Kiza Shabani v Sanga Shabani Land Appeal No

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND APPEAL NO. 61 OF 2023 KIZA SHABANI .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF

VERSUS SANGA SHABANI .............................. RESPONDENT / DEFENDANT

JUDGMENT P. R. KAHYOZA, J, Before the District Land and Housing Tribunal for Kigoma, sitting at Kigoma, herein the Trial Tribunal, the Appellant Kiza Shabani, sued the four Respondents herein, namely, Sanga Shabani, Pili Hamisi, Ayubu Moshi, Akilimali Rashidi and Miraji Jafari, the first to fifth respondents respectively. The matter was in respect of a parcel of land, which according to the record of the trial tribunal, is unsurveyed land, situated at Machinjion within Kigoma/Ujiji Municipality, and its value is estimated at Tshs.9,500,000/-, say nine million and five thousand shillings only. After a full trial, the trial tribunal found and held in favour of the first Respondent. In other words, the trial tribunal entered judgement in favour of the first Respondent, thus dismissing the Appellant’s claim. The Appellant was aggrieved by the decision of the trial tribunal. He has thus preferred an appeal to this court. The Appellant is equipped with nine grounds of appeal which are reproduced here below: 1. That, the chairperson erred in law and facts as she distorted the proceedings of the law evidence.

2. That, the chairperson erred in law and facts as she prevented the power of Attorney of PILI HAMIS (Second respondent) AZIZA SAID JUMA not give the statement in deep before the tribunal in claiming that, written statement of defense of PILI HAMISI already supported the Appellant’s Application.

3. That, the chairperson erred in law and fact to give the winnings to the respondents while she knowing that when the case/Application was audible the 1,3,4 and 5 respondent escaped the Tribunal without any reporting.

4. That, the chairperson erred in law and fact to legalize the document of sells agreement in which (I) is the forgery (ii) is the photocopy (iii) no one gave this photocopy as Exponential before the tribunal (v) and the first respondent was not before the tribunal in order of cross – examination as it is a customance of the law of evidence.

5. That, the chairperson erred in law and fact to compel by designing the Appearance such like, there was the land dispute between the Appellant versus second Respondent, the matter is not true, but there was no any Page. 1 dispute between them.

6. That, the chairperson erred in law and facts for claiming that, there is no confirmation that, the Appellant’s mother had been vouchsafed the land in dispute while, PILI HAMIS the second Respondent confess that all the appellant claiming in the Application is true, now, what confirmation of the chairperson of the tribunal wants?

7. That, the chairperson erred in law and fact as she refused the Application of the Appellant to visit the land in dispute in order to inspect the truth of where/which the land sold to the first Respondent and where the Appellant claiming on her land 8. That, the chairperson erred in law and fact for not taking into account that, since the Appellant inheriting the land in dispute in 1980, the appellant used the land in dispute 36 years without any dispute 9. That, the chairperson erred in law and fact to fiches the fact for saying that, all respondents did not bring written statements pf defense the matter which is not true, the truths is that, the second respondent PILI HAMISI filed written statement of defense to the tribunal and the appellant was saved. (The District Land and Housing tribunal Judgment, Decree are attached together). I wish to point out from the outset that at the hearing of this appeal, only the Appellant and the second Respondent were present. The rest were absent, notwithstanding that they were duly served. As such, the appeal against them proceeded in their absence. It is also worth noting that while the Appellant submitted in respect of each and every ground of appeal, the second Respondent did not make any submissions at all. She only told the court that she was supporting the Appellant’s appeal. With that said, I shall now proceed to consider the

