Mustafa Sangare vs Bahati Kazimili

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA LAND APPEAL NO. 27075 OF 2023 (Originating from Application No, 44 of2023 at the District Land and Housing Tribunal for Mpanda at Katayi) MUSTAFA SANGARE ............... ...........APPELLANT VERSUS "WF' F, BAHATI KAZIMILI................................ ..............„L.......... .....RESPONDENT ■A "FfeTFL. W JUDGMENT The appellant herein is aggrieved with the. decision of the District Land and Housing Tribunal for Mpanda at Katavi (herein forthwith to be ' -'t: - -■/; y <? referred as trial tribunal) in Application No. 44 of 2023, whereas the •J.'j'F.;. ■ -A- respondent was declared victorious. At the trial tribunal/ the respondent applied for vacant possession of a business cabin 'kibanda' which is located at Azimo area, Majengo Ward at Mpanda Municipality which is worth Tshs. Two Million only (2,000,000/=). In his plaint, he stated to have bought the same in the year 2016 from one person known as Harrison Mariki who was the lawful owner of the said cabin. That, as the cabin was not fully built, the respondent intended to finish up the building, but to his astonishment, the appellant started i renovating and finishing up building it, an act which made the respondent advance his claims to the trial tribunal. The appellant being dissatisfied, he opted to seek for his right of possession over the said cabin through this appeal in which it consists of four (4) grounds of appeal. I find it best to reproduce the said grounds of appeal for ease of reference as follows herein: - 'W ’ - i'-L* $*-■- Iv’’ 1. That, the trial tribunal erred in law and fact byentertaining the dispute which was filed without a . . . proper Certificate of conciliation as per the la w, worse enough such certificate was neither pleaded nor tendered:during the hearing of the suit. 2. That, the trial tribunal erred In law and fact by hearing without non -joinder Of necessary parties. 3. That, the trial tribunal erredin law and fact to decide the dispute in favour pf the respondent who failed to prove his ownership as per the Jaw. 4. That, the trial tribunal erred in law by recording evidence without adhering to the legal requirements. From the grounds above, the appellant prays for this court to find merit in this appeal and proceed to allow it in its entirety and thus, the 2 judgement and decree of the trial tribunal to be quashed and set aside and the respondent to be condemned to bare the costs of this appeal and any other relief this court deems fit to grant. Oh the hearing date, the appellant appeared for himself as he had no legal representation whereas the respondent enjoyed the legal services of Mr. Kurwa Hezron Ngunga, learned Advocate. As both side's: were ready "Wk to proceed, the appellant sought leave of this court that the hearing be conducted by way of written submissions.: Mr. Ngunga.did not object to this prayer, and it was granted by this court, therefore scheduling of dates ^7 j jV ^5.. V f'i > 1-. for filing the respective submissions were set in which, both parties fully adhered to the scheduled dates. 'W In his submission, starting off with the first ground of appeal, the appellant stated that it is the requirement of the law under Section 45(4) of the Written Laws (Miscellaneous Amendment) (No. 3) Act. 2021 which amended Section 13 of the Land Disputes Courts Act, ’’k ■?'ir J’ Cap 216 R.E. 2016. The section provides that: - "Notwithstanding subsection (1), the District Land and Housing tribunal shall not hear any proceeding affecting the title to or any interest in land unless the ward tribunal has certified that it has 3 failed to settle the matter amicably, Provided that, where the ward tribunal fails to settle the land dispute within thirty days from the date the matter was instituted, the aggrieved party may proceed to institute the land dispute without the certificate from the ward tribunal" The appellant then cited the case of Issa Iddi Kauzu vs Ally Abdalla WWF Mkoko & Another (Land Appeal 8 of 2022) [2O22JTZHC 11910 (24 August 2022) available at tanzlii.org where it was held that the District land and housing tribunal cannot determine thd dispute which has not been mediated before the ward tribunal He then clarified that; in the case at hand there was no proper certificate of conciliation which depicted that the conciliation process has failed before the ward tribunal; that, the said certificate was not pleaded in the tribunal form also neither of the parties provided evidence that the matter was mediated at the ward tribunal, and added that, what is found in the court file is the decision of the ward tribunal and not envisaged certificate, that worse enough even the decision was not tendered as evidence to form part of the records. 