MATOZI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA SUB-REGISTRY

AT SUMBAWANGA LAND APPEAL No. 29 OF 2023 (Originating from Land Application No. 22 of 2023 from the Decision of District land and Housing Tribunal of Rukwa at Sumbawanga)

BETWEEN NORBERT MATOZI ......... .................APPELLANT

VERSUS PRASIDO MALINDIMYA................ ..... ........,.1ST RESPONDENT PRIVATUS MALINDIMYA....... ...................... 2nd RESPONDENT PANCRAS MALINDIMYA................ ....... 3rd RESPONDENT DAVID MALINDIMYA...................... 4th RESPONDENT RUDOVIC MALINDIMYA............... .......... ..5th RESPONDENT Last order: 24th APRIL 2024 Judgement: 22nd JULY 2024

JUDGMENT NANGELA, J.: This appeal arises from the decision of the District and Land Housing Tribunal (DLHT) for Rukwa at Sumbawanga which decided in favour of respondents in a 27 acres land claim that he had filed before the Tribunal. The facts of the matter before me are briefly that, the appellant, a peasant who does farming in Wankulu Village, alleged to have bought land from Mzee Albin Malindimya (now deceased), a father of the respondents. It was averred that the entire land in dispute is 30 acres of which 24 acres were purchased from Mzee Malindimya for a sum of TZS 300,000 Page 1 of17 while the remaining six (6) acres were purchased from Mzee Funzile. Before the DLHT, it was alleged that, in the month of July 2020, the respondents trespassed to the suit property, claiming that the 24 acres, which the appellant (claimant) bought from Mzee Malindimya (the respondents' father), belonged to them. It was averred that; the respondents did even demolish a house which the appellant had erected there. In their defence, however, the respondents admitted that their late father did sell a portion of land to the claimant (appellant), but it was only 3 acres and not 24 acres as alleged by the appellant. Having heard the parties, the DLHT made its findings and decided that the appellant (claimant) had failed to prove his claims, and, for that reason, the land belonged to the 1st and 2nd Respondent. Moreover, the appellant was condemned to pay costs. It is such a decision; therefore, which appellant is challenging. In doing so he has raised the following five grounds in his appeal: 1, That, the trial chairperson erred in law and fact on giving the right of occupancy to the respondents who had not in any way established the source of their ownership.

2. The trial court erred in law and fact on admitting and acting upon hearsay evidence of all the defence witnesses the conduct which led her to a wrong decision. Page 2 of 17 3. That the trial chairperson erred in law and fact to ignore all the evidence given for the appellant and supporting his position by the authority, which is irrelevant to the case at hand, distinguishable and or inapplicable thereto.

4. That, the trial tribunal chairperson erred in law and fact on her failure to consider the time factor in her handling of the suit.

5. That, the judgement under this appeal was delivered by the District Land and Housing Tribunal (DLHT) for Sumbawanga District in Rukwa region on 04/05/2023 so within the Honourable Court and time limit. In view of the above grounds, the appellant urged this court to quash the judgement and set aside the orders of the DLHT with costs; declare that he (the appellant) is the rightful owner of the disputed land; order that all properties thereon be recovered, and any other relief this Honourable court may deem fit and just to grant. On the 14th day of March 2024 this appeal was called on for its hearing. On the material date, the appellant enjoyed the legal services of Mr. Baltazari Chambi, learned advocate. The respondents^ (except for the 3rd and 5th respondents whose case was heard ex-parte even before the DLHT) appeared and fended for themselves. When Mr. Chambi addressed this court, his was a contention that the DLHT erred in its decision for not ascertaining how the appellant got the land. He argued that the Page 3 of 17 appellant's in his claims before the DLHT were that he owns 30 acres of land out of which 24 acres were purchased from the respondent's father, now deceased. He contended that, it is trite law that he who alleges must prove. He argued that the appellant testified as a witness and testimony was supported by SM-2 one Arcade regarding how the appellant how

