mohamed ally dalla vs leonard nicholaus seif 2020 tzhclandd 2216 28 september 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO.83 OF 2018 (Originating from Morogoro District Land and Housing Tribunal at Morogoro in Land Application No.247 of 2017 (Hon. P.J. Makwandi, Chairman) MOHAMED ALLY DALLA............................................ APPELLANT VERSUS LEONARD NICHOLAUS SEIF................................ RESPONDENT Date of Last Order: 30.07.2020 Date of Judgement: 28.09.2020 JUDGMENT V.L. MAKANI, J This Appeal originates from Morogoro District Land and Housing Tribunal in Land Application No. 247 of 2017 (the Tribunal). Dissatisfied with the said decision, the appellant has preferred this appeal on the following grounds: 1. That the District Tribunal erred in law and facts by holding that the respondent is the lawful owner of the suit land without the said Respondent proving the material facts pertaining to such alleged ownership on the balance of probabilities. 2. That the District Tribunal erred in law and fact when it held that the mere collection of land charges known as "ngoto" constituted sufficient evidence of ownership of the suit land by the respondent. 3. That the District Tribunal misdirected itself on appoint of fact by delivering a judgment in favour of the respondent without viewing the disputed land. The Appeal was disposed by way of written submissions which were drawn and filed by the parties themselves. However, the court has noted that the appellants submissions in chief were a reproduction of the grounds of appeal and since the said grounds are noted hereinabove, the court will thus continue with the submissions in reply by the respondent. In reply the respondent submitted that, at the Tribunal the appellant and his witness failed to substantiate on why the respondents father (deceased) continued to collect the fee known as "Ngoto"\v\ respect of the disputed land. He said that if respondent's father was not the owner of the disputed land why did the appellant allow the deceased to collect that fee without submitting it to him. He insisted that ground number one did not have any merit. On the second ground the respondent said that, the trial tribunal did not use the collection of Ngotoas the only piece of evidence to justify the ownership of the disputed land to the respondent herein, rather the reasons are clearly stated at page 5 of the Tribunal's judgment where the Chairman stated that, " The tendered evidence proved that the deceased (Mohamed Mustapha Mohamed) and the respondent's father owned different neighbouring land." He said that at the trial tribunal the appellant was supposed to bring witnesses who could testify that they witnessed the agreement between the appellant's father and the respondent's father, that neither the appellant nor the witness managed to defend this argument raised by the appellant in the Tribunal. That the appellant failed to challenge the collection of lease fees known as "Ngoto" during the trial proceedings and therefore he cannot challenge it during this appeal. He supported his position with the case of Kanisius Mwita Marwa vs. Republic [2016] TLSLR 374. The respondent further argued that there is no law that compels the Chairperson before making a decision to visit the disputed land, and so he submitted that the act of not visiting the disputed land would not hinder the Chairperson from delivering justice to the parties. He said this ground lacked merit and legal authority to support it. The respondent observed that the appellant's written submissions lacked the quality of a written submission as per the case of Gervas Masome Kurwa vs. Returning Officer & Others [1966] TLR 32 and he prayed for this court to disregard the appellant's written submissions. Likewise, he prayed for this court to dismiss the entire appeal with costs. In rejoinder the appellant submitted that the respondent was appointed the administrator of the estate of the late Mohamed Mustafa Mohamed who was the respondent at the Ward Tribunal. He said that the respondent filed the new application contrary to the law, the same application resulted to this appeal. He said that the District Tribunal should have considered the decision of the Ward Tribunal so as to arrive at the just decision. He added that the deceased Mohamed Abdullah Mohamed used to collect fees "/Vp<?fc>,,from the peasants on behalf of the appellant's father and that mere collection of fees does not make the deceased owner of the disputed land. He said that the District Tribunal did not consider that Mohamed Mustafa Mohamed was collecting the fees on behalf of the appellant's father. He further submitted that some of the appellant's witnesses testified that the appellants father (Mzee Dalia) was cultivating the suit land since 1983 and the Tribunal disregarded the same in its judgment. Further he said that the respondent did not tender any document to show that the appellants father and Mohamed Mustafa Mohamed owned different neighbouring land. He said that there was an issue of boundaries raised by the respondent and therefore the Tribunal was bound to visit the disputed land in order to solve that issue of boundaries; however, the Tribunal failed to visit the disputed area. Further he argued this court to look on the purpose of the written submission and not the format. In conclusion he prayed for this court to consider his main submission and rejoinder and allow this appeal with costs. Having gone through submissions from both parties, the issue for determination is whether this appeal has merit. The appellant contended that the District Tribunal entered judgment in favour of the respondent herein on the grounds that collection of the fees "Ngoto" by the respondent's father constituted sufficient evidence of ownership of the suit land without further proof on documentary evidence. In reply the respondent said that the appellant and his witnesses failed to substantiate on why the respondent father (deceased) continued to collect the lease known as "Ngoto"\n relation to the disputed land if at all he was not the lawful owner. The records of the District Tribunal reveal that both the appellant and respondent claimed to have inherited the suit land from their deceased fathers. However, neither the appellant herein nor the respondent presented documentary evidence at the District Tribunal to substantiate this claim. It is therefore without doubt that the District Tribunal ruled in favour of the respondent herein basing solely on the assertion that the respondent's father one Mohamed Mustafa Mohamed was collecting the fees known as "/\/goto"on the disputed land who later alleged to be the owner hence the claim by the appellant. In my view, the fact that the respondent's father was collecting the fees while the appellant's father was still alive and there was no dispute between them is strong evidence that he had interest in the disputed land. Had there been any contrary interest then the appellant would have established and proved the same. There is neither proof that the respondent's father was submitting the collected fees "Ngoto" to the appellant's father nor any proof that he was working under the instruction of the appellant's father. In absence of such proof, the presumption is that the respondent's father was collecting the fees "/Vpoto'Trom his own land. Therefore, I find no fault on the part of the District Tribunal's reliance on such evidence as no party is disputing that the respondent's father collected fees on the suit land for two years. The respondent's evidence was heavier than that of the appellant and therefore entitled to win (See the case of HEMED SAID vs. MOHAMED MBILU (1984) TLR 113) The appellant on the other hand claimed that there was an issue of boundaries, however, the District Tribunal failed to visit locus in quo. I have made thorough perusal of the proceedings of the District Tribunal just to find that there was no issue on conflict of boundaries. Both parties stated that their fathers had neighbouring lands atTungi. The parties' dispute was not over the boundaries; therefore, it was not mandatory for the District Tribunal to visit the locus in quo. In the case of Nizar M.H vs. Gulamali Fazal Janmohamed (1980) TLR 29 which was cited with approval in Avit Thadeus Massawe vs. Isdory Assenga, Civil Appeal No.06 Of 2017 (CAT-Arusha) it was stated that: "...The visit should be done only in exceptional circumstances by the trial court to ascertain the state, size, location and so on of the premises in question". In the case at hand there was no controversy over the state, size or location of the suit land and therefore there was no need for the District Tribunal to visit the locus in quo as alleged by the appellant herein. In the result, the decision of the District Tribunal is hereby upheld, and I accordingly proceed to dismiss the appeal with costs. It is so ordered. V.L. MAiKANI JUDGE 28/09/2020