Mange Chuma

The Judiciary of Tanzania IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA LAND APPEAL CASE REFERENCE NO. 202408061000019028 MANGE CHUMA (Administrator Of the estate of the late Chuma Shilinde) …....................................... APPELLANT Versus 1. NDOSELA MBASA……………………………………………….… 1ST RESPONDENT 2. MINJINGO MBOJE …………………………………………………2ND RESPONDENT (Originating from the Decision of the District Land and Housing Tribunal of Maswa at Maswa) (Hon. N.M. Ntumengwa - Chairperson) Dated the 26th June 2024 in Land Application No. 24 of 2021 ----------------------------- JUDGMENT 11th February & 28th February 2025. F.H. MAHIMBALI, J The appellant in this appeal has been aggrieved by the findings of the District Land and Housing Tribunal of Maswa (trial tribunal) vide Land Application No. 24 of 2021 in which it decreed in favour of the respondents. The main claim at the trial tribunal was a dispute over 50 acres of land in which the respondents are occupying, the appellant claims that the said 50 1 acres of land belong to his deceased father one Chuma Shilinde, and thus the respondents are trespassers over it. On the other hand, the respondents in replying to the appellant’s claims at the trial tribunal, disputed the said claims, testifying that the land is theirs lawfully acquired in 1980s and that they have been in use peacefully until 2020 when this dispute arose vide the appellant. Upon hearing the evidence of both parties, the trial tribunal ruled in favour of the respondents, reasoning that as per evidence in record, none was established by the appellant that the suit land belonged to his late father, consequently dismissed his claims with costs for want of merit. Dissatisfied with the said findings of the trial tribunal, the appellant has preferred this appeal armed up with three grounds of appeal, namely: 1. That, the learned chairman erred in fact and law for failure to analyze properly the evidence which was adduced by the parties during the hearing. 2. That, the learned chairman erred in fact and law for being biased. 2 3. That, the learned chairman erred in law for delivering the judgment which contravened section 19(2) of Land Dispute Court (The District Land and Housing Tribunal), Regulation 2003. During the hearing of the appeal, the appellant was represented by Mr. Frank Samwel, learned advocate whereas the respondents enjoyed the legal services of Mr. Daudi Masunga, also learned advocate. Submitting on the first ground of appeal, the concern was, the trial chairman had not thoroughly analyzed the evidence in record thus, reached an erroneous decision. It was submitted that reading page 4 - 7 of the tribunal’s judgment, is where you find the analysis and reasoning of the tribunal. In digest, it is clear that the trial chairperson had just analyzed and discussed the appellant’s evidence alone and not that of the respondents as was supposed to be. The issue posed by the tribunal that how the appellant’s father got the said land, is well answered in the case’s proceedings at page 4 that the said case (50 acres) was obtained by clearing bush land. Even when cross-examined, this PW1 firmly responded the questions without any slight of hesitation. Furthermore, PW1 stated how their father left the said land to SM2 - Nkuba Ngassa. When the SM2 left for medication, on his return, he found the respondents already in occupation of the said land. When he 3 inquired as to how they had intruded there, the respondents replied that they had already talked to the appellant’s father on the said land. In his testimony, SM2 had well stated how he was entrusted with the said land by the appellant’s father as care taker. This witness actually stated how he knew the said area and that it belonged to the appellant’s father and the total land was 50 acres. On the second ground of appeal, Mr. Frank Samwel, learned advocate submitted that failure by the trial chairman in not believing this SM2, merely on a claim of variation as to exactly when the said land was obtained: either in 1961 or 1980, Mr. Farnk Samwel was of the view that the issues that the trial tribunal was focused to establish were only two (as per page 3 of the typed proceedings): 1. Whether the suit land is part of the deceased estate 2. To what reliefs are the parties entitled to. He concluded by saying that, the issue of variation of years, was not an issue at the trial tribunal and that the same was dully established as per required legal standard. 