appellant bought the land in dispute constituting 30 acres. Mr. Chambi contended that the DLHT erred in considering and giving a lesser weight to the testimony of SM-2 for lack of corroborative evidence and considered him witness with an interested to serve, only because he is a relative of the appellant. He submitted, demoting such evidence to that status was erroneous and the case of Abraham Saigurani vs. Republic [1981] TLR 265, was wrongly applied. Mr. Chambi availed to this court a copy of the case of Hadija Adam Said Maliwata vs. Agiga Abas and 4 Others, Land Appeal No.101 of 2020 in a further support of his position. It was a further submission from Mr. Chambi that, the ownership of the land in dispute was not established by the respondents while the appellant did establish ownership and how the land came to be his property. He contended that the only evidence they had brought to the court was about the ownership of 3 acres, which is not an issue before this court. According to Mr. Chambi, the three acres were in respect of a disputed matter between the respondents' father (Mzee Albini Malindimya) and the appellant in Civil Appeal No. 25 of 2006 which was before the DLHT at Sumbawanga and none appealed against the decision. Page 4 of 17 As regards the other grounds, Mr. Cham bi argued that the DLHT the honourable tribunal based its decision on hearsay evidence given that

the 3 acres had its own facts, and a decision was even made regarding them. He contended that, based on that, it was wrong for the DLHT to act on that piece of information. He further contended that the whole decision of the tribunal was a misdirection as the appellant duly proved his case as required by the law. Responding to Mr. Chambi's submission, it was the 1st respondent's view that the respondents ably presented their case before the tribunal and established how they got the land. He contended that, the land belonged to their family as from the time of their birth they have been cultivating that land as it belonged to their late father since ever. He contended that, the evidence of one Sabas was not erroneously given less weight because he was also a witness in the previous case which involved the late Mzee Malindimya and the appellant. He availed ta copy of the decision of the DLHT regarding that previous case noting that the said Sabas did testify for and in favour of their father, the late Mzee Malindimya. On the other hand, the 2nd respondent submitted that in his testimony the witness Sabas did testify that the land was 3 acres only. He contended that, as respondents, they had asked for the evidence regarding the purchase of the said 30 or 32 acres, but nothing was tendered in court to prove that fact. He submitted that, even the eyewitness who witnessed the Page 5

of 17 transaction, one Nobert Mwananzumiz (SM-3) supported the view that the appellant bought 3 acres. He further contended that, his testimony was more credible given that he was a leader at the time of the transaction. He contended further that there is no other proof other than the fact that the respondents were born and lived on the said land and, that, even some of their siblings who have long passed away were buried on the same land, In view of all that, he contended that the land was the respondents' family inheritance from time immemorial. The third respondent did not have anything to add to what his colleagues had submitted. In a brief rejoinder, Mr. Chambi rejoined that the appellant does not contest the fact that the respondents were born and lived on the disputed area of land. Rather, the appellant's argument was that the land, which is the subject matter of this appeal, belonged to the respondents' father and, for that matter, he was at liberty to do anything with it. He contended that, there is nowhere in the evidence laid before the DLHT that the respondents' father ever gave it to the respondents as their inheritance. Mr. Chambi rejoined further, as regard the testimony of one Sabas that such a witness had also appeared in the previous case, that, he did so because he had testified the sale. He submitted that, what the appellant know is that he bought 24 and not

32 acres of land. He also submitted that, the argument that SM-3 did witness the sale could be possible but the transaction he witnessed was not that of 24 acres and the issue of 3 acres cannot be raised in this appeal. In view of that, Page 6 of 17 he urged this court to allow this appeal with costs, quash the judgement and set aside the orders of the DLHT. Having heard the rival arguments by the parties, the issue which I am confronted with is whether there is any merit in this appeal. Should this court grant the reliefs sought by the appellant in this case? Before I respond to the issue raised herein, let me make it clear that this is a first appeal. Case law have established, when it comes to a first appeal it is a settled position of the law that the first appellate court is entitled, with very limited exceptions, to re-evaluate the entire evidence and may come into its own independent conclusions or findings. See for that matter, the cases of Deemay Daat, Hawa Burbai & Nada Daati vs. The Republic, Criminal Appeal No. 80 of 1994, (CA) (Arusha) (unreported), Lazaro Fataki vs. Nowel Ngomango, Land Appeal No. 44 of 2023 (HC) (Sumbawanga) (unreported), Abdallah Makayule vs. Dunia Moshi, Land Appeal No. 175 Of 2018 (unreported) and Khalfan Omari Kisaka (the Administrator of the Estate of the Late Juma Said Kitano) vs. Matare Village Council & 3Others, Land Appeal No. 100 of

