Mohamed Edha Awadh

- > X IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOROGORO DISTRICT REGISTRY AT MOROGORO LAND APPEAL NO. 12463 OF 2024 [Appeal from the decision of the District Land and Housing tribunal for Kilombero District at Ifakara in Land Application No 14 of 2021] BETWEEN MOHAMED EDHA AWADH APPELLANT VERSUS MOHAMED SALIM NAHDI RESPONDENT JUDGMENT MRUMA,J The Appellant Mohamed Edha Awadhl instituted Land Application No 14 of 2021 before the District Land and Housing Tribunal for Kilombero District at Ifakara claiming for among other reliefs a declaration that he was the lawful owner of a piece of iand iand forming part of Plot No 568 Block H with a Filling Station known as MEK oNE iocated at Kibaoni area within Ifakara Urban in Kilombero District. After hearing evidence from both sides the triai tribunal dismissed the Applicant's application and advised him that if he wishes to acquire the 1 Respondents land he should follow the laid down procedures including paying adequate compensation to them. Aggrieved with that decision the Appellant has appealed to this court on the following grounds of appeal 1. That the trial chairperson erred greatly to rule that the Appellant did not prove his case while the Appellant showed that he purchased the said piece of land from the Respondent in 2007 and he was in occupation of the said land for more that 13 years before the T'^, 3rd, 5th and 6^"^ Respondents came into the scene alleging that they were the owners of part of the suit land. 2. That the trial Chairperson and tribunal erred to hold that the failure if the Respondent to appear and give testimony gravely undermined the Appellant's case ignoring the fact that the 1^ Respondent filed his written statement of defence and admitted that he indeed sold the said piece of land to the Appellant and the Appellant had no any knowledge as to any defect on the 1^ Respondent title to that piece of land. 3. That the trial Chairperson and tribunal erred to hold that the Appellant wrongly obtained the certificate of title over Plot No 568 Block H Kibaoni Ifakara Town with certificate title No 98133 as the 2nd^ 3rd^ 4th^ 5th g^ci 6th Respondents are customary land owners, yet no concrete evidence was brought to show how they could still own land in an already with certificate of title and they had not shown that they were the ones with ownership of that piece of land. 4. That the trial Chairperson erred to hold that the Appellant did not prove his case over the ownership of the disputed lad despite the fact that the 3^^ Respondent in his testimony clearly showed that the said land where there Is petrol station was originally owned by Isabella Likoko the testimony that was corroborated by SUB. 5. That the trial chairperson erred not adhere or to take into account the principle of law that when two persons or more have competing interests in landed property the person with the certificate of title is always to be taken the lawful owner unless it is proved that the certificate was not lawfuily obtained. 6. That the trial chairperson erred to not hold that the 2"^, 4^^ 5^^ and 6^"^ Respondents having been aware of the Appellanfis of possession of the disputed land from 2007 their actions in 2020 amounted to trespass into the Appellant's land as if they were lawful owners and continued occupation they wouid have not remained silent when their land were sold to the Appellant by the Respondent in 2007 and who immediately thereafter built a petrol station and has been using it for more than 13 years. 7. That the trial chairperson erred in law and fact to dismiss with costs the Appellant claim which was lodged to vindicate his right and he was a bonafide purchaser for value without any notice on any defect to the title of previous owner. 8. That the trial chairperson did not evaluate the evidence presented in the whole course of trial including cross examination where the Respondent made admission on the ownership of the disputed land by the former owner Isabel Likoko who later on sold the same to one Mkama who also sold it to the 1^ Respondent who eventually sold the same to the Appellant and thus they were all aware that the said land was not theirs. 