mikidadi jafari vs hamza shaban buraheze administrator of the estate of the late shaban buraheze 2023 tzhc 16303 24 march 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF KIGOMA AT KIGOMA LAND APPEAL NO. 17 OF 2022 (Arising from Land Application No.30 of 2016 in the DLHT of Kigom a delivered on 01.07.2022) MI IDADI JAFARI A P P ELLA NT VERSUS HAMZA SHABAN BURAHEZE (Administrator of the estate of the late Shaban Buraheze} RESPONDENT Date of Last Order: 06.03.2023 Date of Judgement: 24.03.2023 JUDGEMENT MAGOIGA, J. This is an appeal against the judgem ent and decree of the District Land and Housing Tribunal for Kigom a (Mwinyi, Chairm an), dated the 1st day of July, 2022 in Land Application No.30 of 2016. In Land Application No. 30 of 2016, the respondent instituted a land Application against the appellant and Bukuru Moris Mbanakila (not in this appeal and w ho did not participate in the low er Tribunal). Briefly, the respondent's claims against the respondents w as for; declaration as the law ful owner of the disputed land situated at Plot No.44 Block M.D. Katonga Kigoma, vacant possession, general damages, costs of the suit and any other relief the Tribunal may deem just and fit to grant. ~ U p o n s e rv e d a n d in res pon s e , the ap p e ll an t a n d M r . B u k u r u M o ris M ban a k ila fi le d a jo in t w ritte n sta te m e n t o f d e fen c e in w h ic h d is p u te d all cl a im s b y th e re s p o nd e n t a n d s ta ted th a t, th e a p p e ll an t is th e cus to m a rily la w fu l o w ne r of th e dis p u te land a n d in 1 997 the s a m e w a s a ll o c a ted to Sta m il i H a m im u (th e la te w ife o f th e a p p e ll an t). F u rt h e r fa ct s w e re tha t in 2 0 1 3 , th e a p pe llan t s o ld th e d is p u te d land to the B u k u ru M o ris M bana k ila . Aft e r h e a rin g p a rt ie s o n m e rits , the tria l T rib u n al fo u nd in fa v ou r o f th e re s p o n d en t a nd d e cl a red h im th e rig h tf u l o w n e r o f the d is pu ted la n d . Ag g rie v ed b y th e s a id fi nd ing s , the a p pe ll a n t p re fe rre d th is a p p eal a rm e d w ith s ix g ro u n d s o f a p pe a l fa u lting th e tria l T rib una l in the fo ll o w ing lan g u a g e, n a m e ly : 1. That, the trial Tribunal erred in law and fact by declaring the respondent the rightful owner of the disputed land, basing on the letter of offer dated 1998 illegally obtained by the respondent while at the material time the disputed land and all land around it they had no offer, rather from 1997 all land were under Bangwe Beko Village Council, and the village council from 1997 stated to sale the said land to the citizens and it is the time when the disputed land was sold to the appellant after paying eight thousand only ~ {8,000/ ) to have village council; 2. Tha t, th e trial Tribunal erred in la w an d facts on determining the ma tter which is time barred, beca use the appellant used the land in dispute since 1997 and the respondent came after 12 years to claim the ownership of the land, with forged letter of offer; . That, the trial Trib unal erred in law and fact by denying the appellan t the right to be represented by a dvoca te, despite the fact that the app ellant told the tribunal that his being represented by a dvoca te and his advocate was attending the case a t the High Court; 4. Tha t, the trial Tribunal erred in Jaw and fact by n ot considering the appellant's e vidence that he ob tained the disp uted lan d sin ce 1997 by sale from village council, and admitting th e forged letter of offer da ted 1998 of the respondent; 5. Tha t, the trial Trib unal erred in la w and fact on determining the matter by denying to admit the appellant's receip t tha t was used to pay eight thousan d only {B,000/-J to be issued with the disputed land by the village council as exhibit; 6. That, the trial Tribunal erred in law and fact by deciding on favour of the respondent by basing on the forged letter of ~ offer and living out the evidence of the appellant's witness on JUMA BILALI who was {the village chairman}, the person that participated on distributing the disputed land. When this appeal was called on for hearing, the appellant appeared in person and unrepresented, while the respondent had the legal services of Mr. Slyvester Damas Sogomba, learned advocate. The appellant a layman had nothing to submit but told the court that this court consider the grounds of appeal and allow his appeal as prayed in his petition of appeal. Addressing this court in reply, Mr. Sogomba told the court that, this appeal is without any merits and urged this court to dismiss it with costs. Arguing grounds 1, 4 and 6 jointly which their complaint is premised on exhibit P2 that is forged offer and that the appellant is the owner of the disputed plot since 1997. Brief to the point, Mr. Sogomba argued that PW2 proved