LAND APPEAL NO

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 13509 OF 2024 CASE REFERENCE NO.202406071000013509 (Arising from Application No. 227 of 2022 in the District Land and Hosusing Tribunal of Hala at Hala) LUCAS STEVEN KIDIWA........................................................... APPELLANT

VERSUS DAUDI MWITA GAMATA............................................................ 1st RESPONDENT KASTORI KIMOLO...................................................................... 2nd RESPONDENT

JUDGMENT 12/09/2024 & 30/09/2024 GWAE, J This appeal arises from the decision of the District Land and Housing Tribunal for Hala at Ilala through Application No. 227 of 2022 in which the appellant's dispute was dismissed with costs. i refunded, thereby cannot be the rightful owner of the disputed land.

2. That, the trial Chairman erred in law and facts by holding that the Appellant was not a lawful owner despite ample evidence to prove ownership.

3. That, the trial chairman erred in law and facts when he misdirecting himself by concluding that exhibits Pl was the forged document and decided the matter in favour of the Respondents sufficient evidence in record and without justification thereof.

4. The trial chairman erred in law and facts by failure to properly analyse the evidence and ended the matter in favour of the Respondents.

5. The trial chairman erred in law and facts in deciding to conclude that the appellant breached the contract and had already been paid substantial amount of money without any supporting evidence showing how the appellant received those payments. Basing on the above aforementioned grounds of appeal, the appellant is praying for the following orders;- the appeal be allowed and the decision of the trial Tribunal be quashed and set aside and declaration that, the Appellant is the owner of the disputed property and costs of this appeal to be provided for by the respondents. 3

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 13509 OF 2024 CASE REFERENCE NO. 202406071000013509 (Arising from Application No. 227 of 2022 in the District Land and Hosusing Tribunal of Hala at Hala) LUCAS STEVEN KIDIWA..... ..................................................... APPELLANT

VERSUS DAUDI MWITA GAMATA........................................................... 1st RESPONDENT KASTORI KIMOLO..................................................................... 2nd RESPONDENT

JUDGMENT 12/09/2024 & 30/09/2024 GWAE, J This appeal arises from the decision of the District Land and Housing Tribunal for Hala at Hala through Application No. 227 of 2022 in which the appellant's dispute was dismissed with costs. i Hearing of the appeal proceeded orally. Ms. Halima Semanda, learned advocate, represented the appellant while the first respondents appeared in person. Ms. Halima consolidated the first, second fourth and fifth ground of appeal on the reason that, they all bit on the analysis of evidence by the trial tribunal and argued the second ground separately. Starting with the 1st, 2nd, 4th and 5th grounds that, the trial court erred in law and fact by holding that, the appellant was not lawful owner of the disputed land on the wrong perception that the appellant breached the sale agreement between the 1st respondent and him. Ms. Halima also submitted that, the first respondent stated that he was detained but there was no evidence to that effect. The appellant's advocate further argued that, the evidence adduced by the first respondent was not credible and contradictory as he stated that, he refunded Tshs. 300,000/=. Ms. Halima added that, since the appellant bought the suit land in 2012 from the first respondent. He was therefore, not justified to re-sell it to the second respondent as the sale agreement was not terminated by the parties. It was her

submission that the appellant proved his case to the required standards in civil cases, taking into the 4 account that, the respondents failed to prove that, they are lawful owners of the suit land. Bolstering her submission her submission, Ms. Halima urged the Court to refer to the case of Ernest vs. Sebastian and two Others, Civil Appeal No. 66 of 2019 (unreported-CAT) and section 110 (1) & (2) of Tanzania Evidence Act, Cap 6, R.E, 2019. Regarding the third ground of appeal, she submitted that, it was wrong, in her view, for the chairperson to hold that, the size of suit land was forged as depicted in the sale agreement, because during trial, forgery on the sale of agreement was not contentious between the parties. She stated that, the tribunal's chairperson erred in law to base its decision on the issue of alleged forgery on the size of the land in dispute raised by the tribunal suo moto without involving the parties as required under Article 13 (6) (a) of the LIRTC, 1977. To buttress her argument, she referred to the case of Abbas and another vs. Abdul S. Haji Mohamed, Civil Application No. 133 of 2002 (unreported-CA) and the case of Kumwandumi Ndemfoo Ndossi Mtei Bus Services Limited, Civil Appeal No. 257 of 2015 (unreported-CAT). Eventually, Ms. Halima prayed for the appeal be allowed 5 with costs and an order quashing and setting aside the decision of the DLHT at Hala as

