Land Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 22700 OF 2024 (Originating from the decision and order of the District Land and Housing Tribunal for liaia at Kivukoni in Land Application No. 180 of2022 before Hon. A.R Kirumbi (Chairman) MAKA NIKUBUKA SHIMWELA.................................................. APPELLANT VERSUS DAVID GEORGE SHIJA................................................................................ 1stRESPONDE WILE KITASUKE.......................................................................................... 2ndRESPONDE REHEMA SALUM............................................................................................. 3rdRESPONDE WITTNESSREGUKOBA CHACHA..................................................................... 4thRESPONDE MERRY JACOB KYANDO................................................................................. 5thRESPONDE DENIS JULIUS................................................................................................. 6thRESPONDE LEMIDIUS ALISTIDIUS................................................................................. 7thRESPONDE JUDGEMENT 07/11/2024 & 16/12/2024 N.E, MANDIA, J The Appellant being aggrieved by the judgment and decree of the District Land and Housing Tribunal for Ilala District at i Kivukoni in Land Application No. 180 of 2022 dated 29th July 2024 hereby appeal to this Court on the following grounds, namely: 1. The Honourable Chairman of the tribunal erred both in law and fact for failure to frame proper issues. 2. The Honourable Chairman of the tribunal erred both in law and fact for holding that the appellant is the one who authorized the 1st respondent to sell the land in dispute to the respondents. 3. The Honourable Chairman of the tribunal erred both in law and fact for admitting and readmitting letter (exhibit DI) tendered by the respondent. 4. The Honourable Chairman of the tribunal erred both in law and fact for admitting non stamped sale agreement tendered by the respondents and without any good cause. 5. The Honourable Chairman of the tribunal erred both in law and fact for holding that the ownership of the land in dispute by the appellant ceased(stopped) after the 1st respondent had started to sell the land in dispute to the respondents. 6. The Honourable Chairman of the tribunal erred both in law and fact for granting reliefs not pleaded by the respondents in the written statement of defense (pleading). 7. The Honourable Chairman of the tribunal erred both in law and fact for holding that the respondents are lawful owners of the land in dispute and not trespassers 8. The Honourable Chairman of the tribunal erred both in law and fact for failure to analyze and scrutinize evidence adduced by the parties. ’* CP 2 9. The Honourable Chairman of the tribunal erred both in law and fact by deciding in favour of the respondents especially 1st respondent by using underweight evidence adduced by him. 10. The Honourable Chairman of the tribunal erred both in law and fact for ignoring the facts and evidence adduced by the appellant 11. The Honourable Chairman of the tribuna/ erred both in law and fact for holding that the application be denied with costs A brief factual account underlying the present appeal as obtained from the records is to the effect that: the appellant bought the disputed land on 19th December, 2015 and handled it to the 1st respondent as her caretaker. That on 4th March, 2022 when visiting her land with the view of constructing a house, she found the respondents have trespassed the disputed land. The appellant instituted Land Application No. 80 of 2022 in the District Land and Housing Tribunal for Ilala at Kivukoni where the judgment was issued in favour of the respondents hence, this appeal The appeal was disposed by way of written submission. In appearance was advocate Steven Johnson Shitindi, learned counsel for the appellant whereas the 1st, 3rd and 6th respondents appeared in person and unrepresented. The 2nd, 4th, 5th and 7th respondents neither appeared nor filed any document in court. 