that exhibit P2 is not a forged document but genuine document and is in the record of the Municipal Council and that his testimony was clear that, the disputed land belongs to the respondent. Further, Mr. Sogomba argued that, the issue of forgery was not an issue in the trial Tribunal, so the arguments are cropping up in this appeal and was not a matter that was decided by the trial Tribunal. On that note urged this court to ~ d is re ga rd it an d fo u n d th e s e g roun d s jo in tly a rg ue d a re w it h n o m e rits a n d p roce ed to d is m is s th e m . N ot on ly tha t bu t als o tha t, D W 2 fo r the a p p e ll a n t c a te g o ric a lly te s tifi e d tha t th e p lo t, if a n y , w as giv e n to S TA H I M I LI b u t n o e v ide n c e w a s te n d e red to p ro v e th is a ll e ga tio n . O r tha t e v e n if it w as te n d e re d b u t still sa m e c o u ld n o t p ro v e the o w n e rsh ip b ec au se it d id n ot m e n t io n a n y p lo t nu m b e r. A s re ga rd th e s e co n d g ro un d o f a pp e a l, M r . S o g o m b a a rgue d th a t n o e v ide n c e w a s p u t on rec o rd th a t the a p p e lla n t h a s b e e n in o c c u p a tio n o f th e suit plo t s in c e 1 9 97 a n d a s su c h th e s u it b a rre d . Acc o rd in g to M r . S o go m b a , the s u it la n d sin ce 1 99 8 w a s th e la w fu l p ro p e rty o f the re sp ond e n t a nd th e d is p u te s ta rte d in 2 0 1 6 w h ic h m a k e s th is cl a im w ith in tim e . O n tha t n o te th e le a rn e d a d v oc a te fo r th e res p ond e n t u rge d m e to d is m iss th is g ro u n d a s w e ll. O n th e th ird g ro u n d , tha t the a p p e lla n t w a s d e n ie d rig h t o f le g a l rep res e n ta tio n , M r . S og o m b a re p lie d tha t, is n o t true b e c a u se it w as th e a p pe lla n t w ho o p te d to p ro c e e d w ith o u t his a d v o c a te . T h is g ro un d , a s w e ll, M r . S o g o m b a u rg ed th is co u rt to fi n d w a n tin g in th is a p p ea l. F ina ll y , o n th e fi ft h g ro un d , th e le a rne d c o un s e l fo r th e re s p o n d e n t a rgue d in re b u tt a l tha t, th e re c o rd o f th e tria l T rib una l is cl e a r tha t, n o s u c h p ra y e r b y th e a p pe ll a n t w as d e n ie d to te nd e r e x h ib its . F a ilu re to te nd e r e x h ib its , cil\ if an y , w as d u e to n e g lig en c e o f the a p pe ll an t, in s is te d M r . S og o m ba . M r . S og o m b a p o in t e d o u t tha t, e v e n if the s a id rec e ip t w a s a dm itt e d it c o u ld n o t a d v a n c e the a p pe ll a n t's case bec au se it h a d n o p lo t n u m be r a s a ll e g e d . O n th e a bo v e reas o n s , M r. S o g o m b a in v ite d th is c ou rt to fi nd a n d h o ld th a t th is a p p ea l is w it h o u t a n y m e rits a nd p ro c eed to d is m is s it w ith c o s ts . In rejo ind e r, the a p pe ll an t rejo ine d th a t w h a t w a s s u b m itte d b y th e le a rn e d a d v o c a te fo r th e res p o n d e n t is n o t tru e a nd a d de d tha t his e v ide n c e w a s n o t ta k en a nd re ite ra te d his ea rlie r p ra y e rs to a ll o w th e a p p eal w ith c o s ts . T h is m a rke d th e e n d o f h e a ring o f th is a p pe a l a nd th e d u ty o f th is c o u rt n o w is to d e te rm in e th e m e rits o r othe rw ise o f th is a p pe al. T h e fi rst, fou rt h a n d s ix th g rou nd s o f a p p e a l as co rre ct ly jo in tly a rgue d b y M r . S o g o m b a re v o lv ed a ro u n d th e v a lid ity o f th e e x h ib it P 2 a d m itt e d b y trial T rib una l. T h e all ega tio n s o f th is e x h ib it b e in g a fo rge ry o r ill eg a ll y ob ta ine d w a s raise d b y th e a p pe llan t. To th is p o in t, a nd g u ided b y the p rov isio n s o f s e ct io n 1 10 (1 ) o f the Tan za n ia E v id e n c e Act , [C a p 6 R .E ~2 0 1 9 ] is cl e a r th a t th e bu rd e n o f p roo f lies to the p e rs o n w ho d es ire the c ou rt to giv e ju d g e m en t as to a n y lega l rig h t o r liab ility w h ic h h e a s s e rts to e x is ts . T h e s aid s e ct io n fo r ea sy o f re fe re n c e p ro v id e s a s fo ll o w s :- " S e c t io n 110(1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts w hich he asserts must prove that those fact s exists." In this suit, much as it was the appellant who wanted the court to give judgement that the contents of exhibit P2 were forged or illegally obtained he was duty bound to prove the actual forgery or the manner in which was obtained was illegal. This necessitated this court to go through the evidence on record of the appellant on this point and have noted and observed that no iota of evidence of forgery was tendered nor evidence on illegal obtaining of the same by the respondent was proved. It is one thing to allege, and yet another thing to prove the allegation. In the situation at hand, the appellant alleged but utterly