khamis haji ussi others vs juma ali juma others 2015 tzhc 2205 18 march 2015

IN THE HIGH COURT OF ZANZIBAR HELD AT VUGA CIVIL APPEAL NO. 11 OF 2014 From Original Decree in Civil case No. 49 of 2008 of the LAND TRIBUNAL - ZANZIBAR KHAMIS HAJI USSI AND 9 OTHERS .............. APPELLANT VERSUS JUMA ALI JUMA AND 3 OTHERS ........... RESPONDENT JUDGMENT BEFORE ABDUL -HAKIM A. ISSA, J This appeal arise from the decision of the Chairman of the Land Tribunal, Haroub Sh. Pandu (RM) in Civil case No. 119/2008 at Vuga, Zanzibar. The background to the case is that the Appellants, Khamis Haji Ussi and 9 others filed a Civil suit No. 119 of 2008 at the Land Tribunal against the Respondents, Juma Ali Juma and 3 others. The claim is for the plot of land situated at Matemwe Tundagaa whereby the Appellants claim that they own a piece of land which they inherited their parents. This land has been trespassed by the first, second and third Respondents and then soid it to the fourth Respondent. The learned Chairman of the land tribunal heard the matter and delivered his Judgment against the Appellants on 13/9/2013. The Respondents were declared to be the owners of the disputed land . The Appellants being aggrieved with the said decision preferred this appeal. They filed a memorandum of appeal which contained five grounds appeal, which can be summarized as follow:- 1. That the learned Chairman of Land Tribunal erred in law by giving right of ownership of the disputed land to the Respondents who legally have no Colour of right on that land. 2. That the learned Chairman erred in law by using the law of limitation (limitation Decree) in an appropriate situation taking into consideration the trespass of the disputed land started in 2005 and they failed to resolve the dispute the case was file in Court in 2008, three years after the trespass. 3. That the learned Chairman erred in law in enforcing the exhibits of the Respondents which show the area was sold in 1995 which is not true as the disputed land was used by Appellants at that time. 4. That the learned Chairman erred in law by not asking the confirmation Respondent No. 1 and 2 who are purported to purchase the coconut trees from Donge Chale and Respondent No. 3 who purchased coconut trees from Makame Ali. This was not proved and there is no document to confirm the sale. 5. The learned Chairman was impartial in his Judgment and there was confusion. Also he erred by not considering the opinion of the assessors which clearly show the ownership of the appellants on the disputed land . On the hearing of this appeal, the appellants were represented by learned advocate, Mr. Idi A. Hussein and the Respondents were represented by learned advocate, Mr. Omar Said. With respect to the first ground of appeal, Mr. Hussein argued that the learned Chairman erred as there was no document of title given by Respondents to show that they are the owner of the disputed land. They showed the document of selling the plot and not owning the plot. Further, the witnesses brought by Respondents, DW5, DW6, DW7 and DW8 gave contradictory statement regarding the sale of the plot and the presence of Sheha. With respect to the second ground of appeal, Mr. Hussein argued that the learned Chairman erred in using limitation Decree. He referred to paragraph 133 of the Limitation Decree and submit that the limitation starts to run when the invasion started. The adverse possession started in 2005 when invasion started and the case was instituted in 2008, 12 years period has not lapsed in this case. He further submitted that Preliminary Objection was raised on the issue of limitation and the ruling (P.21 of the proceedings) over rule the Preliminary Objection, but in his Judgment he contradicted himself that the case was time - barred. Regarding the third ground of appeal, Mr. Hussein argued that the Appellants were living in the disputed plot of land from 1995 till 2005 when they were invaded. Hence, it was not possible for the Respondents to purchase the area in dispute. Regarding the fourth ground of appeal, Mr. Hussein argued that the learned Chairman agreed that the 2nd Respondent purchased coconut trees from Donge Chale and 3rd Respondent purchased coconut trees from Makame Ali without any proof. 3 With respect to the last ground of appeal, Mr. Hussein argued that the learned Chairman did not consider the opinion of assessors (p.48) and gave his decision contrary to the opinion of assessors and contrary to Section 37 of the Land Tribunal Act. He prayed that the Judgment of the Land Tribunal should be set aside and the Appellants be declared the owner of the disputed and. On the side of Respondents, Mr. Said argued the first, third and fourth grounds of appeal together. He submitted that all these grounds challenged the decision of the learned Chairman that the Respondents failed to prove ownership of the disputed land. He argued that it is the plaintiffs who were supposed to prove ownership of the land and not the Defendants. It is well established that he who alleges must prove the case. That is why the Judgment on p. 48 said the claim was not proved as the Appellants failed to prove their ownership. With respect to the fifth ground of appeal he agreed with the learned advocate for the Appellants that the Judgment did not record the opinion of the assessors. With respect to the second, ground of appeal, the learned advocate did not argue his ground but asked the Court to take notice of that ground. He prayed for the dismissal of the appeal. To start with the first, third and fourth grounds of appeal, it is clear that the appellants are claiming to have inherited the disputed plot of land from their parents and they have been occupying the same until there was a trespass in 2005. But the appellants do not have any document to prove their ownership and could not even say who was the original owner of that land and how they came to own that plot