4 The appellant again referred this court to the case of Sophia Hatibu Mwamba vs Edga Thadeo Kapama (PC Civil Appeal 26 of 2023) (2024] TZHC 1841 (6 May 2024) available at Tanzlii.org though on marriage context but the scenario is similar with the scenario at hand, where the court held that failure to admit the conciliation certificate to form part of the records is fatal, the remedy thereof is nullification of the entire proceedings. Submitting for the second ground of appeal, he stated that, it is the stance of the law that the failure to join necessary parties vitiates the proceedings per the celebrated case of Claude Roman Shikonyi vs Estomy A. Baraka & Others (2019) T.L.R139 (CA) In relation with this case at hand, he submitted that the respondent was a buyer who bought the suitland from one Harrison Marick who is the seiler, the respondent also claims to have bought a suitland from other party one Mashaka Lubuye. That, those sellers were necessary parties to be joined in this suit pursuant to the decision in the case of Juma Kadala vs Laurent Mnkande [1983] TLR 103 Where it was stated that, the failure to join a seller of the suitland is fatal and the same vitiates the proceedings. The appellant is convinced that the failure to join sellers 5 of the Suitland is fatal as no: effective decree could be passed without touching the interests of the sellers either way, In making sure his clarification is understood, the appellant highlighted the decision in the case of David Kinunda vs Moses C. Kinunda (Land Case No. 25 of 2013) [2013] TZHC 2157 (5 December 2013) available at tanzlii.org where it was also emphasized thatfailure fo join seller was a fatal irregularity that vitiates the proceedings^^ - . Submitting for third ground of appeal, the appellant-reminded us that civil cases are decided on the balance ^probabilities and cited the case of Anthony M. Masanga vs Penina (mama Mgesi) and Another [2015] T.L.R 46 (CA)...in which it was held that: - "It is a common knowledge that in civil proceedings, the party with legal burden also bears the evidential burden and the .standard in each case is on the balance of probabilities''. He proceeded that, there is no dispute that the applicant (respondent) claims to buy the suitland from one Harison Marick in 1/08/2016 but he failed to tender any contract of sale to prove the buying of the said plot as per Section 64(l)(a) of the Land Act Cap 113 R.E 2019 which provides that; 6 "A contract for the disposition of a right of occupancy or any derivative right to it or a mortgage is enforceable in a proceeding only if (a) the contract is in writing or there is a written memorandum of its terms." The appellant referred this court to the case of Yahayp Ally Mozzy vs Mariam Mustapha (Land Case Appeal No. 05 of 2023) [2024] TZHC 309 (21 February 2024) available at tanzlii.pirg at page 12 it ■W. was held that; 1ft. "Let me hasten to point out; that 'one of the mandatory requirements in the disposition of a right of occupancy is that the disposition should be in writing for it to be operative.z/ He added that, similar stance, was stated in the case of Nitin Coffee Estate Ltd and 4 Others vs United Engineering Works [1988] T.L.R 203 where it was insisted that the contract of sale of land is operative: if it is in writing. In relation to this case at hand, he stated that, failure for the respondent to tender written contract to justify the sale of landed property entails that his claims were not justified. The appellant did not stop there, he submitted even further that, it should be borne in mind that the one who instituted the application before the 7 trial tribunal was the respondent, hence the burden of proof could not shift from him to the appellant without him (the respondent) to discharge the same, that, this is in accordance with the case of Tanzania Cigarette Co. Ltd vs Mafia General Establishment [2020] T.L.R 637 (CA) which authoritatively held that; "It is again trite that the burden ofproofnever shifts to the L 'J ' ■. V' adverse party