4 With the second ground of appeal, it was Mr. Samwel’s submission that the trial chairperson was vividly biased. Since the respondents’ evidence was not evaluated, it is a wonder how then he arrived at such a conclusion. Reading page 7 Paragraph one of the judgment of the trial Tribunal is very clear as it purports weighing the evidence in preponderance while actually there was nothing evaluated. Submitting on the third added ground of appeal, it was Mr. Samwel’s submission that, the honourable learned chairperson erred in law for delivering the judgment which contravened section 19(2) of the Land Dispute Court (The District Land and Housing Tribunal), Regulations 2003. He clarified that, before the trial chairperson retires for writing of the judgment, it is a legal requirement that the tribunal assessors sitting with the chairperson, each must prepare his/her opinion in writing and present it to the trial tribunal for filing. Reading page 11 of the typed proceedings, the said case is recorded to have been completed its hearing on 21/06/2024. The last order is quoted being said: Opinions and judgment on 24th June 2024. This means that, when the tribunal assessors were busy writing their opinions, the trial chairperson was equally busy writing his judgment. That was not proper. As they were not ready on the date set, it was adjourned. 5 But deeply digesting the same, Mr. Frank Samwel was of the view that, the judgment was already prepared but only waiting for the assessors’ opinions which was contrary to the law. When the matter was adjourned on 26th June 2024 for judgment, the trial chairperson had already made a finding of the case prior to the receiving the assessors’ opinions. On these submissions, he humbly prayed that the appeal be allowed, trial judgment be dismissed to the extent of that violation. He also prayed for costs. On his part, Mr. Masunga learned advocate for the respondents in resisting the appeal, argued as follows: On the first ground of appeal that there was failure of evidence analysis by the trial chairperson, he disputed that fact on being true. He submitted that, in essence, it is a trite law, he who wishes the court to give him/her judgement, the onus is upon him to establish the existence of the said facts (see section 110 of the Evidence Act, Cap 6). He submitted further that, it is also trite law that parties are bound by their pleadings and in this matter - the appellant. He clarified that the evidence of the parties must confine itself to the ambits of the parties’ pleadings. Therefore, if the tribunal finds that 6 evidence adduced is beyond the scope of the pleadings, should be ignored - See Yara Tanzania Limited V. Ikuwo General Enterprises Limited, Civil Appeal No. 309 of 2019, CAT at DSM at page 10 &11. He clarified that reading page 4 of the lower tribunal’s proceedings, the appellant claimed in his testimony that the suit land belonging to him as obtained by his father in 1961 by clearing the bush land. But his plaint, at page 6(a)(2), tells that the appellant’s father had obtained the suit land in 1980. Further, he clarified that the typed proceedings at page 4, the appellant alleges that his father had given the same suit land to Nkuba Ngassa While in the pleadings (paragraph 6(a)3, says his father had given the said land to Nkuba Ngassa in 1990. The records don’t say anything if there was any amendment to the pleading. Thus, it is vital clear on this submission, the appellant was making reference to quite a different case. In his considered view, the DLHT had analyzed and discussed well the tribunal’s evidence and reached a proper finding as per law and rightly reached a proper judgement (Page 3- 4). Therefore, the issue of years as raised that is not relevant, he wondered if the appellant was serious with his submission. Such a variation goes to the root of the case. Even SM2 at page 5 of the typed proceedings, had come with another version Contrary to the statement in the plaint. It is 7 true that at the DLHT there were only two issues. However, the proof of ownership goes hand in hand with the issue of timing. That cannot be avoided. It is a legal principle of legendary that burden of proof cannot shift but it was the primary duty of the appellant. It is also the rule of law that court’s judgment should confine itself to the issues of the case, pleadings and evidence adduced in court. In the case of Tabora Municipal Council and 2 others V. Kasea Kisanyi & 39 Others, Civil Appeal No. 112 of 2023, CAT at Tabora that Court’s pleadings must be based on pleadings and issues framed for determination. Thus, it is his considered view that the trial tribunal well analyzed the evidence received and reached a proper verdict. With the second ground of appeal, that the chairman was biased, he vehemently opposed it. It is Mr. Masunga’s submission that the Chairperson had reached that decision only after having done a thorough analysis (Page 4 of the typed judgment). He clarified that only a party with stronger evidence is declared the winner of the case and not otherwise. That the respondents’ evidence was not analyzed at all, he considered it as falsity. He urged this honourable