3 In support of the 1st ground of appeal, Mr. Shitindi submitted that it was on the record and pleadings of the parties that the appellant was the lawful owner of the land in dispute. That the issue in dispute was supposed to be one; whether the appellant did allow the 1st respondent to sale the land in dispute to the respondents on his behalf, two; if the 1st issue is answered in affirmative then the issue is whether the ownership of the appellant had stopped after the 1st respondent had started to sale the land in dispute to the respondents, three, whether respondents trespassed to the land in dispute and, four is reliefs for both parties. He cited the case of Victor Raphael Luvena vs. Magreth Ephraim Kawa John Ntagwabira & Joshua S. Kazi, Civil Appeal No. 25 of 2021 at page 15 and 16 to bolster his argument on framing of issues. The counsel also referred on MULLA the Code of Civil Procedure by Sir Dinshaw Fardunji Mulla, 19th Edition Volume 2 at pages 2192 and 2193 where it was observed that: - "Omission to frame an important issue may sometimes cause prejudice to the parties resulting in failure to lead evidence on the point denied in the written statement, is not tried at all or if tried, is tried imperfectly so as to cause failure ofjustice, the case will, in appeal, be remanded for a retrial after framing the 4 necessary issue. In other words, omission to frame an issue is an irregularity which may or may not affect the disposal of a suit on merit if it does the appellate court should remand a case for a new trial to the lower court after framing the necessary issue" Mr. Shitindi submitted further that on account of the omission to frame and try a crucial issue which could have probably resolved the dispute between the parties, the trial and the resulting judgment were flawed and there was a failure of justice consequently, all the proceedings subsequent to the pleadings are nullified and the resulting ruling, orders and judgment are quashed and set aside. On the 2nd ground, Mr. Shitindi submitted that it is on record and admitted by the 1st respondent that the appellant is the lawful owners of the land in dispute, also all the other respondents in cross examination admitted that the appellant is the lawful owner of the land in dispute. That exhibit DI that was at first rejected by the tribunal and later on admittedly and confessed by the 1st respondent in cross examination that there were many letters titled mkataba wa makabidhiano ya shamba is doubtful. That the right of occupancy or rights or interests overthe land cannot be transferred by a mere forged letter. 5 On the 3rd ground, Mr. Shitindi contended that the chairman of the tribunal had rejected exhibit DI after the counsel for the appellant had raised an objection as to its validity and the fact that it was not attached to the pleadings. That it is trite law that once a document is rejected it cannot be admitted because the court becomes functus officio. He cited the case of Oscar Karsan Kanji vs. Abdallah Hassan, Civil Appeal No. 09 of 2020 at page 19-21 to bolster his argument. That parties are bound by their pleadings and the court is bound by the parties' pleadings. He referred to the case of James Funke Gwagilo vs. Attorney General [2004] TLR 161. On the fourth ground, Mr. Shitindi reiterated his submission on the second ground that Exhibit DI was at first rejected by the tribunal and later on admitted and confessed by the 1st respondent during cross examination. That it was un just for the trial chairman to reach to such destination without clearly analyzing the oral and documentary evidence including Exhibit PI that was never given or handed to the 1st respondent. On the fifth ground, Mr. Shitindi submitted that the trial chairman did admit sale agreements (D2, D3, D4, D5, D6 and D7) as exhibits contrary to section 47 (1) of the Stamp Duty Act [Cap 189, R.E 2019] which required that no instruments chargeable with duty shall be admitted in evidence for any purpose by any person having by the law or consent of party with authority to receive the evidence or shall be acted upon, registered in evidence authenticated by any other person or by any public officer, unless such instrument is dully stamped. On the six and seven grounds, Mr. Shitindi submitted that the respondents have neither raised a counter claim to be declared the lawful owners of the disputed land nor made such a prayer but the trial chairman did grant the relief. It is trite law that the court cannot grant reliefs that was not specifically pleaded. He cited the case of Abdallah Mabula vs. Sophia Masanilo, Civil Appeal No. 604/2023, at page 12 to bolster his contention. He was of the view that parties are not allowed to raise a different case without proper amendment being made. He cited the case of Geofrey George Bikongo vs. Century Insurance Company Limited, Civil Appeal No. 296 of 2020. On the eighth ground, Mr. Shitindi submitted that the trial chairman failed to analyze and scrutinize oral and written evidence adduced by the appellant. He referred the case of Paulina Samson Ndawavya Vs 7 Theresia Thomasi Madaha, Civil Appeal No. 45 Of 2017 where it was held at page 17 to bolster his argument. On ground nine and ten, Mr. Shitindi contended that the trial chairman did ignore and never considered oral and documentary evidence adduced by the appellant including Exhibit Pl that was never given or handed to the 1st respondent. That the trial chairman failed even