Judgement Land Appeal No 98702024 Mathayo Ero

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE SUB REGISTRY OF MANYARA

AT BABATI LAND APPEAL NO. 9870 OF 2024. (Originating from Land Application No. No.44 of 2023 before the District Land and Housing Tribunal of Mbulu at Dongobesh) MATHAYO ERO …………………………………….……..APPELLANT

VERSUS PETER BONIPHACE …………………………………………….RESPONDENT

JUDGMENT 24th October & 28th November, 2024 Kahyoza, J.: Mathayo ero (the appellant) (Mathayo) sued Peter Bonifance (the respondent) (Peter) before the district land and housing tribunal (the tribunal) seeking to be declared a lawful owner of the suit land. The tribunal decided against him. Aggrieved, Mathayo ero appealed contending that the tribunal applied the principles and evidence unfairly (double standard), that tribunal erroneously held that he did not prove the claims and that as a matter of judicial integrity and natural justice, the Chairman ought not to have entertained the matter, which he had entertained before, involving the same parties. The respondent opposed the appeal by supporting the tribunal’s findings that the appellant did not prove his claims. The appeal raised the following issues- 1 1. was the chair biased by the fact that he had hear the appeal involving the parties and over the same disputed land? 2. was the tribunal justified to hold that the appellant failed to prove his case? A brief background is that; Mathayo Ero filed an application against Peter Bonifance seeking for declaration that he is the lawful owner of one acre of land (the suit land), located at Slua hamlet, Haysali Village, in Haysali ward at Mbulu District. He alleged that he bought the suit land from the late Ms. Amsi Nade, at Tzs. 800,000.00 on 03.11.2018. On his part, Peter

Bonifance claimed to have procured the suit land from the late Bi Amsi Nade, on 09/02/2019. Given the facts of this case, it is not dispute that Ms. Amsi Nade was the owner of the suit land. The appellant and the respondent claim to have procured the suit land from her. Unfortunately, Ms. Amsi Nade, the seller is dead. After Mathayo Ero and Peter Bonifance disputed over ownership of the suit land in 2019, the former successfully sued the latter before Nahasey ward tribunal. The ward tribunal heard the matter ex parte and Matayo Ero won the day. Peter Boniface appealed to the tribunal and lost. Still aggrieved, Peter Boniface appealed to this Court (Barthy, J.), which decided that the ward tribunal had wrongly proceeded and decided that matter ex-parte. It 2 quashed and set aside the decisions of both tribunals and ordered that each party was at liberty to re-institute the matter before the right forum. Mathayo Ero re-instituted the suit against Peter Boniface before the tribunal. Peter Boniface’s appeal against Mathayo Ero and Mathayo’s application filed de novo against Peter Boniface, the genesis of this appeal, were heard by the same chairman, Hon. Mr. Ntumengwa. While hearing the appeal, the same chairman, Hon. Mr Ntumengwa decided in favour of Mathayo Ero, however, while determining the application instituted de novo he decided in favour of Peter Boniface. Was the chair

biased by the fact that he heard the appeal and an application involving the parties and over the same disputed land? Mr. John Lundu, the appellant’s advocate, complained that the chairperson of the tribunal was biased, as he applied double standard rule. He argued that the chairperson had heard the appeal from the ward tribunal involving the same parties and referring to the same suit land. He submitted that Peter was an appellant and Mathayo, the respondent. The chairperson held that Mathayo’s evidence and his witnesses proved the claim and dismissed the Peter's appeal. Peter appealed to the High Court which ordered a trial de novo. As the law had changed, Mathayo Ero commenced the suit after obtaining a certificate from the Ward tribunal. 3 The same chairperson heard Mathayo’s claim and dismissed it for want of evidence. The appellant’s advocate contended that from the layperson's perspective, the decision connoted questions in mind of the parties. He argued that the chairperson was required to recuse himself and leave the matter to be heard by another chairperson. The respondent’s advocate opposed the appellant's complaint that the chairperson was biased. He contended that the appellant’s advocate referred to exhibits which were not tendered as exhibit before the tribunal. He argued that the judgments of the ward tribunal and tribunal were not were not tendered as exhibits.