court to scrutinize the said judgment well and will get the touch of it. 8 On the last ground of appeal which is based on legality of the judgment for not first considering the assessors’ opinions, he challenged its truthfulness. He clarified that reading rule 19(1) & (2) of the Land Dispute Court (The District Land and Housing Tribunal), Regulations 2003, the judgment of the DLHT can be delivered instantly or later but in any case, it should not exceed three months. Therefore, Rule 19(2) is not read in isolation of rule 19(1) but conjunctively. Now, reading page 11-13 of the typed proceedings of the DLHT is very clear that prior to the pronouncement of the said judgment, the assessors’ opinions were demanded and incorporated into the judgment. Thus, the argument that judgment was already there prior to the assessors’ opinions is not reflected in the said proceedings, but rather it is the submission from the bar. Furthermore, at last paragraph of the typed judgment (page7), the chairperson is loud and clear that his findings are in concurrence with the unanimous opinions of the assessors. Therefore, there is nothing of illegality in this judgment as alleged. Having submitted all this, he prayed for the following orders: 1. Appeal be dismissed with costs. 9 2. The findings and orders of the trial tribunal be upheld all. 3. all other reliefs as this honourable court may deem fit and just to grant. In his rejoinder submission, Mr. Frank Samwel submitted that what has been submitted by Mr. Masunga has misconstrued the law. He clarified that what rule 19(2) provides is this, before composing his/her judgment, the chairperson must consult the assessors and not just before delivery. He urged this honourable to have a keen perusal of tribunal’s proceedings. With the first and second grounds of appeal, he also reiterated his submission in chief, that the said judgment is a summary of the evidence. But with analysis, that is only available at page 4 which is only one sided. He conceded with the fact that a court or tribunal in its determination of a case must confine itself to the issues framed. But in this case, he reiterated that as to when the said land was acquired, was not the issue of the case for determination. As to the provided authorities (Yara Tanzania Limited), he was of the view that he is not in contest with the set precedents but they are not relevant with the matter at issue. There the issue for discussion was 10 new claims, which is not the case here. Thus, difference in years is not a root issue of the case but a minor one. He finally submitted that so long as it is undisputed that the appellant had established his case to the required standard, it is his humble prayer that the appeal be allowed. Otherwise, on a point of illegality, the matter be ordered to commence afresh to cure the anomaly pointed out. Having keenly heard the parties, the vital question in the digest of this appeal, is whether the appeal has been brought with the sufficient cause. In consideration of the first two grounds of appeal which mainly center on the question of fact, I have first to determine the appeal based on evidence and the legal position cherishing ownership of land. Being the first appellate court, I am also privileged to step into the shoes of the trial tribunal and asses the whole evidence adduced by the all parties at trial and give my own findings on those issues of fact. Finally, I will consider the aspect of illegality raised in addition by the appellant’s learned advocate. It is the cardinal principle of law that in civil cases, that the burden of proof lies on the person who alleges anything in his favour as founded in section 110 of the Evidence Act. Further, it is also the settled law that the 11 burden of proof envisaged above is on the balance of probabilities (See 3(2) b, of the Tanzania Evidence Act) and as stated in various decisions, including Anthony Masanga v. Penina Mama Mgesi and Another, Civil Appeal No. 118 of 2014, Hemed Said v Mohemed Mbilu [1984] TLR 113, and Hamza Byarumshengo v. Fulgencia Manya and 4 Others, Civil Appeal No. 33 of 2017 (both unreported). Scanning the trial tribunal’s record, the appellant who was the applicant at the trial tribunal, in her application (plaint), claimed that the suit land as belonging to the deceased Chuma Shilinde (appellant’s father) who obtained the said land by bush clearing in 1980. From then, he had been using it until 1999 before his demise where he handed over to SM2 Nkuba Ngassa as care taker when he left for the medication. Unfortunately, he fell into demise in the same year 1999. From then, the said Nkuba Ngassa kept on watching it until 2015 when he noticed it being invaded by the respondents. He thus informed the appellant who initiated the filing of the case whose decision is the subject of this