to consider the demeanour of the witnesses especially the 1st respondent. The counsel contended further that it is on record and that during cross examination all the respondents admitted that the appellant is the lawful owners of the suit land. On ground eleven, Mr. Shitindi contended that the trial chairman erred in law and facts for holding that the application be denied with costs because such relief was not pleaded. He cited the case of Geofrey George Bikongo (supra). Mr. Shitindi finally, prayed for the court to quash and set aside the whole judgement and decree of the District Land and Housing Tribunal for llala at Kivukoni; declaration that the appellant is the lawful owner of the land in dispute; and allow the appeal with costs. 8 In rebuttal, the 1st, 3rd and 6th respondents submitted that the trial chairman had framed proper issues for the determination of the suit as provided on page 2 of the judgment. That Mr. Shitindi who happen to represent the applicant/appellant at the trial tribunal had a duty to propose and or to advice the trial tribunal on the proper issues as he thought fit for the tribunal to reach to fair and just decision. That the counsel failed to do so and proposing the same at this stage it is an afterthought. They cited the case of Jamal Abdillah Bakari (new administrator of the Estate of the late Abdillah Bakari vs. Mbaraka A. Bakari, Land Appeal No. 25 of 2015 reported in TanzLII at page 5 which cited the case of Abdallah Mfaume Hamisi & 7 Others vs. Azimio Housing Estate Ltd, Land Case No. 7 of 2014 to bolster the argument that the omission to raise the concern at the appropriate time would be an afterthought." On the second ground, they submitted that it was true that the appellant was the one who authorized the 1st respondent to sale the suit property to other people as shown in page 4 of the trial tribunal judgment. That the authorization of the said sale was proved by Exhibit DI that was witnessed by Mariam Thabit (SU6 ) who was Mjumbe wa Shina of 9 Chanika Kidugalo and that her testimony was not disputed by the appellant. On the third ground, the respondents submitted that the submission of Mr. Shitindi on this ground is a mere story. That there was nowhere the trial chairman had rejected the admission of Exhibit DI and the same was pleaded by the respondents on their pleading. That there was no any proof either from the court or from forensic investigation that the said document was forged. The appellant failed to challenge the validity of Exhibit DI because it revealed the truth of the whole case. On the fourth ground, the respondents submitted that there was no any dispute as to the ownership of the suit land that it was owned by the appellant before her authorization to the 1st respondent to sale the same to other people. That after the said authorization that witnessed by Mjumbe wa Shina as per the Exhibit DI, the ownership shifted to the buyers who lawfully bought suit land from the 1st respondent hence, the respondents are lawful owners of the suit land. On the fifth ground, the respondents submitted that there was no any dispute pertaining the contents of Exhibit DI. That what the appellant claimed is for the document to be stamped and the same was a curable 10 defect. That the trial tribunal decided to do away with technicalities rather looked what was just for the parties. That the issue of stamp duty is a mere procedural and technical issue and the same may be cured by the principle of overriding objectives. On the six and seven ground, the respondents contended that they made the prayer before the trial tribunal and the prayer was granted. That this is evidenced at page 2 of the trial tribunal judgment. On ground eight, the respondents submitted that the trial tribunal properly analyzed and scrutinized the oral and written documents, including Exhibit Pl. That each part to the suit have been given the chance to the fair hearing and providing evidence and the trial tribunal used the same evidences and exhibits to issue the judgment. On ground nine and ten, the respondents submitted that the same was discussed together with ground eight and that the court adopt the said submission. On ground eleven, the respondents submitted that the trial tribunal did not err in law and fact and by ending up with the fair, just and prompt decision. Finally, the prayed that all grounds of appeal be dismissed with costs. 