NKAMBA MATOGOLO for Tanzlii

THE HIGH COURT OF TANZANIA GEITA SUB-REGISTRY AT GEITA LAND APPEAL NO. 60537 OF 2024 (Arising from the Judgment and Decree of the District Land and Housing Tribunal of Mbogwe at Mbogwe in Application No. 12 of 2023) NKAMBA MATOGOLO……….…………………………. APPELLANT VS JOSEPH CHARLES NDEGU………..……...…….1st RESPONDENT MATHEW CHARLES NDEGU (Administrator of the late CHARLES NDEGU) .…….…….……. 2nd RESPONDENT JUDGMENT Date of last Order: 10/09/2024 Date of Judgment: 08/10/2024 K. D. MHINA, J. This is the first appeal. It stems from the District Land and Housing Tribunal ("the DLHT") for Mbogwe in Land Application No. 12 of 2023, whereby the appellant in the instant appeal, inter alia, claimed against the 1|Pa ge respondent to be declared a lawful owner of unsurveyed land located at Nyakafuru Village in Nyakarufu Ward within Mbogwe District, respondents be ordered to vacate from the suit land and general damages. The brief facts that led to the institution of Application No. 12 of 2023 at the DLHT are that the appellant alleged that in 2010, she purchased suit land from the late Charles Ndengu, the respondents' father, by oral agreement for TZS 300,000. After buying the suit land, she let her son Tene Matogolo farm on it. She further alleged that during Charles Ndengu's lifetime, there was no dispute; however, after he passed away, one of his sons in 2022 claimed that the suit land belonged to the Ndengu family. According to her, the “saga” started after a gold deposit was discovered in the suit land. They referred the dispute to Hamlet's Chairman, and it was resolved for each party to get a parcel of land. At the end of 2022, the sons of the late Charles Ndengu again claimed that the land belonged to their family and trespassed into the land. 2|Pa ge Therefore, this background prompted the applicant to rush and seek redress at the DLHT for Mbogwe. On their side, the respondents alleged that the suit land belonged to the family of the late Charles Ndengu, who purchased it in 2013 from Hamad Abdalla Lugola. They maintained that the suit land was never sold to the appellant; thus, she was a trespasser. After a full trial, the DLHT decided the dispute in favour of the respondents by declaring them as the lawful owners of the suit land and that the appellant was a trespasser. Undaunted, the appellant is now approaching this Court by way of appeal with the following five (5) grounds of appeal; i. The Chairperson erred in law and fact by failing to take into consideration that the respondents had no locus stand before the tribunal for failure to produce letters of administration. ii. The Chairperson erred in law and fact by not considering Exhibit- SMA-1, which demonstrates that the matter had already been resolved amicably by village leaders since 26/02/2023. iii. The Chairperson erred in law and fact by dissenting with the assessor’s opinions without expressing the reasons. 3|Pa ge iv. The Chairperson erred in law and fact by failing to visit the locus in quo so as to reach a just decision. v. The Chairperson erred in law and, in fact, by failing to consider the watertight evidence adduced by the Appellant at the trial Tribunal. The appeal was argued by way of written submission. The appellant’s submissions were drawn and filed by Mr. Octavian J. Kamugisha, a learned advocate. On the other hand, the respondents never appeared before the court nor filed their submission despite being duly served with the summons and notice of hearing, which they signed on 9 September 2024. Therefore, the appeal proceeded ex parte. In supporting appeal, Mr. Kamugisha abandoned the 1st ground and proceeded with the rest of the grounds. He started to argue the second and fifth grounds together. In faulting the DLHT decision in the 2 nd and 5th grounds of appeal, Mr. Kamugisha submitted that the DLHT failed to consider Exhibit-SMA, which demonstrated that the matter had already been resolved amicably before the village leaders. Further, the DLHT failed to consider the watertight evidence adduced by the appellant at the trial DLHT. 4|Pa ge He explained that the 1st respondent signed settlement documents (Exhibit SMA) during the meeting conducted before the village council and agreed on all terms endorsed in that settlement regarding the ownership of the disputed property. However, during the trial, the DLHT failed to evaluate that important document tendered as exhibit at the trial. Mr. Kamugisha argued that failure amounted to the failure to evaluate the evidence adduced by the appellant as well as the failure to consider the watertight evidence adduced by the appellant. Furthermore, he cited the cases Standard Chartered Bank of Tanzania Ltd vs. National Oil Tanzania Ltd & Another, Civil Appeal No. 98/2008 at Page 9, quoted in The Registered Trustees of Joy in the Harvest vs. Hamza K. Sungura, Civil Appeal No. 149/2019 (both Unreported), where the Court of Appeal held that the first appellate Court has the duty to re-evaluate the evidence adduced before the trial court. Mr. Kamugisha then invited this Court to evaluate the evidence adduced by the appellant and exhibit SMA to pronounce the just decision in favour of the appellant. Arguing the 3rd ground of appeal, Mr. Kamugisha argued that the Chairperson dissented from the assessor’s opinions without expressing the 5|Pa ge reasons for doing so. He explained that at page 14 of the DLHT’s Judgement, it was written that:- “Kwa uchambuzi nilioanisha hapo juu, sikubaliani na maoni ya wajumbe na nikaribishwe.’’ That phrase did not provide the reasons to dissent from the assessor’s opinions but rather the evaluation of the evidence adduced by the parties during the trial. Further, he submitted that according to Section 24 of the Land Dispute Courts Act, Cap. 216 R. E 2019, it is mandatory r for the Chairman of the District Land and Housing Tribunal to give the reasons for differing the assessors' opinions. He concluded on this ground by submitting that the DLHT chairman failed to give reasons why he differed with the assessor’s opinions, leading to an unjust decision. As regards to the fourth and last ground, Mr. Kamugisha that the trial DLHT failed to visit the locus in quo so as to reach a just decision. He explained that the trial DLHT had an obligation to visit locus in quo since exhibits tendered by the respondents were vague and 6|Pa ge contradictory with the evidence adduced by the respondents during the trial. The exhibits did not disclose the boundaries and size of the disputed land. Furthermore, Mr. Kamugisha submitted that SU1 evidence at the DLTH’s judgement indicated that Charles Ndengu entered the first contract in 2013 and paid the last instalment on 18 August 2018. On the other hand, SU1 testified that Charles Ndegu died in 2017, while SU2 testified that the said Charles Ndegu died in 2018. Therefore, there were contradictions, and it was important for the trial DLHT to visit the locus in quo in order to reach a just decision. In conclusion, Mr. Kamugisha submitted that the DLHT was unjust by failing to consider discrepancies. Also, the respondents failed to bring the officer who attested to exhibit SUA-1 as a witness. Thus, the exhibit lacks evidential value, as held by the Court of Appeal in Asia Rashid Mohamed vs. Mgeni Seif, Civil Appeal No. 128 of 2011 (unreported). Having objectively gone through the grounds of appeal, the submissions by the appellant and the entire records of appeal, I find it necessary to start with the issues raised by Mr. Kamugisha at the end of his submission in chief. 7|Pa ge He raised two issues: one, discrepancies in the respondents’ side evidence, and two, the respondents failed to bring the witness who attested to the exhibit. Thus, that exhibit lacks evidential value. Briefly, having gone through the grounds of appeal, the counsel for the appellant is trying to “illegally smuggle” the new issues during submissions. He submitted what was not canvassed in the grounds of appeal. The introduction of the new issues during the submission and their effect on the decision is not a new phenomenon in our jurisdiction, as there is a plethora of authorities. The Court of Appeal in Yusuf Khamis Hamza vs. Juma Ali Abdallah, Civil Appeal No. 25 of 2020 (Tanzlii), held that; “In this case, the issue of time bar was not raised by the parties in their pleadings. In this sense it was quite in order and absolutely perfect for the court below not deal with matters which was not canvassed in pleadings”. Further, in YARA Tanzania Limited vs. Charles Aloyce Msemwa and two others; Commercial Case No. 5 of 2013, unreported (HC-Commercial Division), it was held that:- 8|Pa ge “It is a cardinal principle of the law of civil procedure founded upon prudence that parties are bound by their pleadings. That is, it is settled law that parties are bound by their pleadings and that no party is allowed to present a case contrary to its pleadings”. Therefore, since the two issues of discrepancies in the respondents’ side evidence and the failure to bring a witness who attested the exhibit were not canvassed on the grounds of appeal, I will not consider them. These are the statements from the bar, and that practice is not allowed and discouraged by the Courts. This position is clearly stated by the Court of Appeal in Rosemary Stella Chambe Jairo vs. David Kitundu Jairo, Civil Reference No. 6 of 2018 [Tanzlii], where the Court discussed the statement from the bar it held that; “The practice abhorred and discouraged from the Court”. Reverting to the grounds of appeal, I will start with the fourth ground of appeal, where the appellant was faulting the DLHT for failing to visit the locus in quo. This ground should not detain me long. The Court of Appeal in Kimoni Dimitri Mantheakis vs. Ally Azim Dewji and seven others, Civil Appeal No. 4 of 2018 (Tanzlii) 9|Pa ge “Whereas the visit of the locus in quo is not mandatory, it is trite law that, it is done only in exceptional circumstances as by doing so a court may unconsciously take a role of witness rather than adjudicator. In this regard, where the court deems it warranted, then it is bound to carry it out properly so as to establish whether the evidence in respect of the property is in tandem with what pertains physically on the ground because the visit is not for the purposes of filling gaps in evidence”. Further, in William Mukasa vs. Uganda [1964] E. A 696 cited in Kimoni