appeal. The said land was described being 50 acres, located at Saba village, Paji Ward, in Meatu District within Simiyu Region with the following boundaries: 12 North – Ng’halanga. South – Malegi, East – Gonji Gadama and West – Nkuba Ngassa. In his testimony establishing the claims, the appellant stated that the claimed 50 acres belong to his late father as he obtained by bush clearing in 1961. And that in 1995, he fell sick and left for medication leaving his farm under the control of one Nkuba Ngassa. The said father then died. That in between, the said Nkuba Ngassa also fell sick and left to Maswa. In his return from medication, Nkuba Ngassa noted the said farm being invaded by the respondents. When he inquired them on the legality of their use, they replied that they have been allowed by the family of Chuma Shilinde. Thus, the genesis of this case. The said Nkuba Ngassa testified as SM2 of the case. In his testimony, he stated to have known the said 50 acres as belonging to the late Chuma Shilinde who got it by bush clearing in 1960. And that the said Chuma Shilinde had left for traditional medication for a long time and later died. Himself after he had known the said 50 acres being invaded by the respondents claiming that they had been allowed by the family of the late 13 Chuma Shilinde. Surprisingly, the appellant and his siblings noted the said invasion disputing giving permission to the respondents, thus the commencement of this suit at the lower tribunal. On the other hand, the both respondents disputed the appellant’s assertion at the trial tribunal on the invasion claims. Instead, the first respondent claimed to have cleared the bush in 1980 and from then he has been using peacefully until now. That he also in 1984 sold part of that land (20 acres) to the second respondent at a consideration of 60,000/=. His testimony was corroborated by the evidence of SU2 and that of SU3. The latter (su3) testified that he came to that village in 1991 and saw the respondents already in the occupation of the said land in dispute. He added that in 2014 he was also elected as chairperson of the village where he served until 2019. During his reign, he never heard of any land dispute involving these parties. Upon evaluating and analyzing the evidence in record, the trial tribunal dismissed the appellant’s claims on the ownership of the said 50 acres of land for being unmerited. Thus, the basis of the current appeal. 14 Ownership of land is a question of fact. It must be strictly established. In the current facts of the case assuming that the said disputed land was actually once held by the late Chuma Shillinde as claimed, the following facts needed to be established: When did he acquire the said land, how he acquired it, the size of it and where is the said land. SM1’s who is the appellant in this matter being plaintiff by then claimed that his father had obtained the said land in 1980 by clearing the virgin land. He used it until in 1999 when he handed over the same to Nkuba Ngassa (SM2) as care taker. Unfortunately, when Nkuba Ngassa had noted the invasion by the respondents in 2015, thus the genesis of this suit. Since ownership of land is a question of fact, it must be strictly established. In the current case, there has not been tangible evidence by the appellant to establish the said ownership. In his testimony he obviously departed from his own pleadings when he testified that his father had obtained the said land in 1960 by clearing it being virgin. The same was differed by SM2’s testimony who said it was acquired in 1961. Assuming that 1960 or 1961 is a minor variation which might be due to much time lapse. There is no explanation however offered why the pleading which says 1980 and evidence is 1960s. Mr. Samwel is saying that is not a big deal as the 15 issue before the trial tribunal was not on timing of ownership, but who was the rightful owner. Thus it was irrelevant. Perhaps it is important to redefine in this appeal what is evidence. In relation to law, the word evidence is considered as all legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact, the truth of which is submitted to judicial investigation. The word evidence and proof are often used as synonyms, but the latter is applied by accurate logicians rather to the effect of evidence than to evidence itself. It is a matter of fact, the effect and tendency or design of which is to produce in the mind of persuasion, affirmative or disaffirmative, of the existence of some other matter of fact. Evidence means the testimony, whether oral, documentary or real, which may be legally received in order to prove or disprove some fact in dispute (See The Law of Evidence, 21st edition reprint, Wadhwa and Company Nagpur by Ratanlal and Dhirajlal at page 8). As per statement of claims, fitting them in this matter, for the