9. That the entire trial was marred with material irregularities that went to the root of the matter and the judgment and decree emanating therefrom cannot be maintained. At the hearing of this appeal parties were represented. The Appellant was represented by Dr Rugemeieza Nshaiia learned advocate, the first Respondent was represented by Mr John Carol Chogoro and Ms Levina Mtweve while the second to sixth Respondents were represented by Mr Hamza Shaban and Mr John Kambamwene also learned advocates. The appeal was argued by way of written submissions. Dr Nshaiia argued the first, fourth and eighth grounds together and then proceeded to argue the remaining grounds seriatim. Arguing in support of first fourth and eight grounds, the learned counsel contended that^017 the evidence on record the Appellant purchased the suit Plot (i.e. Plot No. 568 Block "H" Located at Kibaoni Ifakara In Kilombero district) from the first Respondent in 2007. He said that the evidence shows that after buying it he caused the same to be surveyed and consequently he obtained a Certificate of Title over the said piece of land. According to Dr Nshaiia, this fact was admitted by the first Respondent in his Written Statement of Defence. Further to that Dr Nshaiia submitted that there was evidence from Omary Ally Musa (SMI),the donee of the Power of Attorney and Chrisogonus Paschal Uyalo a Land Surveyor and Mapping Officer (SM2), to the effect that the Appellant purchased the suit plot from the first Respondent in 2007. The learned counsel stated that there is also evidence from Shaban Hussein Ally (SLI4) and that of Hamisi Ally Mahuhu that corroborated the Appellant's evidence in support of his claims over the suit land. He said that evidence from both side shows that the said land was originally owned by one Mama LIkoko who sold It to one Mkana who sold It to Mohammed Sallm Nahd who sold It to the Appellant. The testimonies of SU-1 and SU-4 also corroborated without a shadow of doubt that the orlglnal.land owner was none other than Mama LIkoko. The Issue that the said land originally was owned by Mama LIkoko who sold It to one Mkana who later on sold It to Mohamed Sallm Nahdl was clearly established. Mohamed Sallm Nahdl sold the said land to the Appellant. The chain of ownership was complete. On the second ground the learned counsel submitted that In his Written Statement of Defence the first Respondent admitted that he sold the said land to the Appellant and stated that the fact that he did not come and testify does not In any way undermine the Appellant's case since he had In fact admitted the claims as per Order IX rule 8 of the Civil Procedure Code Cap 33 R.E. 2002. On the 3'"^ ground that the Respondents are customary land owners of the suit land, the learned counsel submitted that no concrete evidence was given to show how they could still own land In an area which had already been surveyed and a Certificate of Title granted to another person and they had not shown that they were the ones with ownership of that piece of land. Submitting on the fifth ground counsei for the Appeiiant submitted that there is evidence showing how he acquired the suit iand way back in 2007. He said that the chain of ownership showed cieariy that he bought the said iand from the iast person who had bought it from the previous owner, who aiso bought it from its previous owner. The iearned counsei cited the case of Amina Maulid Ambali & Others vs Ramadhani Juma Civii Appiication 173 of 2021 where it was heid that one who has the titie is presumed to be the owner.. Submitting in support in support of the sixth ground, the iearned counsei submitted that during the triai it was cieariy estabiished that the Appeiiant bought the said iand in 2007, the map of the iand was registered in 2007 and from that time no one bothered to ciaim ownership against him. He said that the evidence showed that Mama Likoko's ownership was iong before 1964 therefore other Respondents cannot ciaim ownership of the very iand and that if they had any ciaim, their daims were time barred since any ciaim for trespass must be filed within three years and they did not do so. He argued this court to find that the Respondents were at fault and uphold the ground of appeal with costs. Submitting with respect to seventh ground the iearned counsei stated that when the Appeiiant bought the said iand from the 1^ Respondent,the first Respondent was a bona fide purchaser for value for more than 13 years and he was in occupation without his title to the land being challenged. He cited the case of Peter Adam Mboweto v. Abdallah Kulala and Mohamed Mweke [1981] T.L.R 335 which quoted an old English case of Pilcher v. Rawlins (1872) 25 L.T 921. On the 9^^ ground the learned counsel submitted that the totality of the entire proceedings and the way the matter was handled is a complete material irregularity. He referred the court to