Dimitri Mantheakis (Supra) it was held that; "A view of a locus in quo ought to be, I think, to check on the evidence already given and, where necessary and possible, to have such evidence ocularly demonstrated in the same way a court examines a plan or a map or some fixed object already exhibited or spoken of in the proceedings. It is essential that after a view of a judge or magistrate should exercise great care not to constitute himself a witness in the case. Neither a view nor personal observation should be a substitute for evidence”. From the above-cited cases, the following can be grasped; One, the visit of the locus in quo is not mandatory, Two, it is done only in exceptional circumstances, 10 | P a g e Third, its purpose is to check on the evidence already given and, where necessary and possible, to demonstrate such evidence as already exhibited or spoken of in the proceedings. Therefore, flowing from above, it was not mandatory for the trial DLHT to visit the locus in quo. Further, having gone through the reason given by the appellant as to why DLHT needed to visit the locus in quo, I find the reasons are not exceptional circumstances. This is because the first reason that the exhibits tendered by the respondents were vague and contradictory to the evidence adduced by the respondents during the trial is a matter of evaluation of evidence. On the second reason that the exhibits did not disclose the boundaries and size of the disputed land, I have the following: exhibit SUA-1, tendered by the 1st respondent, described a suit land. It described the land size and location and mentioned neighbours on each side. Therefore, there were no exceptional circumstances. Furthermore, the practice of visiting locus in quo is straightforward: visiting a locus in quo can be initiated by the court suo motu if there are 11 | P a g e exceptional circumstances to do so, or parties can initiate it upon request to the court and the court being satisfied that there are exceptional circumstances. In the instant appeal, the DLHT record does not indicate if the appellant ever requested the DLHT to visit the locus in quo. Therefore, raising such a complaint at this appeal stage is improper. As discussed above, the 4th ground of appeal lacks merits and should be dismissed. In my determination, though the counsel for the appellant argued the 2nd and 5th grounds of appeal jointly, however for clarity, I will determine each ground separately. Regarding the 2nd ground, the complaint is the failure of the DLHT to consider exhibit SMA-1, which demonstrated the matter had already been resolved by the village leaders since 26 February 2023. Having gone through the trial DLHT judgment’s on page 13, the Chairman discussed briefly exhibit SMA-1. In his finding and holding, he stated that SMA-1 does not have a description of the land on which the dispute was settled. 12 | P a g e I had an opportunity to peruse the exhibit SMA-1. It has the following features: one, it is titled “UTATUZI WA MGOGORO WA ARDHI KATI YA TENE NDONO NA NDENGU GOLD RUSH”. The title can be translated as the settlement of a land dispute between Tene Ndono and Ndengu Gold Rush”. Two, the authority where the matter was settled was the office of the Hamlet Chairman of Hamlet “D” Nyakalufu. However, that settlement dated 26 February 2023 lacks a description of the land in dispute. The settlement did not have the size of the land, location, or neighbours to that land. From above, the record indicates that the DLHT considered the exhibit SMA-1 in its judgment, but after evaluation, it held that the exhibit was of no help because it lacked land description. On my side, I don’t have a reason to fault that finding of the DLHT. It is clear that exhibit SMA-1 does not describe the land where the settlement was entered. It was unknown which land its dispute was settled in SMA-1. 13 | P a g e In addition to the above, I have the following: one, the parties in the SMA-1 were Tene Ndono versus Ndengu Gold Rush. In contrast, the parties at the trial and in this appeal are Nkamba Matogolo versus Joseph Charles Ndegu and Mathew Charles Ndegu. That was also a weakness of exhibit SMA-1 in supporting the case of Nkamba Matogolo, the appellant at the trial. Two, the counsel for the appellant submitted that the matter was already settled by the village leaders. However, as shown earlier, SMA-1 indicates that the dispute was settled by the Hamlet Chairman within Nyakafulu Village. On this, I wish to remind parties and their counsel on the authorities vested with exclusive jurisdiction to deal with land matters. Section 3 (2) of the Land Disputes Settlement Act, and section 167 (1) of the Land Act. The law mentions; (a)Court of Appeal; (b)High Court; (c)District Land and Housing Tribunal; (d)Ward Tribunals and; (e)Village Land Council. 