until the party on whom the onus /ies discharges his and the said burden is not diluted on account of the weaknessofthe opposite party’s case" < (Emphasis Supplied) It is the appellant view that the trial tribunal erred to use alleged weakness on the appellants case to award the suitland to the respondent contrary to the law, without the respondent proving his allegations, and that there was ;also a mixture of issues in the trial tribunal's judgment since it only considered who was the first to acquire the suitland between the appellant and the respondent while the pertinent issue was for respondent to prove his ownership of the suitland per his pleadings filed before the trial tribunal. 8 Submitting for the fourth ground of appeal, the appellant states that the evidence of the trial tribunal was taken in four aspects/categories i.e evidence in chief, cross examination, re-examination and clarification of assessors. That, precedents require after finishing each category, the presiding magistrate/chairman should sign the evidence so as to authenticate the same. The appellant referred the case of Gahungu Igor W ■ Vs Republic (Criminal Appeal No. 191 ofW2?®^[2'O^WZHC ■a. 13585 (3 October 2022) available at tanzlii.org at page 6 and 7. He then added that, another case-, which provideda nice authoritative .iL ' At- 'AX . 1W, decision on similar aspect iWas the case Baraka Imanyi Tyenti vs Tanzania Electric Supply Company Ltd & Another (Civil Appeal 38 of 2019) [2021] TZCA 716(lDecember 2021) available at tanzlii.org at page 5,6,7 and 8. It was his submission that in the present case at hand the trial tribunal did not comply with this mandatory requirement of the law by signing after each witness evidence in chief, cross examination and re­ examination, the same Is fatal and has vitiated the whole proceedings. 9 Basing on the strength of above submission together with list of authoritative precedents and legal provisions pinned in, it is the appellant humble prayer that the present appeal be allowed with orders pertaining to costs. In response, the learned counsel submitted that, on the first ground of appeal he humbly prays that this honorable court.finds the appellants arguments lacking justifications. That, it isi n thei review That , the re was proper certificate of conciliation which was ..annexed to the application to entitle the trial Tribunal to hear and determine the application. That, at utmost the essence of attaching the certificate of conciliation is to show that the parties passed through the conciliation board but they failed to settle the matter amicably thus the applicant had a right to file an application in the tribunal. Further to that, he said the certificate for conciliation tends to entitle the District Land and Housing Tribunal to have jurisdiction to hear and determine the application before it. Thus, in absence of the Certificate of Conciliation which needs to be pleaded and annexed to the application the tribunal can lack jurisdiction to proceed with the matter. This is the position settled under Section 45 (c) of the Written Laws (Miscellaneous Amendments) Act No. 3 of 2021 which amended Section 13 of the Land Disputes Court Act, Cap 2016 R. E 2019. io Mr. Ngunga proceeded that, in the instant matter the said certificate of Conciliation from the Ward Tribunal which basically tend to be prepared by the laypersons was pleaded under Paragraph 6(b) of the Application and the Respondent (by then SMI) testified during the trial at page 8 &9 of the typed proceedings that he went to the ward tribunal for mediation but neither the appellant nor the alleged owner appeared for conciliation. & The said facts under paragraph 6(b) of the Application and page 8-& 9 of the trial tribunal's typed proceedings were neither specifically denied/disputed by the appellant in his Written Statement of Defense nor cross examined by the appellant during the trial which entails that he admitted that fact and he is estopped from denying the same at this stage. The learned counsel insisted that, it is the settled position of the law in the case of Bomu Mohamed vs Hamisi Amiri, Civil Appeal No. 99 of 2018 [2020] TLR 144at page 12 where the Court held that; .7/7 the same parity of reasoning, we observe in Nyerere Nyague vs. R/Criminal Appeal No. 67 of 2010 (unreported) that: "As a matter of principle, a party who fails to cross examine a witness on certain