nkula lukelesha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF

TANZANIA (IN THE DISTRICT REGISTRY OF SUMBAWANGA)

AT SUM BAWAN GA LAND APPEAL NO. 5522 OF 2024 (Originating from Application No. 9 of 2023 District Land and Housing Tribunal for Katavi at Mpanda) NKULA LUKELESHA........... ....................... APPELLANT

VERSUS TABU JISABO .......... ..............RESPONDENT Last order: 22nd JULY 2024 Judgement; 27th AUGUST 2024

JUDGMENT NANGELA/J.: This appeal arises from the decision of the District and Land Housing Tribunal (DLHT) for Katavi at Mpanda, which decided the case in favour of respondent. The DLHT had received and heard a complaint from the respondent following his dissatisfaction with a decision handed down by the Ikuba Ward Tribunal in Case No. 147/2023. Having received and heard such a complaint, the DHLT decided in favour of the respondent herein. The appellant was dissatisfied and aggrieved by such a Page 1 of 18 decision. He filed this appeal and raised three grounds of appeal against the decision of the DLHT, claiming, to wit, that: 1. The trial tribunal erred in law and in fact in the evaluation of the evidence regarding the ownership of the disputed land, which evidence was adduced by the parties, hence arriving at an erroneous decision.

2. That, the trial tribunal erred in law and fact by holding that the respondent is the lawful owner of the disputed land while the appellant has been using that disputed land for more than twelve (12) years without any interruption by the respondent.

3. That, the trial tribunal erred in law and fact since the evidence adduced by the respondent and his witness was hearsay evidence. Based on the above three grounds, the appellant urged this court to quash and set aside the tribunal's decision, declare that the appellant is the lawful owner of the disputed land, and allow the appeal with costs. On the 22nd of July 2022, this appeal was called on for necessary orders. On this material date, Mr. Sweetbert Nkumpilo, learned counsel, appeared for the appellant while Ms. Sekela Amulike, learned counsel, appeared for the respondent. It was agreed that the appeal should be disposed of by way of written submissions, and a schedule of filing such submissions was issued. I will proceed to consider their Page 2 of 18 arguments for and against this appeal before I come up with my own conclusions. In his submission, Mr. Nkumpilo urged this court to interfere with the findings of the trial tribunal, arguing that, the trial tribunal misapprehended the evidence in such a manner that its conclusions are faulty, having been based on incorrect premises. Arguing in support of the ground of appeal, he argued that as a settled legal principle, mere summarization of the evidence during trial does not sufficiently amount to its evaluation and the absence of a proper evaluation of such evidence may lead to an improper conclusion. He argued that such

was the case in this matter. To backup his submission, Mr. Nkumpilo relied on the case of Leonard Manashoka vs. Republic, Criminal Appeal No.226 of 2014, CAT, Bukoba, (unreported). He contended that, even though that decision was of criminal nature, it can still be relied upon in support of a civil case like the one at hand, given that the trial tribunal did not analyze or evaluate the evidence laid before it. He argued that, instead, reliance was solely placed on the evidence of the respondent which had several material discrepancies, contradictions, and inconsistencies. He invited this court to re-evaluate the evidence and thereby quash the findings of the trial tribunal and substitute for it its own findings, arguing that, aS a matter of law, it is the duty of the court to evaluate the evidence of each witness as well as his or her credibility. He relied on the cases of Paulina Samson Ndawavya vs. Theresia Thomas Madaha, Civil Appeal No. Page 3 of 18 45 of 2017 and Stanslaus Rugaba Kasusura and Another vs. Phares Kabuye, [1982] T.L.R 338. He maintained a stance that the chairman of the tribunal failed to properly evaluate the evidence and, for that matter, arrived at an erroneous decision. Mr. Nkupiio referred this court to the testimony of SU-1 (the appellant) and what he testified before the tribunal to the effect that the farmland in dispute was family land that had been