2022 (unreported), (HC) (Dodoma). In this appeal before me, the grounds raised and argued by the appellant through his advocate Mr. Chambi are diverse though Mr. Chambi concentrated more on grounds one, two and three. Looking at the first ground, which is to the effect that the tribunal erred as the respondents could not establish ownership of the said land, the respondents have contended Page 7 of 17 that they were born and raised on the said land from their childhood to date. They have maintained, therefore, that, the disputed land belonged to their family as their inheritance from time immemorial. Mr. Chambi argued, however, that the Appellant was able to prove through SM-2 (Sabas Alkado) that the Appellant bought the land from the respondents' father. As I look at the record of appeal, it is notable that, when SM-2 testified, he told the DLHT that the appellant purchased land from Mzee Malindimya who, at the time, was his neighbour and, that it measured 26 acres. SM-2 added that the appellant bought 6 more acres of land from another person. From that testimony of SM-2, it would mean that, the land which the appellant is alleged to have purchased was 32 acres. In his testimony, however, the appellant is on record to have stated that he purchased 24 acres of land from Albin Malindimya and later in 2020 the respondents trespassed to his land. He also testified before the DLHT

that in 2006 the same landowner attempted to sell 3 acres of that land to one Joseph Msangalawe and the appellant filed a land case which resulted in an Appeal No.25 of 2006. I have taken judicial notice of the said Appeal No.25 of 2006. It was between the Appellant (as respondent) and Albin Malindimya (as appellant). The decision was made in favour of the respondent who is now the appellant herein. But this was a matter involving 3 acres and not 24 acres as the appeal at hand indicates. But during the hearing before the DLHT, the Page 8 of 17 appellant did not tender any documentary evidence regarding his purchase of the said 24 acres. His response, upon being asked by the DLHT, was that he bought the land from Mzee Malindimya in 2002 and paid TZS 300,000/- but the parties did not reduce their contract in writing and so, the respondents have trespassed to his land. He also testified before the DLHT that the dispute started after the respondents7 father trespassed his three acres of the said land which belongs to him. The appellant's version of the sto.ryf that he bought the land from Mzee Malindimya and used to cultivate the same land, was supported by SM-2 one Sabas Alkado. While delivering its judgement, however, the DLHT gave less weight to the testimony of SM-2 arguing that being a related person to SM-1 he was an interested witness. Reliance was placed on the case of

Abraham Sagurani vs. Republic (supra). Mn. Chambi has contended that the DLHT erred in giving a lesser weight on the testimony of SM-2. Perhaps I shall start by looking at that point. First, as the DLHT pointed out, it is trite that the law does not bar relatives of a claimant or even an accused person from testifying about any fact that they may be aware of. The case of Ramadhani Sango vs. Republic, Criminal Appeal No. 175 of 2009 (CAT) (unreported) which was cited by the DLHT is indeed an authority worth noting regarding that point. But was it right to downgrade the testimony of SM-2 and regard him a witness with an interest to serve? Who is a witness with an interest to serve? Page 9 of17 This court has more than once being called upon to address such a question. The case of Lazaro Fataki vs. Nowel Kamango, Land Appeal No.44 of 2023 (HC) (Sumbawanga) (unreported) is one of such cases. In that case, this court noted that: "Expressions like 'independent witness and ’interested witness' must be understood in a reasonable perspective. What is a witness, expected ... of? He must be ... free of personal interest in the outcome of the trial .... In State Of U.P. v. Sughar Singh, AIR. 1978 SC 191: (1978 Cri □ 141), the Court cautioned that there should be clinching material for classifying a witness, as partisan. Whether a witness is independent or interested, is a matter of

