mbwana ilyas ndundu v ally kassim salagaadministrator of the estate of the late omary saidi salaga 2024 tzhclandd 42 22 february 2024

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 26313 OF 2023 (Originating from Land Appiication No. 65 of 2021 District Land and Housing Tribunal for Mkuranga at Mkuranga) MBWANA ILYAS NDUNDU APPELLANT VERSUS ALLY KASSIM SALAGA (Administrator of the Estate of the Late OMARYSAIDI SALAGA) RESPONDENT JUDGMENT 5'^ to 22"^ February, 2024 E.B. LUVANDA; J This appeal emanate from the decision of the District Land and Housing Tribunal, Mkuranga in Land Application No. 65/2021, where the Respondent named above was declared the lawful owner of six acres of land located at Ikwiriri South, Ikwiriri Ward/District. The Appellant above mentioned is challenging the verdict on the following grounds; One, the Honourable Chairman grossly erred in law and facts for conducting hearing of the parties and witnesses and determined the matter without referring to the Ward Tribunal Ikwiriri for trial or mediation as the case may be, as directed by the High Court; Two,the trial Chairperson erred in law and facts for not properly evaluating and 1 scrutinizing the evidence adduced by the parties herein; Three, the Honourabie Chairperson grossly erred in law/ and facts for not conducting a visit at locus in quo fox proper determination. Mr. Said Ally Said learned Counsel for Appellant submitted that this case ought to be instituted at the trial Tribunal as directed by the High Court in Misc. Land Appeal No. 112/2021 before amendment of Land Disputes Act, Cap 216 R. E. 2019 by the Written Laws (Miscellaneous Amendment)(No. 3) Act No. 5/2021. He submitted that after amendment, the Respondent ought to refer the matter at Ikwiriri Ward Tribunal for mediation, citing section 45(4) of Cap 216 (supra). He submitted that failure to comply with the requirements, render the whole proceedings,judgment and decree a nullity. Ground number two, the learned Counsel submitted that had the trial Chairperson properly evaluated and scrunitized the evidence of both parties could find the disputed land is a lawful property of the Appellant. He submitted that at a trial the Appellant testified to the effect that he is a lawful owner of the disputed land since 1942, but for reasons known to Omari Saiaga (Respondent's father)invaded and decided to cultivate the Appellant's Land. He submitted that PWl and PW2 said the Appellant invaded the land indispute in 2017, while PW4 said the Appellant trespassed to the disputed land so many years, arguing the evidence is contradictory. Ground number three, the learned Counsel submitted that In the pleadings the Respondent did not describe the size of his land alleged trespassed by the Appellant, arguing it is during trial the Respondent alleged is six acres, while one witness aileged five acres, and at Ikwiriri Ward Tribunal it was alleged to be ten acres. He submitted that the Appellant asserted to be a land of five acres. He submitted that it was very crucial for the trial chairman to conduct a physical visit at the locus in quo\o detect the truth and make an informed decision. In reply, the Respondent submitted that the Respondent instituted the case at Ikwiriri Ward Tribunal but they failed to settle it within thirty days from the date the matter was instituted and as resuit he decided to refer the matter to the District Land and Housing Tribunal (the Tribunal) without a certificate. He cited section 45(4) of Cap 216 (supra). He submitted that this issue was not raised at the Tribunal, arguing it cannot be raised at appeal stage, citing Kenedy Makuza vs. Monalia Microfinance Ltd, PC Civii Appeal No. 1 of 2021 HC Dodoma Registry. Ground number two, the Respondent submitted that he proved his ownership on the disputed piece of land, arguing DWl allege was given that land in 1942 by the Wajumbe'H\\\\s. DW2 said the Appellant inherited that piece of iand from his father. Ground number three, the Respondent submitted that it is not mandatory or the trial Chairman to visit a locus quo, arguing the Appellant did not request durial trial and the Tribunal could not move suo moto. On my part, I will start with ground number one. The matter giving rise to this appeal to wit Land Application No. 65 of 2021 is not a new suit. The record of the Tribunal reflect that the application (plaint) was presented for filing on 14/12/2021, this was after this Court ordered trial de novo vide Misc. Land Appeal No. 112/2019 dated 12/04/2021. It is true that this Court had ordered retrial to be done by the Ward Tribunal. It is also true that the provision of section 13 of Cap 216 was amended