in their use since 1978. He contended that such testimony was supported by SU-2, a fact which reveals that it was the appellant who had first entered, cleared, and owned the disputed farmland in 1978 compared to the respondent who alleged to have acquired it since 1998 when such land had almost been owned by the villagers and was not free land. Basing his arguments on the case of Stephen Augustine Minja vs. The Commissioner for Lands and Four Others, Land Case No. 208 of 2020, (HC)(unreported) as well as the Court of Appeal Decision in the case of Kimaro vs. Joseph Mishili t/a Catholic Charismatic Renewal, Civil Appeal No. 33 of 2017 (CAT) (DSM) (unreported), Mr. Nkumpilo submitted that, a person who acquires land first is better placed in title than the one who comes over the same subsequently. For him, it meant that, since it was the appellant who acquired the disputed land at first and nowhere did the respondent objected that fact, the trial turbinal erred to find otherwise. As regards the second ground, Mr. Nkumpilo argued that nowhere was it disputed that the appellant has constantly been using the disputed farmland since 1978 without any interruption Page 4 of 18 as supported by SU-2. Relying on item 6 of the Magistrates' Courts (Limitation of Proceedings Under Customary Law) Rules GN. No.322 of 1964 and Item 22 of the Schedule to the Laws of Limitation Act, Cap.89 R.E

2019, he argued that the limitation of time provided for recovery of land is twelve (12) years. According to Mr. Nkumpilo, the appellant's time when he has been in the ownership and use of the said disputed farmland has surpassed the 12 years' prescription period as he has owned the land for forty-five (45) years. For that matter, he contended that, recovery of the said farmland cannot be made possible after all such time and there being no extension of time by the minister responsible for legal affairs as per section 44 (1) of the Law of Limitation Act, Cap. 89 R.E 2019. In his further submission regarding the third ground of appeal, Mr. Nkumpilo argued that the evidence adduced by the respondent and thereby relied upon by the trial tribunal was hearsay evidence, a fact that makes the decision of the trial tribunal one arrived at erroneously. Mr Nkumpilo reiterated the general rule regarding hearsay evidence noting that, evidence can only be admissible if the same is direct and whatever else that is not direct is hearsay evidence and, as per section 62 of the Evidence Act, Cap.6 R.E 2019 is inadmissible. Mr. Nkumpilo argued that there is no witness for the respondent who testified to be present when the respondent acquired the farmland in dispute. He contended that all witnesses who testified in favour of the respondent got informed by the respondent that the land belonged to

the respondent without any Page 5 of 18 proof thereof. He submitted that not even a neighbour was summoned as a witness, and it all seemed that the witnesses called by the respondent were staged witnesses to testify in his interests. Referring to the testimony of SM-4 when cross- examined (page 3 paras 2 and 3 of the tribunal's decision) Mr Nkumpilo noted that SM-4 stated that he did not know to: whom the disputed land belonged. For that reason, Mr. Nkumpilo concluded that the evidence relied on by the trial Tribunal was hearsay and should have been regarded as inadmissible. He urged this court, thus, to allow this appeal with costs. In response to the submission filed by Mr. Nkumpilo, the learned advocate for the respondent did put up a spirited submission refuting what Mr. Nkumpilo raised in his argument. In her submission, Ms. Sekela Amulike who represented the respondent argued that, in the first instance, the submission filed by Mr. Nkumpilo were not filed incompliance with the filing schedule given by this court on the 14th of June 2024. She contended that, such a failure is tantamount to a failure to prosecute the appeal. To support her submission, she relied on the cases of Godfrey Kimbe vs. Peter Ngonyani, (Civil Appeal No.41 of 2014) [2017] TCA 1 (25July 2017); Tanzania Harbours Authority vs. Mohamed R. Mohamed [2002] TLR. 76, CRDB Bank PLCvs. Heri Microfinance Ltd &

