learned trial tribunal chairperson erred in law and facts for admitting and adjudicating the matter and purportedly to determine the same for finality without first being passed to the ward tribunal for settlement and acted without jurisdiction 2. That the learned trial tribunal chairperson erred in law and facts for erroneously holding that the respondent herein proved the claim without any doubt the land in dispute is their property while there was no sufficient evidence adduced by them to reasonably and judiciary satisfy the honourable tribunal and no any documentary evidence to support the claim that the respondent rightly owned the land in question an act which occasioned injustice on part of appellant herein. 3. That the learned trial tribunal chairperson erred in law and facts for admitting and taking into consideration the wrong documentary evidence and made it the basis for victory by the respondent herein, something which occasioned injustice on the part of the appellants herein. When this appeal was called on for hearing, the appellants were represented by Mr Jackob Malick learned advocate, the respondent on the other hand was under the legal representation of advocate Patrick Maligana. With the leave of this court, the appeal was disposed of by way of written submissions. Submitting in support of the appeal, Mr. Jackob commenced with ground number 1 where he stated that, the District Land and Housing Tribunal chairman admitted the matter in 2022 without it being mediated by the ward tribunal contrary to section 45(4) of Written Law Misc. Amendment Act No. 3 2021, which provides that the District Land and Housing Tribunal shall not hear the matter unless the Ward tribunal certified that it has failed to settle the matter amicably. Nothing shows the matter was referred to the ward tribunal first before District Land and Housing Tribunal. It was his view that the learned chairman acted without jurisdiction and therefore the proceedings, judgment and orders are a nullity. He supported his argument with the case of Issa Iddi Kauza Vs Ally Abdalla Mkoko and Al- Juma Mosque Land Appeal No. 08 of 2022 and Maria Awe Dagno Vs Gwandu Ako Gwandu Land Appeal No, 162 of 2022, whereby the trial tribunal acted without jurisdiction, the decision of District Land and Housing Tribunal was nullified. He therefore prayed the District Land and Housing Tribunal proceedings, judgment and decree be quashed and set aside with costs by this court. Submitting on the 3rd ground of appeal, the learned counsel argued that the trial tribunal erred by deciding that the respondent proved his case that the land belonged to him. He further argued that DW4 testified that the land in dispute was given by their father, and now owned by her brother and nothing was exhibited to prove the same. He also argued that the evidence adduced by the respondent at the District Land and Housing Tribunal are mostly hearsay, contradictory and unspecific, the respondent herein claimed to represent his father on the claim of 4 acres of land, the said land was given by his late father in 1955. He faulted that, at that time the respondent was not born, as he was 40 years old on filing this matter before the trial tribunal, therefore the testimony is hearsay. He argued that the giving of the said land from the respondent's late father to the respondent was not proved. The contradictions on evidence of AW1, AW2 and AW3 in trial tribunal go to the root of the case, AW3's testimony was in favour of the appellants herein. It was their argument that, the defence witnesses collaborated with each other. He cited the Law of evidence Act Cap 6 section 110 and 112 which requires that who asserts must prove, and burden of proof lies to the one who wishes the court to believe on his testimony. The applicant in the trial tribunal who is the respondent herein did not prove the ownership of the disputed land. The testimony of AW1 un corroborated and hearsay, and AW3 testified in support of the respondent. Argued, it was wrong for trial tribunal to establish that the applicant proved the case beyond doubt. On 3rd ground, the trial tribunal admitted the document wrongly (exhibits Pland P2), and the document ware not explained he referred us to page 5 of the trial proceedings the exhibit was not explained on its contents, further the boundaries of the said suit land of 4 acres. He prayed this court to consider the grounds and the appeal be allowed and the decree of the trial tribunal be quashed and set aside. Responding to the appellant's submission, Mr. Patrick Maligana with regard to the ground that the case initially was not filed before the ward tribunal, he argued that the trial tribunal records show that the matter was initially filed before the ward tribunal but the ward tribunal was not in existence therefore on 09/02/2022 the executive