of land. Further, they did not bring any witness to prove that ownership, only appellant No. 2 and 6 testified out the ownership of that plot of land. On the other hand, the 1st and 2nd Respondents also claim to own the disputed land and they got it from their parents. But these two Respondents added another area which was owned by Denge Chale. They purchased it for Tsh. 70,000/= and later together with their plot they sold it to 4th Respondent similarly owned two coconut trees which he purchased from Mzee Makame Ali which he also sold to the 4th Respondents. But none of these Respondents has any document to show ownership of that land. What they produced in Court in the document showing that they sold their coconut trees to the 4th Respondents (Annex. Subta IB). The Respondents called four witnesses, DW5, DW6, DW7 and DW8 who all testified with regard to the sale done by Denge Chale to l iL and 2nd Respondents. Infact it is proved that they purchased a small plot from Denge Chale, but there is nothing to prove ownership to the other land which they claim and which they sold to the 4th Respondents. Fortunately, the learned Chairman had an opportunity to visit the locus in quo before hearing of the matter and on p.9 of the proceeding he noted "Mahakama baada ya kuangalia na kupata maelezo kutoka pande zote na baadhi ya wazee imebaini kuwa kinachobishaniwa hapo ni mpaka wa eneo ambalo limeuzwa." The learned Chairman went a head and frame three issues as follows: 1."Nani alikuwa mmiliki halali wa shamba hapo Ma..... (Tundagaa) wa mwanzo (awali) kabla ya Mdaiwa 4. 2. Nani mmiliki wa saa? 3. Nini suluhu ya hapo (2)" It is submitted that the learned Chairman failed to address these issues as framed and hence was not able to deal with the dispute in hand. With respect to the second ground of appeal, the learned advocate for appellant argued that the learned Chairman erred in using the limitation Decree as the adverse possession started in 2005 when the disputed land was invaded. Infact, the learned dismiss the claim of the appellants because the claim was time barred. He noted that the 4th Respondents was sold the disputed plot in 1995 and the case was filed in 2008 which is clearly 13 years after the purchase of the land hence according to section 3 (1) and paragraph 131 of Limitation Decree, Cap. 12 of Laws of Zanzibar, the claim was time barred. I agree with learned Chairman that the law is very clear on the issue of limitation that a suit filled after the period of limitation prescribed by the Schedule shall be dismissed although limitation has not been set up as a defence (S.3(1) of the Limitation Decree). But the guidance is also found in the Schedule regarding the time on which the period begins to run. Paragraph 131 which was used in disposing the matter reads: "131. For possession of immovable property when the plaintiff, while - the date of the in possession of the property has dispossession or has been dispossessed or has dis- discontinuance. Continued the possession." Under this paragraph the period of Limitation starts on the date of the dispossession or discontinuance. Now, the question is when were the appellants dispossessed of that. Appellants argued it was 2005 when the 4th Respondents 6 started the construction while the Respondents argued it was 1995 when they purchased the plot of land . It is submitted that possession here is actual and it has to be proved that the appellants were actually disposed in 1995 and they did not take any action. In this case there is no such proof, hence, the suit can not be said to be time barred just because there was a sale on a particular date when there is no dispossession. With respect to the fifth ground of appeal, both counsels for Appellants and Respondents agree that the learned Chairman did not record the finding of the assessors who sat with him, Mr. Moh'd Khamis and Mr. Nyona Haji. Though, there is no specific provision which require such recording, it is implied under section 37 of the Land Tribunal Act, which reads: "37. A ll decisions o f the tribunal, whether the final Judgment or interim matter shall be made by majority vote o f the three member o f the panel, the Chairman and two assessors. However, the Chairman shall have a deciding vote in a ll questions o f law ". This provision is very clear that it should be shown what the majority of vote was. This could only be achieved if their findings were recorded. Hence, the judgment which is appealed against violated section 37 of the land tribunal ACT. The important of assessors was emphasized by the Court of Appeal of Tanzania in Meneia Karafuu Hotel V. Evans Peter Civil Appeal no. 17 of 2009 (unrep.) where it held. 7 ",....... .......... We think that the assessors full involvement as explained above is an essential part o f the process, that its omission is fatal, and renders the trial a nullity. For our purpose in the Court o f Appeal, the informed and fu ll views o f the assessors become further necessary when we have to rely on what we m ight call the Segesela principle, that is in the event o f the trial judge disagreeing with the unanimous view o f his assessors we shall want to determine whether he was entitled to do so......... ", For the reason stated I hereby declare a trial a nullity and accordingly the proceedings and judgment are set aside. There will be a trial de novo before another Magistrate of the Land Tribunal without payment of fees. It is so ordered. (Sgd) ABDUL-HAKIM A. ISSA JUDGE 18/3/2015 COURT: The Judgment was delivered in Chambers on this 18th day of March 2015 in the presence of both Appellants and respondents and in the presence of Mr. Idi A. Hussein for Appellants and Mr. Omar Said for Respondent. (Sgd) ABDUL-HAKIM A. ISSA JUDGE 18/3/2015 COURT: The right of appeal is explained. (Sgd) ABDUL-HAKIM A. ISSA JUDGE 18/3/2015 I certify that this copy is true from the Original. HIGH COURT - ZANZIBAR. /HALLY/ 9