Another, Civil Appeal No. 20 of 2020 [2024] TZCA (19 March 2024); Karori Chogoro vs. Waitihache Menengo, Civil Appeal No.164 of 2018 and Page f> of 18 01am Tanzania Ltd vs. Hawala Kwilabya, Civil Appeal No.17 of 1999 (unreported). Well, I have taken note of the respondent counsel's submission. However, it is on record that, much as this court issued a schedule of filing submissions on the 14th of June 2024 to the parties, on the 22nti of July 2024 a prayer was made for extension of time and this court granted such time to the appellant's counsel to file his submission out of time having satisfied this court that there were genuine reasons that made it impossible for him to file such within the timeframe given by this court. Since the appellant's counsel filed such written submission on behalf of the appellant, I do not think what Ms. Amulike raised can stand. Having so stated, and there being no rejoinder submission that was filed by the appellant's learned counsel, I will proceed to consider the merits of this appeal. In principle, it is trite that, a first appellate court or tribunal is at liberty to appreciate the entire evidence relied upon by the trial court/tribunal and may come up with its own different findings. The DHLT being the first appellate tribunal was, therefore, entitled to do that. See the case of Deemay Daat, Hawa Burbai & Nada Daati vs. The Republic,

Criminal Appeal No. 80 of 1994, (CA) (Arusha) (unreported), Lazaro Fataki vs Nowel Kamango (Land Appeal 44 of 2023; Land Appeal 44 of 2023) [2024] TZHC 1673 (30 April 2024). In the case of Lazaro Fataki vs, Nowel Ngomango (supra), this court, citing the case of Peters vs. Page 7 of 18 Sunday Post Limited [1958] 1 EA 424 [CAN), noted that the former East African Court of Appeal once made it clear, and applied the holding in the English case of Watt vs. Thomas, [1947] 1 All E.R. 582; [1947] A.C. 484, to the effect that: "an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight." In this appeal before me, the gist of the matter is whether the same should

be allowed when one considers the entire decision of the learned tribunal chairperson and the grounds relied upon by the appellant as further elaborated in Mr. Nkumpilo's submissions. I will start with the last ground which Page 8 of 18 based on an allegation that the evidence which the trial tribunal relied on to support its decision was hearsay. Mr. Nkumpilo labelled it as such because, all witnesses were merely told by the respondent that the farmland in dispute belonged to him/ but they were not there when the respondent acquired it. Well, if the witnesses called by the respondent were told by him that he was the owner of the farmland and that same respondent was also called to testify before the tribunal and was fully subjected to cross-examination, does such evidence become hearsay? To respond to that purely legal question, a revisit to the principles regarding what hearsay evidence is all about and its treatment before the law is pretty much befitting in this appeal. Essentially, it is common ground that hearsay evidence is of no evidential value. It falls within the so-called "exclusionary rules of evidence". That is a settled view arid the basis for such exclusion is well established. Being conscious of ensuring that justice is not defiled, the law, as an instrument through which justice is distilled, does consider such things as the powers of observation of witnesses,

the quality of their memories, the competence of their knowledge as being crucial in justice dispensation. All of such are matters which a court would look at as it observes the persons testifying before it. For that matter, the law demands that testimony which is to be received must be given by a witness in open court, upon oath, and subject to cross- examination. Page s of IS In Teper v. R. [1952] 2 All ER 447 at 448, noting that hearsay does not satisfy such conditions and so it is excluded, Lord Normand had the following to say: "The rule against admission of hearsay evidence is fundamental. It is not the best evidence, and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost." What then is hearsay evidence in the first place? According to Sarkar (14th' ed, p. 931) hearsay refers to: "something which a witness before the court says that he heard from a third party who is not called as a witness and the statement of that witness is inadmissible to prove the truth of the fact stated." (Emphasis added). Phipson (7thl ed) defines hearsay evidence to mean: "Oral or written statements made by persons who are not parties and who are not called as witnesses are inadmissible to prove the truth of the matters

stated." (Emphasis added) A judicial definition of hearsay may as well be found in the Privy Council decision in the old case of Subramanian vs. Page 10 of 18 Public Prosecutor [1956]1 WLR 965 at 970, where the Privy Council defined it as follows: "Evidence of a statement made to witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of whatiscontainedinthestatement.lt is not hearsay and. is admissible when it is proposed to establish by the evidence, not the truth: of the statement but the fact that it was made." (See also: Ratten v. R. [1971 ]3 All ER 801 at 804) (Emphasis added). .. From the above definitions concerning what hearsay stands for, one will notice that a statement by witness about what he was told by another per se is not hearsay. Whether or not the evidence will be hearsay depends on the use that is made of them. Essentially, for such a statement to be adjudged as hearsay, there are certain attributes which the statement must exhibit. Such attributes are as follows: (a) The statement must be made by a person who is not in court, and (b) it must have been intended to be a proof of the truth of the facts asserted in the statement in question. In the present appeal, while Mr. Nkumpilo firmly believes that the trial tribunal erred as the evidence