well as declaration that the appellant is the lawful owner of the suit land. In his response to the appellants submission, the first respondent admittedly argued that, he sold the suit plot measuring 20 x 20 paces to the appellant for Tshs. 1,000,000/=. However, subsequent to the sale of the suit land, the appellant went back to him alleging that, he (the 1st respondent) sold him the land, which does not belong to him. He stated that the appellant reported to police at Stakishari where he was incarcerated. Eventually, he refunded the sale price except Tshs. 200,000/=, which he is still indebted to date. The 1st respondent further argued that, the decision of the Tribunal is well founded as the appellant's mission is to deprive him. More so, the evidence adduced by him was credible and satisfactory as he tendered all necessary documents corroborative evidence of his witnesses including visitation of the locus in quo. He therefore sought an order of the dismissing this appeal with costs. 6 On the part of the second respondent, he admittedly submitted that, he purchased the parcel of land measuring 20 x 20, which is distinct from the one he purchased form the first respondent. He added that, he was not heard as during trial before the Tribunal he was attending his wife who sick by then. In rejoinder submission, Ms. Halima reiterated her submission in chief. I have carefully

considered the submissions made by the parties and conscientiously read the records of the Tribunal. The issue for determination is whether this appeal is allowable or not. In determining the first, second, fourth and fifth ground, I should first consider the issues raised at the trial Tribunal, which I find pertinent to reproduce as hereunder:- 1. Kama mdai ni mmiliki wa kiwanja bishaniwa 2. Kama mdaiwa Na.2 amevamia kiwanja bishaniwa au aliuziwa kihalali kiwanja bishaniwa na mdaiwa Na.l 3. Nafuu wadaawa wanazostahili" 7 From the above framed issues, it is apparent that, the parties were in dispute in respect of the ownership of the suit property. The issue of ownership was split into three sub-issues:- One, whether the appellant is the lawful owner of the suit property. Two, whether the second respondent trespassed the disputed land or whether the 2nd respondent lawfully purchased the suit property from the 1st respondent and three on reliefs the parties are entitled to. Since the appellant's main complaints are on the Tribunal's analysis of the evidence adduced by the parties' witnesses during hearing of the dispute, this court as the first appellant court, unlike the second appellate court has therefore the duty to step into the shoes of the Tribunal and do the needful. The Court of Appeal of Tanzania has consistently stressed this position, for example in the case of

Philipo Joseph Lukonde vs. Faraji Ally Saidi (Civil Appeal No. 74 of 2019) [2020] TZCA 1779 (21 September 2020), where it was held that; " This being a first appeal, this Court has a duty to subject the entire evidence on record to a fresh re-evaluation and come to its own conclusions." 8 It was the submission by the counsel for the appellant that, the first respondent was required to prove before the trial Tribunal that he was detained. However, after considering the issues raised, and upon taking into consideration that this is the land matter, I find that, what the appellant was required to prove is, his ownership of the suit property and disproof of the allegation that, the second respondent trespassed in the suit property. As entailed by the above findings, it is my formed view that, no vital evidence was required before the Tribunal to prove detention of the 1st respondent at Sakishari Police Station. Above all the subsequent agreement between the appellant and 1st respondent was reduced into writing and made immediately are depicted in the exhibit DI. On whether the appellant breached the contract, I have gone through the records of the trial Tribunal and found that, the first respondent tendered before the Tribunal the copy of the sale agreement entered between the appellant and him for the refund of the purchase price of the suit property. The agreement shows that, on

