lepi juma mcheni vs wadhamini wa kanisa la kiinjili la kilutheri tanzania kkkt dayosisi ya kusini mashariki 2023 tzhc 22909 31 october 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA LAND APPEAL NO. 23 OF 2023 (Originating from Kilwa District Land and. Housing Tribunal in Land Application No.2 of 2022) LEPI JUMA MCH'ENI ................................ .......< ...APPELLANT VERSUS WADHAMINI WA KANISA LA KIINJILI LA KILUTHERI TANZANIA (KKKT) DAYOSISI YA KUSINI MASHARIKI ................RESPONDENT JUDGMENT 28/91& 31/10/2023 LALTAIKA, J. The appellant herein, LEPI JUMA MCHENI/ was sued before-the District Land and Housing Tribunal for Kilwa at Masoko by the respondent herein, WADHAMINI WA KANISA LA KIINJILI LA KILUTHERI TANZANIA (KKKT) DAYOSISI YA KUSINI MASHARIKI. The respondent claimed that the appellant had trespassed on the suit land Page 1 of 11 situated at Plot No.572 Block N, Mkumilu area at Kilwa Masoko, covering 6.5 acres or 35,259 square meters. However, before the re-survey was done, the suit land had covered Plot No. 13-45 and 221-248 at Block N, Mkumilu Kilwa Masoko. It is alleged that in 2019, the appellant invaded a part of the suit land and claimed it to belong to her. Furthermore, between 2020 and 2021, the appellant started cultivating the suit land, measuring pieces of land, and collecting sand for construction activities. It is further alleged that the respondent has been in occupation of the suit land: since 20/10/1999 and was granted a letter of offer by the Kilwa District Council. The respondent claims to have been in occupation of the suit land since 1999 until the appellant encroached upon it without any interruption, A brief recap of the matter is imperative and Can be sourced from what the parties told the Tribunal during the hearing, along with their pleadings. It is asserted that a community of KKKT believers in Kilwa asked for a place of worship before the District Executive Director of Kilwa in 1994 (Exhibit Pl). The letter dated 20/5/1994 was prepared by the Diocese of Southern- Njombe. On 3/8/1998, one of the leaders of the respondent wrote a reminder letter regarding the request made on 20/5/1994. Additionally, on 26/8/1998, the Chairman of the Land Allocation Committee replied to the reminder letter (Exhibit P3). It appears that oh 3/9/1999, the respondent received a letter from the Land Allocation Committee of Kilwa stating that their request was accepted, and they were allocated Plot No. 13-45 and 221-248, covering 61 plots of Page 2 of 11 land. The respondent allegedly paid for the land rent of both plots and was given the map of the suit land. On the other hand, the appellant told the Tribunal that the respondent found her on the suit land. She claimed that the suit land was previously used by her mother and grandparents. However, in 1978, her mother moved to Kilwa with her parents. In 1997, her grandparents purchased a plot of land for residential purposes, while part of the suit land was used as a farm for crop production. In 2002, one of the Reverends of the respondent found the appellant cultivating on the suit land. The appellant was told to stop the cultivation: because the land had been given to the church by the District Council of Kilwa. The a p pe 11 a nt was a I so advi sed by the Reve re nd to; fol I ow; up on compensation at the District Council of Kilwa. The appellant made follow-up visits to the District Executive Director of Kilwa, Mr. Mapunda, until 2013 because he did not stay in the office. From there, the appellant was taken to the land office and was ordered to write a letter to the respondent for. compensation. However, that was not done until 2017 when the land valuation was conducted (Exh. DI). Additionally, the appellant took various measures to ensure her rights were protected. She submitted her problem to the District Executive Director of Kilwa when she wrote a letter to the appellant, in which he admitted to receiving the letter dated 25/10/2017. In that letter, the DED of Kilwa informed the appellant that the council had no money for compensating her, although he assured her that efforts were being made, and if they obtained Page 3 of 11 the necessary funds, they would honor her claim. Furthermore, the appellant reported the matter to the Regional Commissioners. On 13/9/2021, following the complaint to the Regional Commissioner, the Regional Administrative Secretary (RAS) of Lindt Region issued a letter to the DED of Kiiwa. The letter indicated that on 17/06/2021, when the Regional Commissioner made an introductory visit and part of hearing people’s complaints, she received a complaint from the appellant over the suit land allocated to the respondent: by the District Council of Kilwa. The Regional Commissioner obtained detailed information and directed the District Executive Director of Kilwa to hand over the part of the suit land claimed by the appellant. The letter also reminded the DED of what had already been decided. During the hearing of the suit at the Tribunal, the respondent called four (4) witnesses and-presented seven (7) exhibits. The witnesses were Peter Zakhayo Jamvi (PW1), Marko Reynod Mlinga (PW2), Mussa Hamis Liviga (PW3), and: Catherine Walter Mwetha (PW4). On the other hand, the appellant called three (3) witnesses and tendered five (5) exhibits. After the closure of the case, the Tribunal was satisfied that