it relied on was hearsay, I find that when viewed in the lenses of the above Page 11 of 18 stated authorities regarding what hearsay evidence is all about, his version of arguments cannot stand the test. I hold that view because, although the witnesses who were summoned to testify in favour of the appellant might have said that they were "informed by him" that he was the owner of the disputed farmland, the appellant was not only "a party to the case" but was as well a witness who was called to testify, before the tribunal. Had he not been called to testify that would be a different story and the testimonies of the witnesses who stated that they were informed by him would have been rendered hearsay. Such was a position in the case of Haji Ibrahim vs. R., [1975] LRT No. 56, where Lugakingira, AgJ (as he then was) held that the testimony of a police witness about information supplied by a third party who is not called as a witness is hearsay and inadmissible. [Citing Kigecha Njunga v R, (1965) EA 773; and Bugi Ridba v R. (1967) HCD n 68. It follows, therefore, that, since the respondent in this appeal was called to testify before the tribunal as a witness, then the argument made by Mr. Nkumpilo cannot hold. Let me now revert to the first ground of appeal. In his submission, Mr. Nkumpilo has contended that the trial tribunal did not evaluate the evidence laid before it and, for

that reason, It arrived at an erroneous conclusion. What does evaluation of evidence mean? This is a question which has once been addressed by this court in the case of Exim Bank Tanzania Limited vs Sai Energy & Logistics Services Limited Page 12of 18 (Commercial Appeal No.2 of 2022) [2023] TZHCComD 380 (27 November 2023. (See also the case of Lazaro Fataki vs. Nowel Ngomango (supra). In the case of Exim Bank Tanzania Ltd (supra) this court observed that: "Semantically, "to evaluate" something means to critically analyse and give value to, ascertaining the amount, or to find numerical expression for e.t.c., to assess, to review and inspect something to give it value over the other. From that context, evaluation of evidence involves the exercise of reviewing/critiquing the evidence laid before the court during trial in its totality the aim being ascribing to it a probative value or quality. In simple terms, thus, evaluation of evidence is giving a piece of evidence a reasoned belief of or preference over the evidence of one of the parties to the trial and disbelief of the other." On the other hand, the court, citing the Nigerian case of Owakah vs. R.S.H & P.D.A (2022) 12 NWLR (pt.1845) at 498, stated that: "Where a trial court unquestionably evaluates the evidence and justifiably appraises the facts, what the Court of Appeal ought to do is to find out whether there is evidence

on record to justify the conclusion reached by the trial court." Page 13 of 18 Given the above position of the law, the question to respond to, therefore, is whether the trial tribunal failed to evaluate and properly consider the evidence before it, as argued by Mr. Nkumpilo. And, if it did, whether the evidence on record justified the conclusion arrived at by the trial tribunal. To find out whether the tribunals that tried the matter appreciated the evidence laid before them or not, one must go back to the record itself. As I look at the decision of the DLHT, it is my considered view that the DHLT not only provided a summary of the testimonies offered before it but also evaluated that evidence before it. In particular, the record shows clearly that the DLHT addressed itself to the claims made by each party regarding when they acquired the disputed farmland. While SM-1 (the respondent) testified to have acquired the farmland in 1997/1998, SU-1 (the Appellant) testified that the farmland has been under use by the Lekelesha's family since 1978 till 2022. On that account, the DHLT evaluated these competing claims and was of the view that the appellant was duty bound to prove the: fact he had alleged, i.e., that the farmland was acquired in 1978 by his father. That was, indeed, a correct view. However, the respondent's claim that he had acquired the land in 1997/1998 needed, as