matter is deemed to have accepted that matter and will be estopped from asking the trial court to disbelieve what the witness said. ii He then added that, on whether the certificate of conciliation was supposed to be tendered, it is their view that since the said certificate was annexed to the application the trial tribunal took judicial notice on it and this court can do the same as it is a fact which need no proof as per Section 59 (l)(d) of the Evidence Act, Cap 6 R.E 2022. That, this is also the settled position of the law as it was observed by this court in the case of Isaack Simuyemba & Another vs Leonard Chapelela Simfukwe, Misc. Land Appeal No. 10 of 2023 (unreported) alpage 14 when this r.., Court was faced with the same circumstance, it took judicial notice on the seal of the ward tribunal appeared in the annexed judgement to the petition of appeal. In that regard it is their .view that the first ground of appeal has no merit hence he prays.for the same to be dismissed. Submitting against-the second ground of appeal where the appellant •I J: ' ’-V' contends that the failure to join the seller of the land in dispute is fatal irregularity, vitiates the proceedings and no effective decree could pass without touching the interests of seller, the learned counsel submits that his side is in disparity with the arguments of the appellant on the ground that the cause of action which the respondent instituted the case against the appellant is trespass thus the appellant was the necessary party and not any other person. He submitted further that it is trite law that the .12 foundation of an action for trespass to land is possession as it was held in the case of Jela Kalinga vs Omari Karumwana [1991] TLR 67 that:- "Although in law neither of the two parties had a better title than the other, the foundation of an action for trespass to land is possession, ■ anyone who was in possession or who is deemed to have been m possession at the time of the trespass % could bring an action for trespass." Mr. Ngunga then added that, on that basis the appellant's submission that .'■<F the seller has to be joined as he was the owher has no merits as trespass to land can be instituted..-by the possessor of the land against the trespasser and wrongdoer as a necessary party. In that regard, he prays that this second ground of appeal be dismisses for being devoid in merit. Coming to the third ground of appeal the learned counsel submitted that, he contests the submission made by the appellant on the reasons that the respondent did prove his ownership as he testified that he purchased the said cabin in dispute from one Harison Maliki who was summoned and testified as SM2. That, the fact that the respondent purchased the land in dispute from Harison was not cross examined by the appellant which 13 entails admission as held in the case of Bomu Mohamed vs Hamisi Amiri (supra). In addition to that, the learned counsel stated that, even where the same would be cross examined the respondent would be bound to tender the sale agreement if the vendor (SM2) was not summoned<o testify or where SM2 disputed his transfer of the land in dispute to the respondent. That, it is the principle of the law that there is no need ofproofofowriership in cases of trespass as trespass is an interference to possession, that is why even a tenant may sue his landlord for trespass if he encroaches upon his .■ lawful possession. He stressed that, this is a legal position in the case of Geita Gold Mining Limited vs Twaliblsimail, Civil Appeal No. 103 A? of 2019 CAT at Mwariza (unreported) at page 10. In that regards, he insisted that, he finds no merit on the said ground as the respondent proved his case to the required standard. Submitting against the fourth ground Mr. Ngunga submitted that, this "■ r .-'’Wjr ' v;.- ground has no legs to stand and is baseless for lack of merit. That, it is trite law that the court records are presumed to be correct and can never be lightly impeached by theoretical proposition as the same accurately reflect/represents what actually transpired during the trial. That, this is the position of the law as it was held in the case of Haldan Sudi Vs 14 Abieza Chichil [1998] TLR 527. That, the appellant's allegation that the trial chairman did not sign after the closure of evidence of each witness amounts to the impeachment of the court records as the same is not supported with the trial tribunal's proceedings, which to that effect need to be substantiated. In that, he insisted there is no basis on the appellant allegation on?the % w ■ ground that the typed proceeding of the trial tribunal certainly'revealed that the trial chairman did sign at the.epd of testimony of each witness .