ascertainment from circumstances, by a process of evaluation, based on broad probabilities and sound forensic sense." This court went further to cite the Indian case of Indian case of Raju vs. State of T.N., reported in (2012) 12 SCC 701, where the Supreme Court of India held a view that:- "A witness may be called 'interested only when he or she derives some benefit from the result of litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a Page 10 of 17 natural one ... in the circumstances of a case cannot be said to be ’interested." As it may be observed from what has been stated here above by courts, what should be at stake is whether, being a related witness, the witness is telling the truth or otherwise and more, whether the witness has a benefit which he intends to derive from the suit. An assessment of whether a witness is truthful or not is not the duty of the appellate court since that is a question or duty left to a trial court. But as a matter of fact, the record must show, at least, that, such ah assessment was done, and the trial court made findings to that effect. As I look at the record of appeal, I find nowhere the DLHT assessed the credibility of SM-2 to warrant its finding that his testimony was of lesser weight for being an interested witness. I also do not see any observations regarding whether SM-2 was expecting

to derive any benefit from the results of the matter which the appellant (as SM-1) had filed before the DLHT. Essentially, as this court stated in the case of Lazaro Fataki (supra): "Unless it is demonstrably shown otherwise, a normal or mere independent witness who is summoned to testify in court cannot be said to be standing as a beneficiary of the outcomes of the case for which he appeared as a witness. The chairman of the tribunal was therefore on the erring side to Page 11 of 17 hold that Pw-2 was a witness with interest to serve." A similar holding is befitting even in this case when one considers what the DLHT did in as far as the testimony of SM-2 is concerned. It follows, therefore, that, it was erroneous on the part of the DLHT to regard SM-2 as a witness with an interest to serve without demonstrable factual reality of his allege interests in the matter before the DLHT. The concerns raised by Mr. Chambi on that point are thus valid. But even if one was to give a deserving weight to the testimony of SM-2, there will still remain a question that needs to be addressed and that is: could such a testimony turn the tables? The above question is, in my view, pertinent to the determination of this appeal. As the record would show, the appellant did not produce any documentary evidence to indicate that, indeed, 24 acres of land had been sold to him by the respondents' father.

Nevertheless, he did submit that the parties did not execute a written contract, but that, SM-2 was a person who witnessed the transaction. Ordinarily, however, where there is a transaction involving transfer of real property, such as land, from one party to another, the transaction must be documented. This is an imperative issue given the scale of disputes involving such kind of a property. In essence, where the property is unsurveyed land, hence falling under the Village Land Act, 1999, case law has authoritatively established that, such a transfer must have been routed through the respective local authorities and all vital Page 12 of 17 stakeholders or neighbours should have been involved, failure of which the transaction will be rendered nugatory. Such a sound view was convincingly made by this Court, (Kilekamajenga, J) in the case of Priskila Mwainunu vs. Magongo Justus (Land Case Appeal 9 of 2020) [2020] TZHC 3299 (16 October 2020). In that case, the learned judge observed the lack of proper guidance regarding land held under customary right of occupancy and stated as follows, and I quote in extehso'. "The dearth of guidance obliges parties to revert back to the principles of the law of contract whenever selling customary rights of occupancy. Section 10 of the Law of Contract Act, Cap. 345 RE 2019 provides for the basic elements of a contract in Tanzania thus: ’All

agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object; and are not hereby expressly declared to be void.' Therefore, the major requirements for contracts in disposition of customary rights of occupancy would be governed by the Law of Contract. The contract must be made in writing, it must be signed by the parties to signify consent; the parties must be competent to enter into a contract, there must be lawful consideration and such contract must be for the lawful object. However, customary rights of occupancy being a right over an immovable property just like any other right of occu pa n cy, its transfer must be carefully documented to avoid further disputes." (Emphasis added). Page 13 of 17 To further provide guidance, the court stated, and I quote: "In my view, the sale of customary right of occupancy should take the following form: The seller after reaching an agreement with the buyer shall approach the village council. Members of the village council, the seller and purchaser shall identify the neighbours to the land and set-up boundaries. It is always prudent to have standardised form for sale contracts which may be in the custody of the village council. At the end, the sale agreement may be signed by the seller, purchaser, neighbours to the land; it may also be signed and sealed by