well, to be proved. Did the respondent or appellant discharge their respective burden of proof? Essentially, once a party bearing the ohustf proof has made out a primafade case, his opponent is burdened with an onus of rebuttal. Should the opposing party fail to discharge this onus of rebuttal, the prima fade evidence will be regarded Page 14 of 18 as sufficient evidence for purposes of discharging the main onus of proof. See, for that matter, the case of Professional Plaint Centre Ltd vs. Azania Bank Ltd, Comm. Case No,53. of 2021 (unreported), citing the South African case of Senekal vs. Trust Bank of Africa Ltd 1978 (3) SA 375, at 382-383A. In the present appeal before me, although no direct proof was given by SM-2, SM-3 or SM-4 regarding who was the owner of the farm land, the testimonies offered by SM-2 and SM-3 were to the effect that since 2002, the respondent had been in use of the said farmland and has had put the same in possession of SM- 2 and later SM-3 who was using. This meant that the respondent had been in adverse possession of the farmland since 1998 down to 2022 and, for that reason, the DLHT correctly relied on the case of Registered Trustees of Holly Spirit Sisters Tanzania vs January Kamili Shayo & Others (Civil Appeal No. 193 of 2016) [2018] TZCA 365 (31 August 2018). In that case the Court of Appeal of Tanzania clarified as to when possession of land may

be said to be adverse. Citing the case sof Mbira vs. Gachuhi [2002] 1 EA 137(HCK); Moses vs. Lovegrove [1952] 2 QB 533; and Hughes vs. Griffin [1969] 1 All ER 460, the Court of Appeal stated as follows: "In those cases, it was held that it is trite law that a claim for adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner or in pursuance of an Page 15 of 18 agreement for sale or lease or otherwise. Thus, oh the whole, a person seeking to acquire title to land by adverse possession had to cumulatively prove the following: - (a) That there had been absence of possession by the true owner through abandonment; (b) that the adverse possessor had been in actual possession of the piece of land; (c) that the adverse possessor had no color of right to be there other than his entry and occupation; (d) that the adverse possessor had openly and without the consent of the true owner done acts which were: inconsistent with the enjoyment by the true owner of land for purposes for which he intended to use it; (e) that there was a sufficient animus to dis possess and an animo possidendr, (f) that the statutory period, in this case twelve years, had elapsed; (g) that there had been no interruption to the adverse possession throughout the aforesaid statutory period; and (h) that the nature of the property was such that, in the tight

of the Page 16 of 18 foregoing, adverse possession would result." In my view, the DLHT correctly considered and evaluated the evidence before it and the reliance made to the above cited case was apt since, even if the appellant has owned the land since 1978, since the respondent entered the same land since 1998 without the appellant's Consent or agreement whatsoever/ and continued to use that land, including allowing SM-2 and SM- 3 to use it as a means of keeping it for him and the same did so up to the year 2022, the doctrine of adverse possession was applicable. I hold so because apart from the factors mentioned in the case of Registered Trustees of the Holy Spirit Sisters (supra) being manifestly present, the respondent has been in adverse use of the land without interruption to that adverse possession throughout the aforesaid statutory period of 12 years and beyond. Although Mr. Nkumpilo argued that it was the appellant who had a better title having been in the earlier use of the land since 1978 arid based his arguments on the case of Stephen Augustine Minja vs. The Commissioner for Lands and Four Others, Land Case No. 208 of 2020, (HC)(unreported) as well as the Court of Appeal Decision in the case of Kimaro vs. Joseph Mishili t/a Catholic Charismatic Renewal, Civil Appeal No. 33 of 2017 (CAT) (DSM) (unreported), I do not find him to be correct given what I have stated

hereabbve. While the appellant might indeed have earlier used the farmland in dispute, once he allowed or acquiesced with the adverse use by the respondent for all those years, then the Page 17 of 18 doctrine of adverse possession will apply against him. For that reason, I do not find merit in the first and the second grounds of appeal as well. The DLHT evaluated the evidence before it and did arrive at a correct conclusion. All said and done, I find this appeal to be lacking merits and I hereby dismiss it. In the circumstance of this appeal, I make no orders as to costs. Each party shall bear its own costs. It is so ordered. DATED AT SUMBAWANGA ON THIS 27th DAY OF AUGUST 2024 til GA/ Page 18 of 18