11 After going through the rival submissions of the parties and the record of appeal, the pertinent issue for determination is whether the appeal has merit. I will respondent to each ground of appeal as argued by both parties in their submissions. On the first ground that the chairman of the tribunal erred both in law and fact for failure to frame proper issues. It is on record that the trial chairman framed three issues as follows: one, whether the applicant was the lawful owner of the suit land; two, whether the respondents are trespassers or have trespassed the suit land; and three, what relief are the parties entitled to. It also on record that Mr. Shitindi happen to represent the applicant/appellant in the trial tribunal when the said issues were framed. There is nowhere on the record that Mr. Shitindi has objected the issues framed and he even continue with the hearing and examination and cross examination of the witnesses. It is my observation as rightly submitted by the respondents that bringing this issue at this stage is an afterthought. I concede with the holding in the case of Jamal Abdillah Bakari (new administrator of the Estate of the late Abdillah Bakari vs. Mbaraka A. Bakari (supra) that the omission by 12 the counsel for the appellant to raise the issue at the appropriate time would be an afterthought. Therefore, this ground of appeal fails. Similarly, i will combine the second, third, fourth and fifth grounds that the trial chairman erred in law and fact for holding that the appellant is the one who authorized the 1st respondent to sale the land in dispute to the respondents, admitting and readmitting Exhibit DI, admitting non stamped sale agreement and holding that the ownership of the land in dispute by the appellant ceased after the 1st respondent had started to sale the land in dispute. It is on record as per Exhibit DI which was not disputed that the appellant had authorized the 1st respondent to sale the disputed land. The said exhibit was also witnessed by Mariam Thabit (SU6) who was Mjumbe wa Shina of Chanika Kidugalo to be valid and her testimony was not challenged. The allegation that Exhibit DI was forged does not feature on the record and even if it featured, it required a slightly higher standard of proof that in normal civil cases. It is my view therefore, that failure to stamp the said sale agreement, and in consideration of the circumstances of the said sale, I am of the settled view that it was proper admitting the same. The trial chairman would still have ordered for the 13 same to be stamped at a later stage but not rejecting them. These grounds in my view also fails. On ground six and seven, it was submitted that the respondents have neither raised a counter claim to be declared the lawful owners of the suit land nor made such a prayer but the trial chairman did grant the relief. On the contrary it was contended that the prayer was made and granted by the trial tribunal. Having looked on the record, particularly page 2 of the typed judgment, I am convinced that the prayer was made by the respondent and granted by the trial tribunal as it reads as follows: ... hivyo wadaiwa si wavamizi wa ardhi bishaniwa, bali ni wamiliki halali, na wanaomba madai yakataliwe kwa gharama. Therefore, these ground also fails. Again on ground eight, nine and ten, it was submitted that the trial chairman failed to analyze and scrutinize oral and written evidence and ignored those evidence including Exhibit Pl that was never given or handed to the 1st respondent. It was also submitted that the trial chairman failed even to consider the demeanour of the witnesses especially the 1st respondent. On the contrary, it was contended that the trial tribunal properly analyzed and scrutinized the oral and written documents, 14 including Exhibit Pl. That each part has been given chance to the fair hearing and providing evidence. It is on record and not disputed that Exhibit Pl was tendered as proof that the appellant did purchase the suit land on 19th December, 2015. There is nowhere on the record that is disputed that the appellant was not the owner of the suit land. The 1st respondent submitted that he was authorized through Exhibit DI to sale the appellant suit land. Having found that, I am of the view that the appellant has failed to prove these ground hence, the same fails. In response to ground eleven, it was submitted that the trial chairman erred in law and facts for holding that the application be denied with cost because such relief was not pleaded. On the other hand, it was submitted that the trial chairman did not err in law and fact by dismissing the application with costs. I do not see any fault to this holding as the respondents have prayed that: "..wanaomba madai yakataliwe kwa gharama"and this prayer was granted by the trial tribunal. With the foregoing and without prejudice to my observations, the appeal is here by dismissed. The decision of the District Land and Housing Tribunal in Land Application No. 80 of 2022 is upheld and the orders that followed it. I make no order as to costs. 15 It is so ordered. N.E. MANDIA JUDGE 16/12/2024 16