14 | P a g e In the case of village land, section 15 (9) of the Village Land Act provides for the land village council as a body responsible for mediation the parties to the dispute. Therefore, the Hamlet chairman, who settled the dispute as indicated in SMA-1, is not among the authorities to do so. He was supposed to refer the parties to the proper authorities for settlement. Therefore, the 2nd ground of appeal must fail as it lacks merits. On the 5th ground, the appellant faulted the DLHT for the failure to consider the watertight evidence adduced by the Appellant at the trial Tribunal. For the purpose of determining this ground of appeal, I have to re- evaluate and re-analyze the evidence adduced at the trial. See Makubi Dogani vs. Ngodongo Maganga, Civil Appeal No. 78 of 2019 (Tanzlii). The evidence at the trial indicates that the appellant, who testified as SM1, stated that she purchased the land in dispute from the late Ndengu for a consideration of TZS. 300,000/=. He purchased it orally in the presence of a person named Masunga. Upon cross-examination, she also stated that Daudi, the late Ndengu's son, was present at the time of 15 | P a g e purchase. Her witnesses, SM2 Tene Dotto and SM3 Peter Mangu Robert, both, when cross-examined, stated that they did not witness the oral agreement. From the above evidence, I agree with the findings of the DLHT that the appellant failed to prove in the required standard that there was an enforceable oral contract due to a lack of witnesses. The question is, what is an oral contract? The online Law Dictionary, which featured the 2 nd edition of the Blacks Law Dictionary, defined oral contract to mean; “A contract agreed verbally, but not in writing, the existence of which can be difficult to prove as a result. If an oral contract can be proven to exist, it may void a written contract and vice versa”. That means it is a kind of contract agreed to via spoken communication but not written down and signed. The question is, what makes an oral contract to be enforceable? This Court in Abdulahimu Rugaenda vs. Odetha T. Rugambwa, PC Civil Appeal No. 32 of 2021, Tanzlii (HC-Bukoba) held that; 16 | P a g e “For an oral contract to be valid and enforceable, it must be proved by witnesses who were present during the formation of that contract”. In the instant appeal, as I alluded to earlier, according to the appellant, she mentioned the persons who witnessed that oral contract; unfortunately, those persons mentioned were not called to testify as witnesses. Therefore, their absence from proving whether there was an oral contract between the appellant and the late Charles Ndengu automatically affected such a contract's existence, binding and enforceability. Thus, even though oral contracts are legally binding, in circumstances where no witness testified if they were present at the time the contract was agreed upon, it is difficult to prove the same and its terms. Flowing from above, the trial DLHT analysed and considered the appellant evidence and properly held that evidence did not prove if there was an oral contract between the appellant and the late Charles Ndengu. Therefore, the 5th ground of appeal is devoid of merits. 17 | P a g e Now reverting to the last ground for the determination, i.e., ground No. 3, the issue complained is that the DLHT erred by dissenting from the assessor’s opinions without expressing the reasons. The entry point on this is 24 of the Land Disputes Courts Act, which requires the Chairman of the DLHT to give reasons in the event he holds a different opinion from what was presented by the assessors. The section reads; “In reaching decisions, the Chairman shall take into account the opinion of the assessors but shall not be bound by it, except that the Chairman shall in the judgment give reasons for differing with such opinion”. Further, in Emmanuel Christopher Lukumai vs. Juma Omari Mrisho, Civil Appeal No. 21 of 2013 (Tanzlii), the Court of Appeal held that; “Besides, where the Chairman disagrees with the opinion of the assessors, he must record reasons”. Briefly, on pages 8, 9 and 10 of the impugned judgment, the DLHT chairman reflected on the assessors' opinions. After that, he analysed the 18 | P a g e evidence, reached his own conclusion, and gave a reason why he departed from the opinions. On page 14 of the impugned judgment, it is indicated that he considered the opinion, but he decided to depart after analysing the evidence on record. That passage reads “Kwa uchambuzi nilioainisha hapo juu, sikubaliani na maoni ya Wajumbe na nikaribishwe kwenye kiini cha 3 kwa kutoa nafuu zifuatazo” Therefore, the reasons for his departure were articulated on pages 11, 12, 13 and 14 of the impugned judgment. He indicated that the land in dispute was owned by the late Charles Ndengu. Also, the appellant failed to prove that she purchased the land in dispute orally, and the respondents’ evidence was heavier than the appellant's. The above were the reasons the Chairman of the DLHT differed from the assessor's opinions, and he indicated so in the impugned judgment. Thus, the appellant’s allegation in the 3rd ground of appeal is misconceived, and this ground fails. 19 | P a g e From the above discussion, in totality, the appeal lacks merits; the grounds of appeal fail to persuade this Court to interfere with the decision of the trial DLHT. Consequently, I dismiss the appeal. Since the appeal proceeded exparte, I order no costs. It is so ordered. K. D. MHINA JUDGE 08/10/2024 Court The right to appeal is fully explained. K. D. MHINA JUDGE 08/10/2024 20 | P a g e 21 | P a g e