kaunda obando vs yunes sese 2020 tzhc 4214 10 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF MUSOMA

AT MUSOMA MISCELLANEOUS LAND APPEAL NO 32 OF 2020 {Arising from the decision of the District Land and Housing Tribunal in Land Appeal No 113/2016 and Originating from land Application No 014 of 2016 at Bukura Ward Tribunal) KAUNDA OBANDO................................... APPELLANT Versus YUNES SESE........................................................ RESPONDENT

JUDGMENT 23rd November & Iffh December, 2020 Kahyoza, J The dispute in this appeal is on ownership of a piece of land. This is a second appeal. Yunes Sese, the respondent sued Kaunda Obando in the Ward Tribunal of Bukura for trespass. Yunes Sese emerged successful. Aggrieved, Kaunda Obando appealed to the District Land and Housing Tribunal and lost. Dissatisfied still, Kaunda Obando appealed to this Court contending that- l .The appellate tribunal erred in law by failing to consider the and analyze properly the grounds of appeal and written submissions filed from the beginning; 2 .The appellate tribunal erred in law by manufacturing its own evidence that had never been part of this case right from the beginning; 3 . The appellate tribunal erred in law by failing to give reasons i why it differed with the opinion of Assessors. The appeal was heard orally. The appellant enjoyed the services of Mr. Boniphace Sariro advocate whereas the respondent fended for herself. I will not reproduce the submission. I refer to the submissions while determining the issues raised by the grounds of appeal. Did the appellate tribunal properly consider and analyze the grounds of appeal and submission? The appellant's advocate submitted that the appeal before the appellate tribunal was heard by written submission and each party submitted a detailed analysis of the evidence. Unfortunately,

the appellant tribunal neglected to consider the submissions. He prayed this court to review the appellate tribunal's judgment to find out if it played its role. The respondent had nothing to reply. She relied on her written reply to the petition of appeal before the appellate tribunal and the evidence before the . I had a cursory look at the evidence on the record and found facts not in dispute as follows; The land in dispute is situated in Kirongwe village. Yunes Sese, the respondent and her husband occupied the land in dispute before the Operation Vijiji. The Operation Vijiji moved them to Nyahera village, where they stayed until 1987. The respondent moved back to Kirongwe village during the time she described that the villages were expanding. She submitted a letter from Nyahera village to Kirongwe village. Kirongwe village accepted her to be its resident. She applied for land. Fortunate the land they left behind was not occupied. She was allocated the land she owned before 2 Operation Vijiji. The appellant's family (Obando Misso) and the family of Kisare Okodo were using the land for farming. They vacated the land and the village authority allocated the land in dispute to the respondent. It is on record that among the people who allocated the disputed land to the respondent was Kisare Okodo, the village chairman at that time and one of the people who vacated the land

allocated to the respondent. The village secretary of Kirongwe in 1987, Nico Oganda Nyodongo gave evidence that he was one of the members of the village authority, which considered the respondent's application and granted it. He deposed that- "Kwenye ardhi niliyokabidhiwa Hikuwa seheme ya ardhi ng'ang'anizi Hioko kando yam to sakawa na walipewa Karogo Mission a Obando Misso. 1987 mdai Yese a Hom ba kurudi kuishi katika kijiji cha Kirongwe akitokea Nyahera alipohamia awaii. Kwa bahati nzuri alikubaliwa kuishi Kirongwe, bahati nzuri niliyoisema alipataeneo take la mahame badi iiikuwa wazi hivyo aiijengeshwa k wen ye mahame yake." It is against the above the above background I consider the first ground of appeal. The complaint in the first ground of appeal is that the appellate tribunal did not analyze the submissions and the grounds of appeal. I reviewed the judgment. The judgment depicts that the appellate tribunal reviewed the evidence and considered the submission. The chairman stated at page three that- "After going through the submission from both sides and upon my perusal of the original records inside the case file I have noted that before operation vijiji in 1974 the land in dispute was owned by the respondent together with her husband. In 3 1974 during Operation vijijij. ..." I am convinced that the appellate tribunal did consider the submission and evidence on record.

It reviewed the evidence on record. It should not escape our mind that the appellate tribunal was the first appellate tribunal, its duty was to re-evaluate the evidence on record. It is settled that the first appellate court or tribunal is entitled to review the evidence on record. The appellate tribunal required to analyze the evidence as it did. See Siza Ptrice V. R Cr. Appeal No 19/2010, where the Court of Appeal observed that- "l/l/e understand that it is settled law that a first appeal is in the form of a rehearing. The first appellate court has a duty to re­ evaluate the enter evidence in an objective manner and arrive at its own findings of fact, if necessary" I wish to point out that this is a second appeal. It is trite law that where there are concurrent findings of facts by two courts, the second appellate court should not disturb the findings, unless, it is clearly shown that there has been a misapprehension of evidencing a miscarriage of justice or violation of some principle of law or procedure. (See Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Stores Vs. A.H Jariwalla tla Zanzibar Hotel [1980] T.L.R 31.). The instant case both tribunals found for the respondent that the disputed land belonged to the respondent. I examined the evidence on record and formed an opinion that I cannot fault the two tribunals, for the following reasons: one, there is ample

evidence prove that the village authority allocated the disputed land to the respondent in 1987. The respondent came from Nyahera village applied the for land. The village 4 authorities of Kirongwe allocated the disputed land to her. There is no doubt after she left to Nyahera with her husband, the disputed land was cultivated by appellant's family and another family. They vacated the land giving way to the respondent to re-occupy after the village authorities allocated it to her. I am alive of the principle of law that no one should challenge allocation of land during Operation Vijiji whether made under or in pursuance of a law or contrary to or in disregard of any law. See section 15 (1) of the Village Land Act, 1999 (Act No. 5/1999), which stipulates that quote: - "An allocation of land made to a person or group of persons residing in or required to move to and reside in a village at any time between first day of January 1970, and the thirty first day of December, 1977, whether made under or in pursuance of a law or contrary to or in disregard of any law, is hereby confirmed to be and to have always been a valid allocation capable of and in law giving rise to rights and obligations in the party to whom the allocation was made and extinguishing any rights and obligations vested in any person made under any law which may have existed in that land prior to that allocation