grounds of appeal as presented by the Appellant. With regard to the first ground, the Appellant did not argue it. He immediately abandoned it when hearing commenced. I think that was a proper decision, because as it can be seen, ground one is almost unintelligible. With regard to ground two, the complaint is that the learned trial Chairman erred when he refused to allow the second Respondent to testify in relation to the matter that was before him. I think I must hasten to say that this complaint has no justification at all. I have had an opportunity of carefully going through the entire record of the trial tribunal. There is no where it is indicated that the second Respondent was denied the chance to testify. The record is clear and straight on this. It shows that when the second Respondent was called upon to make her defence, she told the trial tribunal that she was in full support of the Applicant’s case. She thus urged the tribunal that the Applicant’s application be granted. This is reflected at page 22 of the printed proceedings of the trial tribunal. With such explanation in place, it is apparent that the complaint in this ground is baseless. As such it is dismissed. In the third ground, the Appellant’s complaint is that it was wrong for the trial tribunal to enter judgement in favour of the Respondent (first Respondent) who never appeared in court. This complaint is

supported by the record of the trial tribunal. The record clearly shows that out of the five respondents, only the second respondent was always appearing in court. The rest never entered appearance. It is however important to note that the first respondent had a representation. He was represented by Mr. Sadiki Aliki, advocate. However, even the said advocate was most of the time absent. It is this constant absence that prompted Page. 2 the Chairman to order the matter to proceed in the absence of the first, third, fourth and fifth Respondents. This is reflected at page twenty-two (22) of the proceedings. Of course, I am acutely aware that the fact that one party to the case is absent does not at all give the other party who is present, an automatic chance to win the case. One must always prove his case in order to obtain judgement in his favour. In Standard Chartered Bank (T) Ltd vs Samwel Nyalla Nghuni, (CAT), Civil Appeal No. 45 of 2020, at page 11, the Court made the following observations: “We also wish to add, for the benefit of the legal fraternity that, regardless of whether or not the matter proceeded ex parte, a plaintiff in a civil case is not relieved or absolved of the duty to prove the case against the defendant on the required standard.” So, the issue here is not whether the trial tribunal decided in favour of the first Respondent who was absent. Radher, what is

to be considered is whether there were justifiable reasons for so deciding. As it is, and as it can be gathered from the record of the trial tribunal, the first Respondent filed his Written statement of defence. However, he never appeared throughout the hearing. His counsel only appeared twice, and on those two occasions hearing did not proceed. Probably, this is where the Appellant’s concern comes in. The first Respondent never testified in support of his case. Even the alleged sale agreement was never tendered in evidence. It remained a mere document annexed to the first respondent’s written statement of defence, but it was never admitted in evidence. It is therefore strange, as the Appellant argues, to see that the trial tribunal entered judgement in favour of the second respondent on the strength of the document that was never tendered and admitted in evidence. There was no justification on the part of the trial chairman to do so. This means, ground three is also bound to fail. This discussion, takes me straight to the complaint in the fourth ground of appeal. Here, the Appellant’s complaint is that the learned chairman erred for relying on the sale agreement which according to him was a forged document, a photocopy, and above all that the first Respondent was not available for cross examination on that document. I think there is a lot of justification in this complaint. As

I said earlier, this document was never tendered and admitted in evidence. As such the trial tribunal has had no occasion of examining it and subjecting it to evidentiary tests with the aim of determining its legality, authenticity and genuineness. Moreover, and as rightly submitted by the Appellant, the first Respondent was never available for cross examination in relation to this document. It is therefore my settled view that it was a serious misdirection on the part of the trial chairman to rely and hinge the tribunal’s decision on this document as the same was of no legal effect. Case law on this area speaks volumes. In Crescent Impex (T) Limited vs Mtibwa Sugar Estates Limited (Civil Appeal No.455 of 2020) [2023] TZCA 17501 (16 August 2023), reported at Tanzlii, the Court of Appeal re- affirmed this position when it stated; “The law is very clear on the weight of annextures which were not tendered and received as exhibits during trial; that they should not be treated as evidence”. Page. 3 This position was also enunciated by the same court in the case of Shemsa Khalfa and Others vs Suleiman Hamed Abdalla, Civil Appeal N0. 82 of 2012 (Unreported). In this case the Court stated: “At this juncture, we think our main task is to examine whether it was proper for the trial court and other subsequent courts in appeals to rely upon, in their judgments, the said document which was