pages 44 and 45 of the typed proceedings where it shows that the Tribunal conducted locus in quo visit and contended that there is no evidence taken from the parties except a summation that the Land Surveyor showed the boundaries of the area. No evidence of the parties was recorded at the locus in quo and that there is nothing to show what was done during the visit which was in complete violation of the principles of conducting locus in quo. He cited case of Nizar M.H Ladak vs Gulamali Fazal Janmohamed [1980] TLR 29 which he said is instructive and indulged the Court to find that failure to follow all that is directed in that case rendered the whole trial materially affected. Responding to the submissions of the counsel for the Appellant counsel for the second to sixth Respondent raised a point of objection to the effect that the Appellant didn't file his written submissions as scheduied and ordered by the court. He said that failure by the Appellant to comply with the scheduling order is tantamount to failure to appear and prosecute the case. He cited the case of Fredrick Mutafungwa vs. CRDB 1996 LTD and others, land case No 446 of 2004 CAT (unreported), and Ms.Olypia kowero vs Editor of the express and three others, Civil case no. 176 of 2005. The learned counsel for the Respondent also raise the issue of iimitation of time contending that the appeal was filed out of the prescribed time. He said that the record indicates that the impugned decision was delivered on 1^*^ of March 2024 while the present appeal filed in court on 28'^'^ May 2024 which is a period of 88 days while section 41 (1) and (2) of the Land Disputes Courts Act CAP 216 R.E 2019 requires an appeal from District Land and Housing Tribunal to be filed within 45 day after the impugned judgment is delivered. Submitting in opposition to the merits of the appeal, the learned counsel contended that the Appellant's claims that he is the owner of Plot no. 568, Block 'H' and had a Certificate of Title no. 98133 was not proved. He said that the trial tribunal was correct to find that the Appellant was a trespasser since 2020 after it was satisfied by the Respondents'evidence which was to the effect that Plot No 568 Block 'H'is comprised in a portion of land formerly owned by Isabella Likoko and was also co-owned by Kiussein Ally Juma (since 1964), Pius Ngahawa (since 1979) and Hamis Ally Mahuhu. The learned counsel contended that on the evidence on record the Appellant miserably failed to lead evidence to show how these portions passed onto him to constitute part of Plot 568 Block'H' He said that the trial Tribunal correctly held that since ownerships of those other portions were not extinguished in accordance with the law, the portions still belonged to their previous owners, except the portion that was owned by Isabella Likoko, which, in itself did not add any portion to Plot No 568 Block 'H'. As regards an alleged admission of the first Respondent in his written statement of defence, the learned counsel submitted that the evidential value of admissions contained in pleadings pursuant to the provisions of Rule 4 of Order XII of the Civil Procedure Code, if the Appellant was of the view that there was admissions on the part of the first Respondent he ought to have applied for judgment on admission and that since he didn't do so he cannot be heard blaming the trial tribunal for not giving him judgment on admission against the said first Respondent. He cited the case of CRDB Bank Pic v Francis Esau Mwinuka [2021] TZHC 10 Commercial Division. The iearned counsel submitted that the appeal has no merits for the following reasons 1. first. The Appellant has failed to explain how the respondents, being co-owners of the land comprising Plot 568 Block 'H' could turn to be invaders on their own land; 2. Secondly, much as there was an alleged admission in the Written Statement of Defence filed by the first Respondent, the Appellant's failure to apply for necessary orders declaring that fact admitted was proved is fatal; 3. Thirdly, there is no merit in the allegations that the visit to the locus in quo had any shortcomings. The visit clearly established that the suit plot had other occupier who had not been compensated as a prior condition for the Appellant to claim a valid title. In determining this appeal, I would first deal with the points of law raised by the Respondents regarding non-compliance with the court scheduling order and time limitation of this appeal. Starting with the issue of filing written submissions beyond the time set