ward officer wrote a letter to the District land and housing tribunal to proceed with the matter since no ward tribunal was constituted in the respective Ward. He further argued that it is a matter of practice that if the ward tribunal fails to settle the matter amicably then shall notify the District Land and Housing Tribunal on failures, which it was done by ward executive officer. It was therefore his view that this ground is meritless. On the 3rd ground, initially the respondent faulted that standard of proof in land matter is as in civil cases and not beyond reasonable doubt as in criminal cases. He further argued that the trial tribunal was to prove the ownership of land, and it proved the same to belong to Gitonyod Giluwend. Gidajur Gitonyod (AW1) acted under power of attorney given by his father Gitonyod Giluwend. AW1 testified the land was allocated to Giluwend Mesasaj who passed it to his son Gitonyod Giluwend, who for reasons of pastoralism moved to shinyanga and left the land under the care of her sister Atuw, on coming back they convened the meeting (PI and P2 collectively) and the land was returned back to Gitonyod Giluwend. Argued the respondent herein under the power of attorney testified by tendered exhibit and supported with oral evidence of witnesses. The issue that the evidence tendered was not explained on his relevance, argued the evidence was tendered and admitted as exhibit PI and P2 which are family meeting minutes whereby the family agreed to surrender suit land to the respondent herein. On the issue that the boarders of the disputed land not shown, make reference on the 1st page of trial proceedings, that the borders were shown. Therefore, ground to have no merit. Argued further the stated law cited by the appellant to be contravened was not applicable under this case and invited the court to go into the court record and make the decision. In rejoinder, the applicant reiterated his submission in chief and argued, the respondent's faulted that the cited case is distinguishable but did not say exactly which decision was distinguishable. On the issue that the matter was not referred to the ward tribunal, there was no evidence showing that the matter was referred to the ward tribunal for amicable settlement. In page 2 of trial tribunal shows the matter was referred to Mang'ola Ward Offices and shows the ward tribunal was yet to be established and ward execution officer wrote a letter to the effect that the ward tribunal do not exist. This shows the matter was not refered to ward tribunal contrary to law. The appellants were of the view that this appeal has merit and prays this honourable court to allow and set aside the trial tribunal proceeding, judgment and decree. The above said, I shall now proceed with the issue, of whether the trial tribunal was justified to hold that the respondent is the lawful owner of the disputed land. In the first ground the matter did not pass to the ward tribunal, the respondent herein faulted that, there was no ward tribunal in that area to that effect the executive ward officer wrote the letter informing the District Land and Housing Tribunal (DLHT) of the same and requested to proceed. The position of law in the Written Laws (Miscellaneous Amendments) (No. 3) Act, 2021 which amended Section 45(4) of the Land Disputes Courts Act, (Cap. 216) is clear that the DLHT shall not hear the matter if the same has not been mediated before by the Ward Tribunal. Part of the provision is quoted hereunder as follows; "Notwithstanding subsection (1), the District Land and Housing Tribunal shall not hear any proceeding affecting the title to or any interest in land unless the ward tribunal has certified that it has failed to settle the matter amicably. Provided that, where the ward tribunal fails to settle a land dispute within thirty days from the date the matter was instituted, the aggrieved party may proceed to institute the land dispute without the certificate from the ward tribunal". Referring to the trial tribunal's records, in the first document annexed, the Ward Executive Officer wrote a letter to the District land and housing tribunal that informing it that the said Gidajur Gitonyod went to their office in respect to came into our office on his land matter but no ward tribunal was constituted in that ward. 10 It is clear from the above provision in the Land Disputes Courts Act supra, the requirement is relaxed if parties fail to settle the matter within 30 days. However, it was not possible to affect a settlement in this matter since the ward tribunal were not constituted in that jurisdiction. The blame of failures to institute is not to the parties but rather the system. We all know that the spirit behind mediation is amicable settlement of dispute with low costs and within short time. Basing on the said spirit and considering the interest