the hamlet leader (Mwenyekiti wa Kitongoji), the Village Chairman and the Village Executive Officer. If the land belongs to the clan, the clan head: must approve the sale agreement as it was stated in the case of Paulo Alfred v. Gervas Maricianus [1981] TLR 33. In absence of the clan head, the clan may approve the sale of the clan land. See, the case of Leonance Mutalindwa v. Mariadina Edward [1986] TLR 120/' In my considered view, the above reasoning needs to be heeded at by all since it has the potential to deescalate land disputes which have shown a tremendous increase in present days. Now, taking the cue from the above, and considering the fact that the appellant had testified before the trial tribunal that his transaction with Mzee Albin Malindimya, who was the father to the respondents, was not documented, one finds it difficult, just as the trial tribunal did, to solely bank on the testimony of Page 14 of 17 SM-2 and confidently state that the land in question belonged to the appellant as argued. On the contrary, as the decision in the Appeal No.25 of 2006 by the DLHT shows, (a copy of which was availed to me and I took judicial notice thereof), the appellant (by then a respondent in the appeal) told the DLHT, and the DLHT so believed him, that, he has purchased 3 acres of land from the late Albin Malindimya (who was the appellant in that case). Nowhere was it stated

that such 3 acres of land were part of 24 acres of land purchased from Mzee Malindimya. Although Mr. Chambi contended that the DLHT's decision in the Appeal No. 3 of 2006 should not be counted, I do not consider that to be a right position since this court is entitled to take judicial notice of such a decision and can rightly rely on it. In my view, therefore, what the respondents contended, i.e., that, the land which the appellant purchased was 3 acres and hot 24 acres is a proven and settled fact which needs not seriously be looked at here or at this time. That being stated, what the appellant should have proven, albeit with documentary proof was whether, he certainly purchased 24 acres of land from the Malindimya^ family, and that fact should have been backed up by documentary evidence, given that it involved transfer of land. Since the transaction was not even documented as the appellant himself conceded before the DLHT, it would be difficult to rely solely on SM-2 to support his version of the story considering what the Appeal No.25 of 2006 by the DLHT shows. Page 15 of 17 In view of all that, and there being no strong and reliable evidence to support the appellant's claims, I find that the D'HLT's decision, which was to the effect that the appellant had not been able to prove his claims on the balance of probabilities, was a sound decision. Had there been

any documentation to that effect and above all, one routed through the respective Village Authorities at his place and witnesses by all neighbours to the respective land as this court stated in the above cited case of Priskila Mwainunu vs. Magongo Justus (supra), the whole scenario would have been different. From such an omission, one should be warned of transacting real property such as land without properly documenting such a deal, especially when it involves unserved village land held under customary rights of occupancy. Essentially, as the learned judge in the Priskila Mwainunu's case (supra) rightly observed, interested parties should better be guided by the ancient wisdom which the Wailing Prophet Jeremiah, as some refers to him, unleashed, under Divine inspiration, to the Israelites (and indeed to all mankind) stating that: "Fields shall be bought for money, and deeds shall be signed and sealed and witnessed, in the land of Benjamin, in the places about Jerusalem, and in the cities of Judah, in the cities of the hill country, in the cities of the Shephelah, and in the cities of the Negeb; for I will restore their fortunes, declares the Lord. "Jeremiah 32:44." (Emphasis added). Having so stated, I do not see any need to lengthen the discussion regarding the 3rd or the 4th grounds of appeal on a Page 16 of 17 one-by-one basis. It would be sufficient to state, as regards

the third ground of appeal, that, except for what I observed regarding the treatment of the testimony of SM-2, it cannot be said that the findings of the DLHT, regarding whether the appellant had ably proved his case, were a misdirection or erroneous. As for the rest of the grounds number four and five, taking onto account the fact that when the parties appeared before this court, they did not address such grounds of appeal, I will also not waste my time and energy on them as I consider that the appellant abandoned the same. In the upshot, this court settles for the following orders: 1. THAT, the present appeal is marked unsuccessful and thus dismissed in its entirety.

2. THAT, in the circumstances of this appeal, the dismissal is with no orders to costs as each party should bear its own costs. It is so ordered. DATED AT SUMBAWANGA ON THIS 22nd DAY OF JULY 2024 HE H! Right of Appeal fully Explained to the Parties. Page 17 of 17