-iff.?' and thus the appellant's allegations are unfounded, and in view of the arguments and the authorities herein above he humbly prays for this Honourable Court to dismiss the appeal-with costs. In rejoinder, th6 appellant highly reiterates what he had submitted in chief. However, maintaining in his submission as far as the first ground of appeal is concerned,- he states that mere presence/annexure of the decision of the ward tribunal was not enough, the conciliation certificate must have been tendered as per the recent decision of Halima Japhet Mayuya [As Adminstratix of the Estate of Late Amina Msigalo Nttahosigaye] vs Alquadiriya Salama Center and 2 Others Land Appeal No. 5302/2024, HCT at Morogoro (Unreported) available at tanzlii.org at page 15,16,17 and 18 where it was emphasized that 15. certificate of conciliation from ward tribunal must be pleaded and tendered as exhibit for it to have a legal effect. Rejoining on the second ground of appeal, the appellant submitted that it is the stance of the law that failure to join necessary parties vitiates the proceedings as he had stated in submission in-chief, that, if each party, (appellant and respondent) were claiming to have bought the suitland % from other parties (who were not parties before the. trj|p|tyjnli) there was a higher possibility of infringement of boundaries and probably resulting to the decree which will affect interests of other persons who were not afforded right to be heard. Therefore, the appellant maintains that the sellers were necessary parties to be joined in the application before the tribunal. He then referred to the case of Jela Kalinga^ cited by the respondent is very distinguishable, because even in the suit of trespass, the first element y.M-j •‘i .-Ai.i ' ’?■ r- which has to be proved by claimant is ownership, and in order to prove ownership sellers were incumbent parties to prove whether they had title to pass to the parties. 16 By saying so, he added that even the case of Geita Gold Mining Limited (supra) is not applicable in the circumstance because the case at hand does not involve a landlord and a tenant. Coming to the third ground of appeal, the appellant rejoins that the sale agreement was incumbent to be tendered in the tribunal so as to prove ownership of the respondent, that, the reply submission by respondent WWhx Wk on this ground does not have merit because the one who instituted the Wk- " application at the tribunal was the respondent, Hence He had a burden of proving his allegations the burden which could notKsfiift to the appellant herein without respondent to discharge the same fully as per the case of Tanzania Cigarette Co. Ltd (supra).;-■ Rejoining on the last ground, the appellant insists that it was not his intentions to impeach the .court records, but the records speaks for themselves, what is required is that after finishing each category of testimony i.e. evidence in chief, Cross-examination and Cross examination the chairman must sign the same, and not signing at the end of testimony as a whole (that was what was done by chairperson of the trial tribunal). He again insisted that the case of Halfan Sudi (supra) \s distinguishable in these circumstances because as he submitted in-chief and that he has 17 not impeached the tribunal records. It is his prayer that this present appeal be allowed with orders pertaining to costs. I should firstly thank both sides for the exhaustive research done and submitted forthwith in the attempts of aiding this court to resolve this matter. However, given the records before me, the grounds of appeal and the submissions filed respectively before this court,T am fortified that Ws appeal has merits and its determination should not detain much of this 'W ' "W1' court's time. 