o fjustice, it is my view that, there is no hard rule when the ward tribunal is not constituted in a particular jurisdiction, the party should not be penalized for failing to use a non-existing mediation process, the absence o f a ward tribunal in a particular jurisdiction may justify bypassing the mediation step and directly accessing District Land and Housing Tribunal. The respondent herein went to the ward tribunal and was informed the ward was not constituted in that jurisdiction. The Ward Executive officer took initiative to inform the District Land and Housing Tribunal to that effect. It is my view that respondent may not be penalized on that failure which was out of his control. I therefore find this ground to have no merit. 11 On the third ground the appellant claiming that, the case was not proved beyond doubt, no sufficient evidence to support the claim and evidence of AW1 is hearsay. Going to the court record particularly on trial court proceedings, AW1 at page 4 and 5 testified that, he was acting under the power of attorney for respondent who is his father. Respondent received the said land from his father since 1955, he went to Shinyanga and came back on 1965 whereby the family agreed to give back the possession of the suit land to the respondent herein. The document for family meeting was tendered before the court and admitted as exhibit PI and P2. At page 19 of trial court proceedings the appellant herein arraigned witness, DW1 who is 1st appellant herein testified that, the land belonged to his late father, DW2 testified to have no interest on suit land as he used to land for farming and DW3 in page 21 testified that the land belonged to his father Gobeja Muswandi, and DW4 testified that DW1 is his uncle's son, the land was belong to his father Muswandi. As previous noted the parties are related to the sense that AW1 father's sister one ATUW married to DW1 and DW4 father's grandfather, and DW3 is grand son to the said father's grandfather. The appellant witness claiming the interest and testified to have received the suit land from their father, however no 12 document tendered to justify how the ownership passed to them. It is the principle of law that anyone want the court to believe on his testimony must proof the existence of the fact as it was stated in the case of Hamza Byarushengo vs Fulgencia Manya & 4others, Civil Appeal No. 246 of 2018 (Reported Tanzlii). Generally, in civil cases, the burden of proof lies on a party who alleges anything in his favour. The principle is embraced in section 110 of the Evidence Act Cap 6 R.E 2019. It is also common knowledge that in civil proceedings, a party with legal burden also bears the evidential burden and the standard of proof is on the balance of probabilities. Moreover, the burden of proof never shifts to the adverse party until the party on whom onus lies discharges. It is my view that the appellant herein the appellant did not prove his case to satisfy this court on this ground. In the 5th ground that, the issue that document was wrongly tendered, going through trial court record page 5 it is clear that, the document was tendered, identified and read aloud before the court, and the respondent therein did not object its admission. I therefore find no injustice occasioned to the appellant herein. The issue that the land demarcations were not shown, I had ample time to go through the court records, the respondent at the trial tribunal,at paragraph 3 shows the location of suit land and its demarcation as follows; 1. South bordered with the land of Jarro Gilulu, 2. North bordered with Mang'ora river, 3. North East bordered with Muswandi Baghayo, 4. South East bordered with Tatu Sikay and 5. West bordered with Mangola river, The judgment of trial tribunal also clearly showed the demarcation. I therefore find this ground to have no merit. From the evidence of the parties, it is my considered view that the dispute between the parties is on whether the suit land belong to the appellants or the respondent. The respondent testified by showing the borders on the suit land, tendered exhibits to the effect of taking back the ownership of suit land which was admitted before the court as exhibit and it was not cross examined by respondents in the trial tribunal who are appellants herein. From the submission of the parties and record of this appeal, and taking consideration the position of the law on ownership of land, this court sees 14 no reason to fault the decision of the trial tribunal that the appellants herein failed to sufficiently prove their ownership over the land in dispute. Therefore, it is the finding of this court that the suit land belonged to the respondent Gitonyod Giluwend. That said I also find no merit in this appeal and it is hereby dismissed with costs. It is so ordered. D. D. NDUMBARO JUDGE 17/ 09/2024 15