20150908 TZHC Mwanza

,.' I . . :1· .;-,1 . . · IN THE HIGH COURT OF TANZANIA ,..j i.l_ ATMWANZA ':1 l l MISC LAND CASE APPEAL NO. 53 OF 2014 1! (From the Decision of the District Land and Housing Tribunal of Musoma District at Musoma In Land case Appeal No 154 of 2012 and Original Ward tribunal of Marotonga Ward in Application No. 01 I of 2012) NYABATENDE KUMARI ................... ~ ... ~ ................... APPELLANT. VERSUS MAGATI ZAMBERI .................................................RES PO ND ENT JUDGEMENT Ebrahim, J. This appeal emanates from the Ward Tribunal of Morotonga, V\ tJ---- Application No. 1/2012 where the appellant herein was unsuccessfully sued by the respondent. He appealed to the District Land and Housing Tribunal, vide Appeal No 154 of 2012 where the 1 j u -~ I 'I matter was decided against his favor. Still aggrieved, he has lodged l an appeal to this Court. The brief facts of the ca$e that could be gathered from the proceedings of the trial tribunal is that a complaint was lodged by the respondent that the appellant has encroached into his land that he was allocated by the hamlet tribunal on a meeting held onl0th, February, 2007.The appellant however objected such allocation and stated that he has been developing the disputed land since 2003 and he was given the lartd by his grandfather in 1989. In 2003 he planted sisal plants and in 2005 he built a foundation and added the fence of sisal in 2011. However, the dispute arose in 2012 when he built two houses at the disputed land. The appeal at hand is challenging the decision and/ or order of the Honorable Chairman of the District Land and Housing Tribunal for Musoma at Musoma dated 7 th March, 2014. The appellant has • raised three (3) grounds of appeal namely; 1. That Musoma District Land and Housing tribunal erred in law and act 1n dismissing . the appellant's appeal without takinginto legal justification documentary evidence proving 2 - ½¼ - .·'' j ,·, that the respondent herein is the legal owner over the disputed . land. 2. That Musoma District Land and Housing tribunal erred in law and fact in upholding the decision of Morotonga Ward Tribunal while the same was invalid for failure to accord the two appellants witnesses right to be heard at the time of visiting the locus in quo. 3. That the District land and Housing tribunal erred in law upholding the decision. of Morotonga ward tribunal of which was void on the reasons that it entertained a disputed suit of which it had no jurisdiction to· try the same as the subject matter was beyond its jurisdiction. At the hearing of the appeal, the appellant was advocated by Mr. Kat~mi, learned advocate . and the respondent was unrepresented. Mr. Katemi opted to abandon the third ground of appeal and therefore continued to argue the first and second grounds of appeai. He submitted before the court on the first ground of appeal that, they challenge , the decision of DLHT to legalize the ownership of 3 = .j the dispute land for there was no reason adduced and enough documentary evidence to make the respondent a legal owner of the said land. He contended that the DLHT erred by upholding the decision of Ward Tribunal of Murotonga which relied on the hamlet meeting of 10/2/2007 whose minutes show that the respondent was one of the people who was awarded the plot;while in the whole proceedings from the Ward tribunal, it shows that the appellant owned the area from 1989 and started to develop the land from 2003. He con tended further that the meeting of the hamlet has no mandate to allocate or confirm ownership of land to the respondent, considering the fact that by then the appellant was also in the said land. The power to allocate land is vested under village land council as stipulated under the land Act No 4/ 1999. Further, the issue of the power to allocate land was questioned in the proceedings of Ward tribunal as to whether the village council was involved and the respondent could not give explanation to the same.He insisted on the point that the evidence used to give right of ownership to the respondent was illegal as it was not signed by other members; it 4 I = was only signed by the chairman.Thus, the whole proceedings concerning this case was not correct and therefore prayed that their 1st ground of appeal be allowed. Mr. Katemi submitted further on the 2 nd ground of appeal, that the ·whole proceedings from hamlet meeting to the ward 1 ; tribunal and DLHT shows that two (2) important witnesses of the appellant who could have evidence the ownership of the land who ' are Philipa Makuru and Mgesi Kumaji were neither called non allowed to give evidence when the tribunals visited the locus quo. DLHT was biased as when it visited the locus quo it heard the evidence from the respondent side only. This is fundamental error and leads to miscarriage of justice and as a result it vitiates proceedings. Mr. Katemi therefore prayed that their grounds of appeal be allowed with costs and all that prayed in the petition of appeal be granted. In reply, the respondent stated that he is the legal owner of the disputed land. He applied for the land from the village which directed them to apply to the hamlet that on~ wishes to own the land. He stated further that it was the village council together with 5 the hamlet ward that showed him the disputed land. In 2010 the village was cancelled therefore the area was under the hamlets and ward councils. That being the case there is enough documentary evidence and evidence was adduced by the former village chairman .. I He contested the appellant's claim that he owned the land from his grandfather, and that the appellant was supposed to give evidence of how he inherited the same. He therefore submitted that the hamlet proceeding was legal. As for issue of judgment of Ward Tribunal not being signed by members, the respondent said that the proceedings showed that all members agreed that he was the legal owner of the piece of land and they all signed. Replying on the 2 nd ground of appeal, the respondent ·contended that the said 2 witnesses of the appellant adduced their evidence at the Ward Tribunal. Philipa Makuru was DW 1. When the tribunal visited locus quo, DW 1 wanted to adduce evidence again and he was told that he has already been heard. Further, one Mgesi Kumar adduced his whole evidence but refused to sign his statement. Therefore all his witnesses were given chance to adduce 6 = -z·---:et-W evidence. The day that DLHT visited locus quo, all parties were present together with Mgesi Kumar. At the scene, the Chairman . 