to introduce a new subsection (4) which require the matter to be referred to the Ward Tribunal for mediation prior being mounted for hearing by the District Land and Housing Tribunal, see section 13(4) introduced by section 45 of Act No. 3 of 2021 (supra) assented on 28/09/2021. As such when Land Application was refiled at the District Land and Housing Tribunal on 14/12/2021 already the law was amended, in a sense that Ikwiriri Ward Tribunal was no longer seized with adjudication role. Similarly the matter could not be referred there for mediation before the same members who had determined it on merit vide Land Application No. 5/2017. Importantly, it was a retrial and not a fresh suit. On similar vein, the argument of the Respondent that they failed to settle within thirty days that is why a certificate is missing, is a concocted fact and misleading argument. This is because in the appiication (piaint) nowhere it was pleaded that they made a submission to the ward tribunai for amicabie settiement and stayed for thirty days without settiement as aiieged. Be as it may,the argument of the Respondent that this issue ought to be raised at the Tribunai is vaiid. Infact herein it was raised as an after thought. Therefore ground number one is umerited. Ground two, to my view the Tribunai is fauited for nothing. At page seven and eight of its judgment, the Tribunai considered and evaiuated the evidence of aii witnesses paraded by both parties. And on the baiance ruied that the evidence of the Respondent was heavier than that of the Appeiiant. PWl asserted that his father the iate Omari Saidi Saiaga acquired the suitiand in 1950's. His testimony was supported by PW3(aged 81), that the iate Omari Said Saiaga is the owner of the suit iand for over forty years. PW6 who happened to be ceii member between 1990 to 2000 asserted that during his tenure in office, the iate Omari Said Saiaga was owning that iand. The Appellant(DWl)asserted to had owned the suit land since 1942. However, his testimony suggest at a certain point he abandoned it for the aiieged problem of stomach. Importantly, DWl was not specific as to when he abandoned it, and for how long. Again while in testimony, DWl allege he acquired by way of allocation by the committee members it is in 1942, but in his amended written statements of defence he allege to had acquired It in 1947 after the demise of his father. The story of DWl that he was allocated by a committee members contract with DW2 who alleged that the Appellant acquired it by way of inheritance. It is true that PWl and PW2 asserted that the Appellant trespassed in the suit land In 2017. It is true aiso that PW4 asserted that the Appellant arrived a bit many days ago. However PW4 made a reservation that he is not having a recollection of the exact date due to his illiteracy. Above all by the time when PW4 was testifying it was on 16/02/2023. At any rate when PW4 said many days, did not mean many years as alleged by the learned Counsel for Appellant. Therefore to my opinion, there is no any discrepancy between the testimony of PWl, PW2 and PW3 on this aspect. Ground number three. It is true that PWl asserted that the size of the suit land is six acres, and was supported by PW3,PW5. None of the Respondent's witness mentioned the alleged five acres. It is the Appeliant (DWl) and his witness (DW2) who asserted that the suit land is measuring five acres. That alone to my view could not warrant visiting the locus in quo. I understand that visiting the iocus in quo is within the domain and discretion of the Tribunal, and visitation can be taken at the instance of the Tribunal own accord or upon request by parties. Nowhere in the proceedings, the appeliant had intimated or made a formai request for visiting locus in quo. Therefore, bringing such a compiaint at appeai stage is improper and above all an afterthought. Matters relating to trial and collection of evidence are expected to be exhausted at the Tribunal before it dispose off the matter and hand down its judgment. At any rate reserving pertient and elementary issues or questions relating to the trial and raising it at an appeal, is typically an afterthought. In totality the appeai is without substance whatsoever. The decision of the Tribunal is upheld. The appeai is dismissed. However I decline to grant costs due to the fact that the Appellant is aging (was recorded to be 85 anos last year). - u o UJ E. B LJJVANDA Z': IDGE \V- ir// 2//02/2024 Judgment delivered in the presence of Mr. Godfrey Kizito learned Counsel for the Respondent and Juma Mbwana Ndundu (son) appeared on behalf of the Appellant. o E. B. L V DA GE 22/02/2024 D/viSvdt