'W IA'Ac -'', From the grounds of appeal, the first ground of appeal suffices without a doubt to dispose of this appeal. The ground states that: - "That, the trial tribunal erred in, law and fact by entertaining the dispute ! which' was fled without a proper certificate of conciliation as per the law, worse enough such certificate was neither pleaded nor tendered during the hearing of the suit.” As rightly submitted by the appellant that, it is the requirement of the law under Section 45(4) of the Written Laws (Miscellaneous Amendment) (No. 3) Act. 2021 which amended Section 13 of the Land Disputes Courts Act, Cap 216 R.E. 2016. The wording of the section above does not need to be clarified even further since it clearly 18 means that, it is mandatory for any proceedings affecting the title to or any interest on land to be referred to mediation before being instituted in the District Land and Housing Tribunal The mandatory nature of the section above is profound by the inclusion of the word "shall" in which, in any written law whenever such mandatory words are used, they confer to the mandatory adherence. With all due respect to the counsel for theiresporigtent^s§^^tibmitted that the said requirement was adhered by his client ?and thus filed the application at the trial tribunal. The learned counsel referred this court to paragraph 6b of the respondent's plairit and also pages 8 and 9 of the trial tribunal's typed proceedings to Suggest that the respondent did attend at the 'Ward Tribunal for mediation but the appellant never attended and that he annexed the said certificate for mediation in his plaint.:/ Again, reading between the lines the wordings of the Section 45(4) above, and looking at the so cold certificate of mediation, it seems that the respondent filed his claim at the Ward Tribunal for mediation on the 17th day of June, 2022 and on the same day, he had his application filed at the trial tribunal. Nevertheless, the contents Of the said certificate do not depict the reality, because the respondent had testified that at the ward 19 tribunal the appellant never attended for mediation, and yet the certificate states that the evidence of the appellant was not sufficient to convince the ward tribunal to draw its decision in his favor, where did the ward tribunal get the evidence of the appellant if he did not attend the mediation? I wish to reproduce the extract of the said certificate as hereunder: - . •s o!;. "CHETI CHA USULUHISHIWA MGOGORO WAARDHI ^&~r. 'ifif Baraza hili Hmepokea na kusikiliza-shauri iaiardhi kati ya BAHATIKAZIMILI Mdai dhidiya % I ? ;■ ■■ ।i j i MUSTAFA SANGARE na.................................Wadaiwa . d!:f ambalolimewasilishwabarazani na "by BAHATIKAZIMILI •I:'. zS.'r- Yi. /V Kuthibitisha kwamba baraza hili limesuluishwa kabisa • •■•I• >> <1 ;£•••■- kuwapatanisha wadaiwa hawa yaani mdai na wadaiwa/mdaiwa kwa hiyo maoni ya baraza ni haya KIBANDA CHA BIASHARA NIMALI YA BAHATIKAZIMILI KWA SABABUUSAHIDI WA MDAIWA HAUKUTOSHELEZA 20 BARAZA KUTOA MAAMUZI YA KWELI HIVYO BARAZA LINAOMBA KUKAZIA MAAMUZI YAKE NA KUWEKA ZUIO KWA MTU YEYOTE ASIFANYE KAZI HILO. From the extract above, it is not revealed if there was any mediation between the parties but rather, the tribunal entertained the dispute for W. hearing and concluded that the evidence of .the appellant was^not sufficient and so the cabin belongs to the respondent. The-shortfails found within it and given the testimony of the respondent at-the trial tribunal, it is safe to conclude that this matter was hot-referred to mediation at all contrary to the cited section, in which it renders the entire proceedings at the trial tribunal a nullity since adhering to the procedure is not an option, but it is rather a mandatory requirement of the law. Considering the determination above, as I hinted earlier that the first ground suffices to deal with this appeal amicably, I proceed to aliow the 'ijV.'U l! .if?- ground and declare that there is no need of determining the remaining grounds. That being said and done, this appeal is allowed in its entirety. The proceedings of the trial tribunal are nullified, the decision and decree thereto are hereby quashed and set aside respectively. 21 This matter should be referred to mediation as the law requires, and the status remains as it was before the aggrieved party instituted the application at the trial tribunal. Costs to follow the event. It is so ordered. Dated at Sumbawanga this 03rd day of September, 2024. M. MWENEMPAZI JUDGE Judgment delivered this 3rd day of September, 2024 partly virtually as the appellant was at the Resident Magistrates Court at Mpanda and Mr. Kurwa Hezron Ngunga, Advocate for the respondent. The respondent is absent. T. M. MWENEMPAZI JUDGE 03/09/2024 22