not tendered and admitted in court. We out-rightly are of the considered opinion that, it was improper and substantial error for the High Court and all other courts below in this case to have relied on a document which was neither tendered nor admitted in court as exhibit. We hold that this led to a grave miscarriage of justice."[Emphasis supplied]. It is therefore apparent from the above authorities that the decision of the trial tribunal cannot stand because it is hinged on a sale agreement that was never tendered and admitted in evidence. In other words, the evidence on record does not support at all the decision of the trial tribunal in any respect. The decision is bound to be reversed on this aspect. I am acutely aware, however, that the law enjoins the courts not to reverse the decisions of the DLHT or Ward Tribunals because of some errors and irregularity that happened during trial unless such errors and irregularities have occasioned failure of justice. This is provided under Section 45 of the COURTS (LAND DISPUTES SETTLEMENTS) ACT, Cap. 216, R.E.

2019. The law provides thus: 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, omission or irregularity or improper admission or rejection of evidence has in fact occasioned a failure of justice. In Mohamed A. Issa vs John Machela (Civil Appeal No. 55 of 2013) [2013] TZCA 490 (27 September 2013) the Court of Appeal had the occasion of discussing the above provision, and it had this to say: In this case, we are of the firm view that determining the rights of the parties on the basis of documents which were not admitted in evidence during the course of the trial was fatal to the trial and occasioned a failure of justice. We think we need not overemphasize what we take to be trite law that the judgment of any Court or quasi-judicial tribunal must be grounded on evidence properly adduced during the trial, otherwise it is not a decision at all. The purported decision becomes a nullity. Therefore, the appellate Tribunal and/or the High Court on appeal could not uphold what was a nullity from the beginning. From the above holding of the Court, it is apparent that the provision of the law cited

above does not in any way entertain procedures that might at the end of the day lead to miscarriage of justice. It therefore follows from the above discussion that the fourth ground is found to be with merit. This means the trial tribunal’s holding that the suit land belongs to the first Respondent is with respect unfounded as it is not supported by the evidence on record. This is because the sale agreement between the first and second respondents is of no evidential value as the same was not tendered in evidence. Page. 4 Just by way of adding, I wish to make one vital observation before I conclude. This relates to the conclusion made by the trial chairman in the judgement. At page five of the judgement, the chairman concluded that initially the suit land belonged to one Fedha Maruzuku, now deceased. It is further stated at that same page that such ownership was proved by the Appellant. But at the following page of the judgment, that is at page six, the same chairman concludes that the suit land did not belong to the Applicant because he did not lead evidence to show that he was allocated the suit land by his late mother, or rather that he inherited the same from his late mother. I think either deliberately or out of inadvertence, the trial chairman missed something out of the Appellant’s evidence. In his evidence, the Appellant told the trial tribunal that initially the suit

land belonged to his grandmother, Feza Maruzuku. But upon her death, the ownership of the land passed to the second respondent and the Appellant’s mother by way of inheritance. And later the ownership of the suit land passed to the Applicant after the death of his mother. In other words, he inherited the same. So, if the chairman chose to believe the Appellant’s story regarding the ownership of the suit land, he ought to believe it in full. It would be strange to believe it up to the extent of Feza Maruzuku but discard it as regards the Appellant. From the foregoing discussion, I am of a settled view that the Appellant successfully led evidence to show that the suit land belongs to him. This stance is also supported by the second Respondent who supported the Appellant’s claim that the suit land belongs to him (Appellant). Now, with that position in place, I do not think I need to test the rest of the grounds of appeal. Doing so would only be for academic purpose. Finding on ground four suffices to dispose of the entire appeal. Just in the upshot and for all the foregoing reasons, I find and hold that the appeal has merit. It is accordingly allowed. The decision of the trial tribunal is reversed and the Appellant is declared the lawful owner of the suit land. The Appellant will have his costs. Dated at KIGOMA ZONE this 25th of October 2024. P. R. KAHYOZA, J

JUDGE OF THE HIGH COURT Page. 5