and without leave upon reviewing the date the Appellant's written submissions was filed in the system, it is clear that it was filed within the court's stipulated timeframe that is to say on 20^^ December 2024. It is 11 only a hard copy which was presented in court after the scheduied time. The system shows that electronic copy was filed within the scheduied time. Secondly on the time the appeal was filed, it is the position of the law under section 19(2) and (3) of the Law of Limitation Act, [CAP. 89 R.E 2019] that there is an automatic exclusion of the period of time spent for obtaining a copy of judgment, ruling, decree or order sought to be challenged [See the decision of the Court of Appeal in the case of Bukoba Municipal Council vs. New Metro Merchandise, Civil Appeal No. 374 of 2021, CAT, at Bukoba which cited its/own decision in the case of Alex Senkoro and 3 Others vs. Eliambuya Lyimo(As Administrator of the Estate of Fredrick Lyimo, Deceased), Civil Appeal No. 16 of 2017 CAT (unreported) where it was held that:- 'We entertain no doubt that the above subsections expressiyaiiow automaticexciusion ofthe periodoftime requisite for obtaining a copy ofthe decree orjudgment appeaied from[in computing]the prescribed iimitation period. Such an exclusion need not be made upon an order of the court in a forma! application for extension of time/' [Emphasis added] 12 However,though the time spent while waiting for copies of judgment and decree or order appealed against is automatic but there must be proof on the record on when the said decision was delivered, when the same was requested for and when the same was supplied. Meaning that the record has to speal^itseif on how the matter was dealt with from the date of the impugned decision to the time of filing the appeal by showing the series of events. In the present matter the impugned judgment was delivered on March 2024, and this appeal was filed on 27^^ May 2024. There is a letter dated March wherein the Respondent requested to be supplied with copies of the impugned judgment, and there is a copy of the decree which shows that he was supplied with the same 14^*^ March 2024. These are 14 days that must be automatically excluded from the period of limitation. As correctly submitted by the counsel for the 2"^ to 6^"^ Respondents, under the provision of section 41 (1) and (2) of the Land Disputes Courts Act [Cap 216 R.E. 2019], the prescribed period of limitation for filing an appeal is 45 days. The present appeal was filed 88 days from the date the impugned judgment was delivered. If the 14 days which were spent in seeking copies of judgment and decree are 13 excluded then the period of appeal ought to have started to count from 15*^^ March 2024 and would have expired on 30^^ April 2024. This appeal was presented for filing on 28^^ May 2024 well beyond 45 days prescribed by the law. The appeal was therefore filed out of time and no leave was sought and obtained for extension of time. That point alone is sufficient to dispose this appeal by dismissing it in terms of section 3 of the Law of limitation Act [Cap 89 R.E. 2019], however I find it prudent to proceed and discuss the merits of the appeal for purposes of conclusively determining the matter. As the record would bear testimony the Appellant Mohammed Edha Awadh instituted Land Application No 14 of 2021 praying for among other orders (i) A declaration order that the Applicant is the lawful owner of the suit premises. During the trial he (Mohammed Edha Awadh), called two witnesses namely:- 1. Omary Ally Musa(SMI),a lawyer and donee of power of attorney of the said Mohammed Edha Awadh, the Applicant (Appellant herein) and; 14 2. Chrisogonus Paschal Uyaio (SM2), Land Technician and surveyor working with Town Pianning Department in the Land offices at Kiiombero District. Aii grounds of this appeai boiis down to a complaint that the tribunal erred in law in holding that the Appellant failed to prove his claim. Legally for a claim to be proven, it is the Claimant's/Applicant's duty to present evidence that establishes his ownership of the disputed land. This duty is embodied in section 110(1) of the Evidence Act[Cap 6 R.E. 2019] which provides that:- "Whoever desires any court to givejudgmentas to anylegalright or liability dependent on the existence offacts which he asserts he mustprove that those facts exist" In the case at hand the Appellant paragraph 6 (i) of his Application assered thus:- "The Applicant Is the owner of the suit land described above which he purchased from the 1^ Respondent