He contended that documents not tendered in court, cannot be relied upon. To support his contention, he cited the case of Makori Wasaga v. Mwanakombo and Another [1987] TLR 88. Parties must be bound by their pleadings and that they can only succeed by tendering evidence to prove their allegations. Parties cannot bring new case on appeal case. The cases the appellant's advocate is referring to the dismissed appeal by the High Court in Land Appeal No. 17/2022 Arusha sub- registry. Decision of the law courts once dismissed cannot be considered as court record. 4 Indisputably, the chairperson heard the appeal and the land application, the genesis of this appeal, both involving the same parties and over the same suit land. The chairperson decided the appeal in favour of Mathayo Ero and when he heard the application, he determined in favour of Peter. It is worth to note that, the tribunal heard the matter ex parte, Peter did not appear before the tribunal. For that reason, the chairperson determined the appeal based on Mathayo’s evidence only. It had no opportunity to consider Peter’s evidence. While during the hearing of the application, the genesis of this appeal, the tribunal heard the evidence of both sides. Given the above settled facts, it is the duty of this court to find out whether the chairperson was biased. The respondent’s advocate argued that the appellant’s advocate

referred to exhibits, which were not tendered. I am unable to buy the respondent’s advocate’s submission that the appellant’s advocate referred to evidence not on record. Reading the tribunal’s judgment, it is obvious that the tribunal referred to the proceedings and decisions of the ward tribunal and tribunal. The appellant’s advocate was entitled to refer to the proceedings and decisions of ward tribunal and tribunal, even if, they were not tendered as evidence. The appellant pleaded 5 facts as to the existence of the proceedings before the ward tribunal, the tribunal and the High Court which facts the respondent did not dispute. he admitted them. thus, those facts were proved. There was no need to tender exhibits to prove undisputed facts. The next question is whether the chairperson having heard the appeal involving the same parties and over the same land dispute, had prejudices when he heard the application. It is on that record the ward tribunal heard the appeal originating from proceedings conducted ex parte, that is it was a one-sided case. After this Court quashed and set aside the ex parte proceedings and decision, the parties appeared before the tribunal and presented the evidence which the tribunal based its decision subject of this appeal. The law permits a chair person or the magistrate to set aside the ex parte judgment and entertain the same matter inter-partes.

In such a situation, the chair person or the magistrate cannot be said to be biased by entertaining the same matter after setting aside ex parte judgment. After this Court set aside the ex parte judgment, the parties were required to go to the ward tribunal, which was required to entertain the matter. Unfortunately, they could not go to the ward tribunal as the law had changed, denying the ward tribunal jurisdiction to hear and determine land 6 dispute. I see nothing wrong with the chairperson hearing the application, the genesis of this appeal, after the High Court set aside ex parte judgment and quashed the proceedings. Thus, I find no merit in the complaint. The above said and done, I wish to consider another issue whether the appellant had the right to raise the issue which was not raised and considered by the trial tribunal. It is on record that the appellant knew that the chairperson heard Peter’s appeal between him Mathayo and Peter. Mathayo did not complain or raise the issue that there was a likely wood of the chairperson being prejudiced by what he had heard before. It is not the chair person’s judgment, which made the chairperson biased. If he was biased, he so biased from when the matter commenced and at the stage he decided against him. The appellant had a duty to raise the issue that there the chairperson was likely to be prejudiced and request him to recuse

himself. If the appellant had raised that complaint, the chair person would have made a determination. Failure to raise the complaint to the chairperson, the appellant acquiesced. He cannot be heard to complain at the appeal stage. It is settled that the appellate court cannot entertain matters not raised 7 before the trial court. See the Court of Appeal decision in Farida and Another v. Domina Kagaruki, Civil Appeal No. 136/2006 CAT. In the end, I find no merit in the first and third grounds of appeal. I dismiss the complaint that the chairperson was biased or applied the double standard rule in deciding the application the origin of this appeal. The High Court having set aside the ex-parte judgment and quashed the proceedings, there was no bar for the same chairperson to hear the application inter- partes. That is the practice. Was the tribunal justified to hold that the appellant failed to prove his case? The appellant complained in the second ground of appeal that the tribunal erred to rule out that the appellant did not proved his case. Unfortunately, during the hearing of the appeal, the appellant’s advocate did not address the complaint. He simply prayed this court to set aside the judgment of the tribunal and order that the appellant to be lawful owner of the suit land with costs. The respondent’s advocate submitted that the tribunal heard the parties and found that the