8r February 2012, the 1st respondent refunded the appellant Tshs.300, 000/=, on 5th March 2012, he refunded Tshs.300, 000/= to the appellant and on 2nd April 2024, he refunded him Tshs.200, 000/=. 9 In my view it is satisfactorily established that, the purchase price was Tshs,l,000,000/=and that subsequent to the sale agreement and payment of the purchase price thereof, the appellant became suspicious of the of the piece of land he bought. It is also clear that, Tshs.200, 000/= remained unpaid to date as per evidence adduced by DWl-to DW4 whose evidence is corroborated by documentary evidence (parties' agreement rescinding the original sale agreement (Exhibit DI). Examining further the evidence on record, I do not see any reason as to why the first respondent could not state that, he refunded the purchase sum to the appellant at once, if at all, he intended to deceive him after he had received the money. More so, exhibit DI bears the seal of the so-called mjumbe was Shina Na. 12 As was the case in the sale agreement (Exhibit Pl) and carefully examining Exhibit D2 it sounds to me clearly that, the first respondent was still indebted at the tune of Tshs. 200, 000/=. With due respect to the appellant's counsel, I am not convinced if the appellant met the standard of proof as provided under section 110 (1) (2) TEA, which places burden of proof to the person who desires a court to

give judgment in his or her favour. I hold that view simply because the appellant's witnesses (DW2 and DW4 merely testified that, they witnessed the sale io agreement but when probed as their knowledge of the termination of the same, they clearly stated to have not aware of the same. Therefore, I am satisfied that, the agreement was rescinded due to consistent and reliable oral and documentary evidence. Regarding the third ground, the appellant is criticizing the Tribunal's Chairperson basing its decision on the issue of alleged forgery on the size of the land in dispute suo motto without involving the parties as required under Article 13(6) of the Constitution of the United Republic of Tanzania, 1977 as amended from time to time. I have gone through the proceedings of the trial Tribunal to see whether forgery on the sale agreement was contentious between the parties. The appellant in his testimony established that, he bought from the first respondent the suit land measured 40x20 paces. On the other hand, it was the testimony of the first respondent that, he sold to the appellant the suit property measured 20x20 paces. That being the testimony of both parties, it would plainly be noted that, although not being among the issues raised, the parties were at issue as to what size of the land was sold to the appellant and hence, whether the respondent sold to the appellant the land

measured at 40x20 paces. li It is a well-established practice that a decision of the court should be based on the issues, which are framed by the court and agreed by the parties. However, failure to frame issues is a procedural irregularity, which is fatal only when it has occasioned injustice or affect the merits of the judgment. In the case of Norman vs. Overseas Motor Transport (Tanzania) Limited (1959) E. A 131, the East African Court of Appeal held that:- though no issue is framed on the fact, the parties adduce evidence on the fact and discuss it before the court, and the court decides the point, as if there was an issue framed on it, the decision will not be set aside on appeal on the ground merely that no issue was framed...In the instant case it would seem that failure of the court to frame issues was to some extent the fault of counsel on both sides. Nevertheless, the failure to frame the issues is an irregularity and the question is whether, notwithstanding the failure to frame the issues, the parties at the trial knew what the real question between them was, that the evidence on the question had been taken and the court duly considered it." Guided by the above authority and the evidence on record, I hold the different stance from that of the appellant's counsel. I am of that view for an obvious reason that, it is plainly clear that, though the issue of

forgery 12 was not raised at the trial, but since the appellant claimed to have bought the suit land measures 40x20 paces and gave evidence to support his claim and the first respondent rebutted such assertion. Luckily enough, the first respondent even paraded the witnesses to testify on his favour. Therefore, the trial Tribunal was obliged to determine the issue as it rightly did, on whether the first respondent sold to the appellant the land measured 40 x 20 or 20 x 20 paces. From the above observations, I find that, the issue of forgery of the size of the suit property, the trial Tribunal accorded the parties the right to be heard as required under Article 13 (6) of the Constitution of the United Republic of Tanzania, 1977. That said and done, I find the appeal lacks merit and I proceed to dismiss it with costs. dated and delivered at dar es salaam this 30th September 2024 M. R^GVVAE JO15GE Court: Judgment delivered in the presence of Ms. Halima Semanada, the learned advocate for the appellant who is present and that of both respondents who appeared in person M. R. GWAE

JUDGE 30/09/2024