In 2007 and has occupied and peacefully used It for a Filling Station business all along" 15 As stated hereinbefore, two witnesses were called to testify on behalf of the Appellant. However, the Appellant himself who claims to have purchased the suit land didn't testify In this case. Similarly the first Respondent Mohamed Sallm Nahd from whom the Appellant alleges to have purchased that suit land didn't testify In this case. In other words neither the alleged vendee nor the vendor did testify In this case. In the circumstances, therefore the crucial question Is whether the Appellant did prove his claim that he was the rightful owner of the suit land. In my view he did not. When the question Is whether any person Is owner of anything of which he claims to be the owner the burden of proving that he Is the owner Is on him. In the case of Mary Agnes Mpelumbe Versus Shekha Nasser Hamad Civil Appeal No 136 of 2021 the Court of Appeal held Inter alia that:- '\...the Court willsustain such evidence thatis more credible than the other on a particular fact to be proved. As stated above neither the alleged vendor (I.e. first Respondent) nor the alleged vendee (the Appellant) gave his testimony In this case. The only evidence of ownership of the Appellant came from Omary Ally Musa (SMI) the person who had power of attorney of the Appellant. According to a special power of attorney given to Omary 16 Ally Musa, he was authorized to act for the Appellant and in appellant's name I respect of Civil Application No 14 of 2021. A power of attorney is a legal document where someone called the donor appoints another person called the attorney (or donee) to act on his behalf or manage his affairs on his behalf. Generally a power of attorney holder can give evidence in court, but only regarding matters within his personal knowledge and actions he took while acting under the power of attorney. He cannot testify about facts soleiy known by the donor or his principal he represents. He is not the substitute for the principal therefore power of attorney holder cannot give evidence about matters that only the principal has personal knowledge of. Admittedly SMI was not present when the Appellant was purchasing the suit land from the first Respondent and he didn't witness the sale agreement be signed between the Appellant and the first Respondent. Similarly the Land surveyor SM2 who also testified to support the Appellant's claims of ownership was not present when the Appellant was purchasing the suit land allegedly from the first Respondent. Their evidence is hearsay. Section 115 of the Evidence Act [Cap 6 R.E. 2019] provides clearly that:- 17 A "//7 Civil proceedings when any fact is especiaiiy within the knowledge ofany person the burden ofproving thatfact is upon him'' In the present case the fact concerning sale agreement between the Appellant and the first Respondent was a fact especially within their knowledge and the burden was on them to prove the same. They didn't do so and no reason was given as to why they didn't testify In this case. The fact that the first Respondent admitted In his written statement of defence to have sold his land to the Appellant Is not a conclusive proof that the Appellant acquired ownership of the suit land or any portion thereof. Written statement of defence Is a pleading and like any other pleading It Is mere assertion or statement of belief which Is subject to proof. The alleged admission was contested by the 2"^, 5^*^ and 6^*^ Respondents and the said first Respondent did not bring evidence to prove his assertion first / that he was lawful owner of that land and that he It to the Appellant. Looking at the evidence of SM2 It would appear that when he received the request to survey Plot No. 568, Block H, and In the course of surveying the land he discovered that within the plot, there was a fuel filling station and houses owned by Indigenous people. This shows 18 > - w that part of the and forming plot No 568 Block""H" was being occupied by Indigenous and nothing was said about any compensation paid to them. That being the case, apart from the fact that this appeal was filed out of time I find It to have no merits even If It was to be decided on merits. Accordingly this appeal Is dismissed with costs to the Respondents save for the first Respondent who vehemently argued In support of the Appellant's appeal. The first Respondent will pay costs of this appeal and the proceedings before jointly and severally with the Appellant. It Is so ordered. \ A.R. MRUMA / JUDGE ■ \// 21. 2. 2025 19