1' ' talked randomly with people who had gathered _at the locus quo. Therefore the evidence of the locus quo taken by D LHT was not given by witnesses of the respondent but people who gathered there. The respondent therefore prayed for this court to uphold the decision of the DLHT so that justice should be done. -, ~ __/ I In rejoinder, Mr. Katemi insisted that their argument isttftatV 1I they .question the legality and proceedings of the hamlet as they ' -1 had no authority to grant the respondent ownership of the land. He stated that the respondent has not replied to the same. Since this court it derived by what is the records, there is no record that shows that the village council transferred the authority to the hamlet council. He submitted further that there is no any documentary proof that the respondent is the rightful ovvner of the piece of land. In addition, it is the respondent who was supposed to prove that the appellant did not inherit the disputed land from.his grandfather. Nevertheless, the same was not raised in the trial court hence cannot be raised now. ·Mr. Katemi clarified to the court that 7 ·., .. - , V the members who signed are those from the Ward Tribunals, but i I ·l the appellant is contesting the absence of the signature of members ,.: .i F./. t t; : in the hamlet proceedings that led to the respondent being awarded -~- the land in dispute. Also what the appellant is referring in to the _. j proceedings of the Ward Tribunal is absence of answers to the I , pertinent questions put forward by the Tribunal.Therefore in all .l proceedings from Ward to DLHT, it does not show why those important witnesses did not adduce evidence. He thus 1 maintainedthe prayers that appeal should be allowed with cost and l- -==-- ' all that prayed be granted. Before I proceed to determine this appeal, I wish to point out that, this being a second~eal, the court should rarely interfere wit~oncurrent findings ~ fact of the lower courts, unless there is seriousmisapprehension of the nature, quantity and quality of the ~ evidence, or ~reach of some principle of latee Saluni. Mhando vs. Republic [1993]TLR 170). I have keenly gone through the records of the proceedings of the Ward Tribunal as well as District Land and Housing Tribunal for Mara. 8 I ' I The respondent sued the appellant that he has encroached into his land that he was allocated by the village council 2008 through hamlet chairman. He brought the secretary of the hamlet as a witness, one Biseko Mijami who testified that they allocated l . d fourteen (14) plots. However, when he was cross examined as to whether as a secretary of the hamlet he has mandate to allocate the ke plots.~ ) replied that he does· not have that authority and he said that during such exercise they did not even inform the appellant. Further to that there was no any documentary evidence that they availed the respondent to show that he was allocated such plot. Furth~r, according to the facts on records, there is no dispute that there were buildings, foundations when the so called allocation happened. The same kind of evidence was given by one Mange Stephen on part of the respondent. The appellant called one Philipa Makuru who evidenced that the said plot was the property of the grandfather of the appellant and he was given in 1989 when Mr. Makuru was the ten cell leader. The Ward Tribunal as well as DLHT at:different occasions visited locus quo.· Accordingly, this court asks itself as to whether the Ward 9 = ', j ·r· V Tribunal considered evidence on record in reaching its decision and ,', J that the hamlet authority had any mandate to allocate the disputed , ] plot or it was given the authority by the Village Council to conduct that exercise. ,_' The mandate to allocate village land is vested with Village Council under section 12 of Act No 5/ 1999, Village 1.§.nd Act, CAP 114 R.E. 2002. The secretary of the hamlet evidenced before the I trial tribunal that they did not get any authority from the village 1 council to allocate those plot. In the absence of the authority from the village council, where did they derive the mandate to allocate the said plot? Further, the respondent filed minutes of the Mugumu hamlet stating that it is from those minutes that they were allocated those plots. However, going through the minutes, all that could be gathered is that the meeting directed that villagers should apply for allocation of .plots in the area. Nothing suggested that the respondent was· allocated the appellant's plot. ~ ~ere is no any kind of document to evidence· that respondent was allocated the disputed plot hence he is the owner of the disputed land. I cannot fathom that the village council would allocate the 10 • I land without documentary evidence to prove the same. Since the respondent was the one who was claiming that his land was encroached, then he had a duty to prove the same in the balance of probability, something that in my view he failed miserably. The visiting of locus quo by both tribunal, does not vindicate the fact that there was no proof of the allocation of the disputed land by the village council. Therefore, I hasten to agree with Mr. Katemi that the hamlet had no mandate to allocate the disputed land to the respondent. I also find that in the absence of documentary evidence by the respondent to prove ownership, the ward tribunal misapprehended the nature and quality of the evidence of the appellant who has proved actual possession of the disputed land and started developing it (animus possedendi). I therefore, allow the first ground of appeal. On the remaining ground of appeal, I ·have no doubt that it has been canvassed in the first ground as I said earlier, visiting of locus quo had no meaning as there was no documentary proof of land allocation and also that the said allocation if any was done by the body that had no authority to do so. ·•.<.-..: t :,~~· \> ,', t:+:< l, •. , ' In the premises, I allow the appeal with costs. The judgements ,I of the Ward Tribunal of Marotortga as well as judgement and decree .1 I of the district land and housing tribunal for Mara are here by set aside. The appellant is declared the rightful owner of the disputed ,- r land. ·t ! I l j R.A. Ebrahim JUDGE l I 08/09/2015 12