appellant had no evidence to prove his case. It found that the respondent's evidence was heavier than that of the appellant. He cited that the case of Paulina Samson Ndawavya v Threseia 8 Thomas Madaha, Civil Appeal No. 45/2017, tanzlii [ 2019] TZCA 453 to support his contention that a side with heavier evidence must win. I had cursory review of the evidence of both parties, to say the least, I concur with the tribunal that the appellant did not prove his case. The appellant was an applicant, (the plaintiff) for that reason, he had a duty prove his claim to the balance of probability. The Court of Appeal in African Banking Corporation T. Ltd vs T-Better Holdings Co. Ltd (Civil Appeal No. 207 of 2017) [2024] TZCA 165 (6 March 2024) held that- “It is also trite that, a party who has the burden of proof must discharge his burden on balance of probabilities regardless of the weakness in the case of his opponent.” Both the appellant and the respondent alleged that the bought the disputed land from the late Ms. Amsi Nade. The appellant deposed during cross- examination that he bought the disputed land from the late Ms. Amsi Nade, Safari Amsi and Joseph Amsi, however he did not summon either Safari Amsi or Joseph Amsi, to support his evidence. Katarina Mara (Pw2) the appellant’s witness deposed that she was one of persons who witnessed the sale agreement together with Augustino Arro,

her husband. It is obvious that the appellant’s evidence contradicted with his second witness, Katarina Mara (Pw2) as to who witnessed the sale agreement. One of them may have lied to the tribunal or both lied. I find 9 therefore that their evidence regarding the existence of the sale agreement is worthless. The appellant summoned his son Emmanuel Mathayo (Pw3) whose testimony regarding the boundaries contradicted not only the evidence of Katarina Mara (Pw2) but also the boundaries prescribed in the appellant’s application. Further to that, Emmanuel Mathayo (Pw3) deposed that the sellers were the late Ms. Amsi Nade and Joseph Nade where the appellant’s evidence was that the sellers were Ms. Amsi Nade, Safari Amsi and Joseph Amsi. Thus, the appellant’s evidence and that of Emmanuel Mathayo (Pw3) contradicted each other. Such evidence must be taken with care. In addition, Emmanuel Mathayo (Pw3) deposed during cross- examination, that he did not remember if, Katarina Mara (Pw2) was present when the sale agreement was concluded. In addition, there was contradiction between evidence of Emmanuel Mathayo (Pw3) and Katarina Mara (Pw2). They differed as to persons who witnessed the sale agreement. Katarina Mara (Pw2) deposed that the witness of the sale agreement were husband, Augustino Arro, and her, whereas, Emmanuel Mathayo (Pw3) deposed that he did not remember if Katarina Mara

(Pw2) witnessed the sale agreement. 10 In short, the appellant’s evidence was very shaking. It could not prove the case on the balance of probabilities. The respondent gave evidence that he bought the disputed land from the late Ms. Amsi Nade on 9.2.2019 in the presence of Boay Amsi Nade, late Ms. Amsi Nade’s son, Qwari Amsi, another late Ms. Amsi Nade’s son, Elias Trere, late Ms. Amsi Nade’s grandson and Mrs Boniface Nari, his wife and Paul Boniphace. Boay Amsi Nade (Dw2) the son of the late Amsi Nade, and Mrs. Boniphace (Dw3) testified. Mrs. Boniphace testified as Rozi Leone (Dw3). They testified that they witnessed the sale agreement and supported the respondent’s evidence. Like the tribunal, I find the respondent’s witnesses were consistent and reliable. In addition, the fact that the respondent summoned the seller’s son who witnessed the sale, proved the existence of the sale agreement between the respondent and the late Ms. Amsi Nade. The respondent, proved how he obtained the suit land by balance probability and more. Thus, the tribunal was justified to hold in his favour. I dismiss the second ground of appeal for want of merit. I order accordingly. In the end, I dismiss the appeal for want of merit with costs. Dated at Babati this 28th day of November, 2024. 11 John R. Kahyoza Judge Court: Judgment delivered in virtual presence of Mr. Basil Boay, the respondent’s advocate and in the absence of the appellant’s advocate Mr. Lundu dully notified. B/C. Mr. Damas (RMA) present. John R. Kahyoza, J. 28. 11. 2024 12