the respondent had more substantial evidence than the appellant. Thus, it declared the respondent the lawful .owner of the suit land and the appellant the trespasser. Dissatisfied, the appellant lodged the present appeal based on ten grounds, which I will reproduce when deliberating on them. Page 4 of 11 When the matter came for hearing, the parties consented to dispose of the matter by written submissions. On the part of the appellant, it was submitted that the learned Chairman breached Article 2, clause 24(2)-of the Constitution of the United Republic of Tanzania of 1977, which prohibits disposition of land due compensation. The appellant went further and contended that the proceeding, judgment, and decree are a nullity for the reason that the honorable chairperson dissented from clause 1.2.3 of encumbrances for the compensation as assessed according to the LandAct No. 4 of 1999 section 3(b), recognizing long-standing occupation and section 3(f) that full, fair, and prompt compensation is paid to any person whose right or long-standing occupation or customary use of the land is revoked or acquired. She insisted that in assessing the compensation value, the following had been considered in section 3(g) (i-vi): market value of real property, transport allowance, loss of accommodation, cost of acquiring or getting that plot, and other costs, loss, or capital incurred during the development of the land. Moreover, the appellant submitted that the learned Chairman did not give reasons for her departure from what the assessors opined. The appellant contended further that the learned Chairman erred constitutionally, in law, and fact by merely, believing and trusting the oral evidence of PW3, who had not tendered a master plan survey, any lawful registered survey done before 2020, or any legal document evidencing his verbal testimony that such land was planned or surveyed in 1975-1987. Page 5 of 11 Furthermore, the appellant asserted, PW3 never tendered any document that evidenced compensation effected to the appellant by either the DED of Kilwa Masoko or the respondent. In addition, the appellant submitted that the learned Chairman failed to consider that Land Application No.2 of 2022 was lodged after the Regional Commissioner had ordered the DED of Kilwa District Council to hand over 2.5 acres to the appellant. Submitting on the issue of the survey conducted between 1975-1987, and all payments of land rent before 2020, the appellant asserted that they were tricky payments of which made the appellant'unaware while the respondent and Kilwa District Council had knowledge that the appellant was not compensated over the suit land. In reply, the respondent objected to the way the appellant has made her submission. However, the respondent submitted on the first ground that the application at the trial Tribunal was very specific and precise, as seen at paragraph 3 of the same where the respondent precisely stated that the suit land is located at Kitongoji cha Mnazi Mmoja, Mtaa cha Mkumilu, Kata ya Masoko, Halmashauri ya Wilaya ya Kilwa, Plot 572, Block N Mkumilu Kilwa Masoko which before had Plots No. 13, 45, 221 and 248 Block N, Mkumilu Kilwa Masoko with 35, 259 square meters. The respondent submitted further that the evidence adduced by both parties was addressing the suit land as described by the appellant, and a site Visit was conducted and found the suit land at the same place as described by the respondent. The respondent contended that the appellant neither in her written statement of defense nor in her testimony contested the location Page 6 of 11 of the suit land by stating another location apart from what the respondent stated, which is proved by the appellant in her purported submission where paragraph 1 describes the location of the suit land by mentioning the same location as described by the respondent at page 3 of the application. Submitting on the second ground, the respondent contended that the appellant is trying to invite this court to believe that the respondent is not a registered trustee; however, she departed from what she alleged in her memorandum of appeal and introduced a new fact which challenges the capacity of the Principal Officer of the respondent, Mr. Peter Za kayo Jam bi. The respondent went on to clarify that her Principal Officer was appointed pursuant to Order XXVII Rule 1 of the Civil Procedure Code [Cap. 33 R.E 2019]. The respondent submitted-that it is an elementary principle of law that he who alleges must prove, as articulated under section 110 of the Evidence Act, The respondent insisted that the respondent is the trustee of Kanisa la Kiinjili la Kilutheri Tanzania (KKKT) Dayosisi ya Kusini Mashariki incorporated under the Trustees Incorporation Act, Cap. 318, and mandated with powers to sue and be sued under section 8 of the same law. In addition, the .respondent submitted that the respondent is the custodian of the properties of the Dayosis ya Kusini Mashariki and mandated with the above power of suing or be sued in her registered name. The meeting of the Board of Trustees was convened following the act of the appellant, argued the respondent, and it was resolved to institute land Case No.2 of 2022. Page 7 of 11 , Regarding the third ground, the respondent contended that the appellant faulted the Tribunal for not recording the witnesses during the site visit. The