giving rights and obligations." The above principle does not apply to the instant case. The respondent moved to Nyahera village during operation vijiji. She returned to Kirongwe village, her original village before the operation of vijiji, applied for land from the village authority. She was fortunate as the village authority allocated to her the land in dispute, the land she occupied previous to Operation Vijiji. She did not claim back the land from people to whom the land was allocated to, during the Operation 5 vijiji. She was allocated land by the village authority. Nico Oganda Nyodongo, the village secretary at the time the respondent applied and the village authority allocated her the disputed land, gave uncontracted evidence that the village authority allocated her the disputed land. I find him, like both tribunals did, a credible witness. Two, I am unable to fault the appellate tribunal on the ground that there is ample evidence that the respondent has been in occupation for uninterrupted period of more than 12 years. There is overwhelming evidence that the respondent moved from Nyahera village back to Kirongwe village in 1987. She stayed peacefully at Kirongwe village from 1987 to 2016 when the dispute ensured. Even if, the respondent had no title to the disputed land she has acquired title by adverse possession. The law regarding the principle of adverse possession is

settled. The Court of Appeal in the case of Registered Trustees of Holy Spirit Sisters Tanzania v. January Kamili Shayo and 136 Others, Civil Appeal No: 193/ 2016 (CAT unreported) emphasized facts to be considered before the principle is applied. It quoted with approval the Kenyan case of Mbira v. Gachuhi [2002] E.A. 137 (HCK) in which again, reliance was made on the cases of Moses v. Lovegrove [1952] 2 QB 533 and Hughes v. Griffin [1969] 1 All ER 460. It was held that:- "[On] the whole, a person seeking to acquire title to land by adverse possession had to cumulatively prove the following- 6 (a) That there had been absence of possession by the true owner through abandonment; (b) that the adverse possessor had been in actual possession of the piece of land; (c) that the adverse possessor had no color of right to be there other than his entry and occupation; (d) that the adverse possessor had openly and without the consent of the true owner done acts which were inconsistent with the enjoyment by the true owner of land for purposes for which he intended to use it; (e) that there was a sufficient animus to dispossess and an animo possidendi; (f) that the statutory period, in this case twelve 12 years, had elapsed; (g) that there had been no interruption to the adverse possession throughout the aforesaid statutory period; and (h) that the nature of the property was such that in

the tight of the foregoing, adverse possession would result." In the upshot, I find the tribunal's finding supported by evidence on record. I dismiss the first ground of appeal. Did the appellate tribunal manufacture its own evidence? The appellant complained that the appellate tribunal erred in law by manufacturing its own evidence that had never been part of this case right from the beginning. The respondent had no reply. She told this Court that her evidence was on the record. I scrutinized the evidence on record, I wish to state at the outset that the complaint that the judgment of the appellate tribunal was not based on the evidence on record is baseless. I had an opportunity to 7 review the whole evidence on record, to say the least, I am unable to avoid a conclusion that the respondent's case is heavier and more convincing than that of the appellant. The appellant has not reasons to complain. The appellate tribunal's judgment and findings emanated from the evidence on record. Did the chairman give reasons for differing with assessors? The appellant complained in the last ground of appeal, that the appellate tribunal erred in law by failing to give reasons why it differed with the opinion of Assessors. The respondent had nothing substantive to reply. There is no doubt that section 24 of the Land Disputes Courts Act,[Cap. 216 2002] (the LDCA) makes it mandatory to the

Chairman of the Tribunal who sat with two assessors to give reason for differing with the opinion of the assessors or any of them. Failure to comply with the mandatory provision of section 24 of the LDCA renders the proceedings and the judgment therefrom a nullity. The Court of Appeal in S.D.A. Church Keisangura v. Nyaikwabe MASARE, Civil Appeal No. 112 Of 2015 (CAT unreported) quashed the proceedings, judgment and set aside the decree of the trial Tribunal for failure to give reason for differing with one of the assessors. Section 24 of the LDCA stipulates- ”24. In reaching decisions the Chairman shall take into account the opinion of the assessors but shall not be bound by it, except that the Chairman shall in the judgment give reasons for differing with such opinion." I examined the judgement of the appellate tribunal and found 8 that the chairman gave reason for differing with the assessors. Thus, the complaint is baseless. He stated that- "As the respondent lived in the disputed land for 29 years I differ with assessors' opinion that was in the of the appellant's] favour and I hereby dismiss the appeal." The chairman gave the reason for differing with the assessors' opinion. The reason, the chairman advanced, may not be sufficient or convincing all the same, that cannot the ground to condemn him that he failed to give reason. Whether the chairman's ground for differing with assessors' opinion is sounding or not, is a question to be determined on appeal. I find no merit in the complaint and dismiss the third ground of appeal. In the end, I uphold the decision of both tribunals that the respondent is the owner of the disputed land. Consequently, I dismiss the appeal for want of merit with costs. It is ordered accordingly. J. R. Kahyoza

JUDGE 10/12/2020 Court: The Judgment to be delivered by the Deputy Registrar. J. R. Kahyoza, J. 10/12/2020 9 Acting Deputy Registrar: The judgment delivered in the presence of the Appellant and the respondent who is represented by Christopher Sese. T. J. Marwa - Ag. DR 10/12/2020 10