failed to put forward evidence on record to prove forgery or illegal obtaining of the disputed plot by the respondent. On that note, as rightly argued by Mr. Sogomba, these three grounds of appeal together are devoid of any useful merits and consequently are dismissed in the circumstances of this appeal. This takes this court to ground number 2 that the suit in dispute was to time barred because the appellant used the disputed plot for more than 12 years since 1997 and the dispute arose in 2016. This being appoint of law, in our jurisdiction, even without citing case law which are abound, is a trite law it can be raised even on appeal as in this appeal. While it is true that the appellant was given the disputed land in 1998 but his pleadings are silent on when the respondents trespassed into the suit plot. But at least the appellant's pleading shed light that at least in 2014 there was legal dispute which sailed to court but was nullified leading to the instant proceedings. In the instant appeal, I have carefully revisited the record of the trial Tribunal proceedings, and in particular, at page 8 of the typed proceedings where the respondent tendered Building Permit as exhibit P3 dated 2014 and at page 10 of the proceedings, the respondent who testified as PWl had this to say: "the invasion started in 2014." This piece of evidence not contradicted by the appellant together with exhibit P3 corroborate that the invasion was in 2014 and suffices to dispose of this ground that, the instant suit is not time barred and as such this ground is equally dismissed. As regard to the third ground of appeal whose complaint was that the appellant was denied right to legal representation. Mr. Sogomba argued that no one denied the appellant such an opportunity but it was the ~ appellant himself and his advocate who denied themselves such an opportunity. I have carefully and thoroughly gone through the trial proceedings and have noted that on 16/03/2022 when the matter was called for hearing, the appellant's advocate was not present without good cause and the appellant prayed that for another date and was granted and the matter was scheduled on 04.04.2022 but on that day the story was the same, the learned advocate for the appellant was for the second time absent without good cause and was scheduled on 20/04/2022 and the story was the same. On 20/04/2022 being a third time and the trial Tribunal invoked the provisions of Regulation 13 (2) of Land Disputes Courts (District Land and Housing Tribunal and addressed the appellant on the fate of defence and the appellant had this to say: "Mjibu Maombi- sina pingamizi nitaendelea mwenyewe." For better understanding and easy of reference, Regulation 13(2) provides as follows: "Regulation- 13(2) Where a party's advocate is absent for two consecutive dates without good cause and there is no proof that such as advocate is in the High Court or Court of Appeal, the Tribunal may require the party to proceed himself and if he refuses without good cause to lead evidence to establish ~ his case, the Tribunal may make an order that the application be dismissed or make such other order as may be appropriate." (Emphasis mine). In this appeal, the record of the trial Tribunal is clear that the advocate for the appellant absented himself not only twice but thrice consecutively and the trial Tribunal, in my respective opinion, acted within the law and the appellant cannot say was denied but he has himself and his advocate to blame. With the above findings, this ground is as well with no merit and is hereby dismissed. Finally, as to the 5th ground was that the appellant was denied right tender the appellant's receipt which he used to pay in the Village Council. Mr. Sogomba denied this complaint and brief and to the point submitted that there was no such denial but was negligence of the appellant for failure to tender the receipt. In the alternative, he argued that even if it was tendered had no plot number and no name of the appellant but the name of STAHIMILI who is alleged to be no more. I have carefully considered this ground in the light of evidence on record of the trial Tribunal, in particular, when the appellant testified (at pages 35-40) but with due respect to the appellant, there is nowhere in the record where he intimated to tender any exhibit but denied by the trial cfPA T ribuna l. T h is g ro un d w a s ra ised o u t o f co n te xt in th e c irc u m sta nc e s o f this a p p e a l. W ith o u t m uc h a d o , th e re fo re , this g ro u n d a s w e ll is a k in to fa il a n d is d ism issed . U ltim a te ly , b ased o n m y fi n d in g s in the a ll six g ro unds o f a p pe a l p re fe rre d , this a p pe a l is a kin to w h o lly fa il, a nd is h e reb y d ism is sed w ith costs fo r w a n t o f m e r it s . It is so ordered. M Iii 2023. S. M. MAG IGA JUDGE 24/03/2023