respondent submitted that the ground is also unfounded since it is not supported by the records of the Tribunal. Moving on to the fourth ground, the respondent emphasized that the learned Chairman played the role of an impartial umpire and properly exercised justice. It is on record, asserted the respondent, that both parties testified at the locus the locus in quo, and the trial tribunal properly recorded the proceedings to that effect. On the fifth ground of appeal, the respondent submitted that the appellant failed to clarify what exactly she challenges and how the same has occasioned injustice. The respondent submitted that the failure to clarify her argument makes it vague, ambiguous, and uneasy to understand what exactly she challenges. Apart from that, the respondent submitted on the sixth, seventh, eighth, and ninth grounds of appeal which complain about the issue of the survey of the suit land. The respondent submitted that the suit land is under the jurisdiction of Kilwa District Council, thus, officers from the same appeared during trial and verified all survey documents tendered by the respondent. Thus, the respondent contended that the complaint by the appellant has no merit because it is very unbecoming to disregard the evidence from the authority with the mandate to conduct the survey and believe the mere allegation of the appellant. Finally, the respondent Page 8 of 11 submitted that the evidence adduced by the office of the Council was credible, heavier, and more probable than that of the appellant. On the tenth ground of appeal on nonjoinder of Kilwa District Council as a necessary party to the suit, the respondent submitted that at trial, the appellant never raised a cause of action against Kilwa District Council as the necessary party. In addition, the respondent submitted that nowhere did the appellant show that she was allocated land with Kilwa District Council; instead, the evidence on record shows that the appellant claim's to have acquired the suit land from her mother, who used to cultivate it since 1978. The respondent contended further that owing to the fact that there is no element of involvement of Kilwa District Council in the cause of action and there are no claims from either party aqainst her, it is not proper to join her in the suit for lack of cause of action against her. To conclude the submission, the respondent submitted that section 3A of the Civil Procedure Code requires courts to have regard to the overriding objective in dispensing justice, since.both oral and documentary evidence in records favor the respondent as the lawful owner of the suit land and considering that the respondent is a religious institute that preaches peace, love, honesty, and justice, it cannot deliberately and fraudulently deprive the rights of the appellant, as doing so is against the will of God according to the faith of the respondent. To this end, the respondent prayed this court to declare the respondent as the lawful owner, just as the trial tribunal did, for the purpose of dispensing justice expeditiously and without being tied up with legal technicalities. She asked this court to dismiss the appeal with costs and uphold the decision of the trial tribunal. Page 9 of 11 I have dispassionately considered the tribunal records, grounds of appeal, and rival submissions by both parties. l am inclined to decide the merit or otherwise of the appeal. At the outset, it should be noted that what the appellant claimed at Kilwa District Council and at the Office of the Regional Commissioner of Li nd! was the unlawful acquisition of her land by the Kilwa District Council and the respondent covering 2.5 acres which she had allegedly inherited from her parents. However, the respondent instituted a claim over the suit land against the appellant on the basis that the same, was allocated by Kilwa District Council upon her application. The claim bv the respondent was centered on trespass. In light of this quagmire, joining Kilwa District Council is inevitable due to the fact that it is the institution charged with allocation of land in the district. It is my reasoned opinion that that justice will only be served a nd seen - tb be done, upon Ki I wa D istr ict Cou n ci I is beco m i n g a pa rty to the suit. The learned Chairman should have recognized the significance of Kilwa District. Council in the process of settling the dispute, as demonstrated by exhibits D3, D4, and D5. Premised on the above, I have no hesitation in making a finding that an order for a retrial is imperative and inevitable for achieving the settlement of the dispute between the parties. The circumstances outlined hereinabove necessitate the issuance of that order, as articulated in the renowned case ofFATEH ALI MAN JI V. REPUBLIC [1966] E. A. 343, which states that a retrial may be ordered only where the original trial was illegal or defective, and not for purposes of filling gaps in evidence. Page 10 of 11 Sard and done, I hereby nullify the proceedings of the Tribunal and quash and set aside the orders therefrom. The original file should be remitted back to the trial Tribunal for compliance of the order and directives of this court. Furthermore, the tribunal will be required to expedite the hearing process soon after receiving the file. 31st day of October 2023 in the presence of personal representatives of the Page 11 of 11