appellant to claim ownership over it since 1980 or 1960, if at all was real, he had to establish continuous interests over it. As per facts of this case, it has not been clear if after the said bush clearing in 1980 or 1961, what did the appellant do with the said land. He used it for what purpose. A mere clearing 16 of the bush per se does not entitle a person with a title of ownership, but continuous interest over it by the active use of the said land. Abandoning of land use for a certain period of time, the law gives no further recognition to it. (see Registered Trustees of Holy Spirit Sisters Tanzania v. January Kamili Shayo & 136 Others (Civil Appeal No. 193 of 2016) [2018]TZCA 365 (6 August 2018) TanzLII and Idrissa Ramadhani Mbondera v. Allan Mbaruku and Another (Civil Appeal 176 of 2020) [to mention but a few). In the former case, the CAT subscribed to two English decisions in Moses v. Lovegrove [1952] 2 QB 533 and Hughes v. Griffin [1969] 1 All ER 460 as well as the decision of our neighbouring jurisdiction of Kenya in Mbira v. Gachuhi[2002]1 EA 337; a decision of the High Court of Kenya to hold that a person seeking to acquire title to land by adverse possession must cumulatively prove the following: (a) That there had been absence of possession by the true owner through abandonment; (b) That the adverse possessor had been in actual possession of the piece of land; 17 (c) That the adverse possessor had no colour of right to be there other than his entry and occupation; (d) That the adverse possessor had openly and without the consent of the true owner done acts which were inconsistent with the enjoyment by the true owner of land for purposes for which he intended to use it; (e) That there was a sufficient animus to dispossess and an animo possidendi; (f) That the statutory period (in this case twelve years) had elapsed; (g) That there had been no interruption to the adverse possession throughout the aforesaid statutory period; and (h) That the nature of the property was such that, in the light of the foregoing, adverse possession would result." On the other hand, in the case at hand, the respondents clearly established it and perfectly well how they owned the said disputed 18 land continuously from 1980 and 1983 and brought oral proof (SU3) which, accordingly substantiated ownership of the said land by the respondents. By the way, it appears the appellant himself knows nothing of the said land. He neither stated knowing the said land nor told so by his late father. He had no neighbors to call nor anything to establish the fact of the said possession as claimed. Above all, if the tribunal finds that evidence adduced is beyond the scope of the pleadings, should be ignored - See Yara Tanzania Limited V. Ikuwo General Enterprises Limited, Civil Appeal No. 309 of 2019, CAT at DSM at page 10 &11. In the current case that is the situation. It appears the appellant was establishing ownership of something else and not the said land owned by the respondents On the above evaluation and analysis of the case’s testimony, both issues were rightly responded, thus it should not detain me further. On the last ground which is based on illegality of the judgment for not first considering the assessors’ opinions, I find it misplaced in the circumstances of this case. Reading rule 19(1)&(2) of the Land Dispute Court (The District Land and Housing Tribunal), Regulations 2003, the judgment of the DLHT can be delivered instantly or later but in any case, it should not 19 exceed three months. Therefore, Rule 19(2) is not read in isolation of rule 19(1) but conjunctively. Now, reading page 11-13 of the typed proceedings of the DLHT is very clear that prior to the pronouncement of the said judgment, the assessors’ opinions were demanded and incorporated into the judgment. Thus, the argument that judgment was already there prior to the assessors’ opinions is not reflected in the said proceedings, but rather it is the submission from the bar. Furthermore, at last paragraph of the typed judgment (page7), the chairperson is loud and clear that his findings are in concurrence with the unanimous opinions of the assessors. Therefore, I agree with Mr. Masunga that, there is nothing of illegality in this judgment as alleged. Since judgment of the DLHT is not the domain of the assessors but the chairperson, what most the chairman has to do in the event of difference with the assessors is to state reasons which is explicitly clear in this case that, his decision tallies with the opinion of the tribunal assessors. All this said and considered, this appeal is brought without any sufficient cause and it is hereby dismissed with costs for want of merits. 20 It is so ordered. Right to appeal fully explained to any aggrieved party. DATED at SHINYANGA this 28th February, 2025. F.H. Mahimbali Judge 21