Nyange Sipiteki kiria

I IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI LAND APPEAL NO. 6827 OF 2024 (Originating from Land Application No. 19 of 2019, District Land and Housing Tribunal for Simanjiro at Orkesumet) NYANGE SIPITEKI KIRI A..........................................................APPELLANT VERSUS PHILIPO YAMAHA....................................................................RESPONDENT JUDGMENT 14th August & 26th September 2024 KAMUZORA, J. Before the District Land and Housing Tribunal for Simanjiro (hereinafter referred to as the trial tribunal), the Appellant sued the Respondent for recovery of piece of land measuring about 4 acres situated at Langai A village, within Simanjiro district (hereinafter referred to as the suit land). According to the Appellant, the suit land is part of 10 acres which he was allocated by the Orkesumet village council in 2002. He claimed that after being allocated with the suit land he cleared it and was cultivating perennial crops. That, the Respondent trespassed into the suit land in 2019 and claimed that the suit land belonged to him. The Appellant Page 1 of 10 decided to institute a suit before the trial tribunal seeking for declaration that he is the lawful owner of the suit land, an order for eviction against the Respondent from the suit land and compensation at the sum of TZS. 50 million. After hearing the matter, the trial tribunal decided in favour of the Respondent by declaring him the lawful owner of the suit land. The Appellant was displeased with the trial tribunal's decision and preferred the instant appeal with four (4) grounds of appeal but during hearing the 4th ground was abandoned thus, will not be listed. The following are the grounds of appeal for determination by this court; 1. That, the district land and housing tribunal erred in law and fact to declare that the Respondent as the lawful owner o f the disputed land while the evidence on record shows that he failed to prove the same. 2. That, the district land and housing tribunal erred in law and fact to entertain the amended application which was amended beyond the tribunal's order. 3. That, the district land and housing tribunal erred in law and fact by pronouncing a judgment which was not based on the facts and evidence before it. When the appeal was called for hearing Mr. Joshua Minja learned advocate represented the Appellant while the Respondent appeared in person unrepresented. The appeal was disposed of orally. Page 2 of 10 In his submission in support of appeal, Mr. Minja started with the 2nd ground to which he faulted the trial tribunal for entertaining the matter while the application was amended beyond the tribunal's order. He argued that pleadings can be amended at any stage of the proceedings but within the scope as ordered by the court. He pointed out that, the proceedings show that the counsel for the applicant before the trial tribunal prayed for amendment of the application which intended to substitute a Swahili version application with English version. That, based on the prayer, the applicant was not supposed to add any fact except for translating the application into English language. However, the applicant changed the whole content of the application by raising new claims. He referred paragraph 4 of the original application which shows the value of the suit land as TZS 1,200,000/= and paragraph 4 of the amended application which shows the value of the suit land as TZS 5, 000,000/=. He also referred paragraph 6 of the original application which shows claim of 4 acres out of 25 acres which he was allocated by Langai village in 2002 and paragraph 6 of the amended application which shows that the applicant applied for 25 acres and was allocated 10 acres by Orkesumet village. He was of the view that the trial tribunal made its decision basing on the amended application without considering that such amendment was contrary to the tribunal's order. To buttress his arguments, the Page 3 of 10 learned advocate for the Appellant referred the case of Jovent Clavery Lushaka and others vs Bibiana Chacha, Civil Appeal No 236 of 2020, Tanzlii [2021 TZCA, 3527], page 18 and Tijani Tijani Mahunguhungu vs the Registered Trustees of Uamusho wa Wakiristu Tanzania, Civil Appeal No 292 of 2020 Tanzlii [2024 TZCA 175], page 17, 18 and 19. He reiterated his stance that since the trial tribunal made decision based on the application that was amended without the leave of the court, it resulted to miscarriage of justice. As to the 1st ground, Mr. Minja faulted the trial tribunal for declaring the Respondent as lawful owner of the suit land while he failed to prove ownership. He argued that, it is the requirement of the law that whoever alleges must prove. He referred section 100 of the Evidence Act, [Cap 6 R.E. 2022]. He submitted that, the trial tribunal considered mere words of the Respondent and his witnesses that he was allocated land by the village without any documents to support his evidence. That, the Respondent never presented a witness from the village authority to prove so. The Appellant's counsel argued that, section 8 of the Village Land Act, [Cap 114 R.E 2019] gives powers to the village council to deal with the village land on behalf of the villagers. That, under section 22 (1)(2) of the Land Use Planning Act, No. 6 of 2007, the village council is the land Page 4 of 10 use planning authority for the village and the plan has to be authorized by the village assembly. He submitted that, the Respondent failed to tender any document for approval by the village assembly that he was allocated land by the village and any other document proving allocation of land by the village. He referred the case of Barelia Karangirangi vs Asteria Myalwambwa, Civil Appeal No 237 of 2017 Tanzlii [2019 TZCA 51] at page 8 to 10, in which the court observed that, whoever complain has to prove on balance of probabilities. He pointed out that, the evidence of DW2 Omary Idd Senge was considered by the trial tribunal as corroborative evidence, but the same witness claimed in his evidence that he was not aware on how the Respondent acquired the farm. To him, DW2's evidence did not corroborate the Respondent's evidence as he was not aware on how the Respondent got the disputed land. He insisted that, the Respondent's evidence that he was allocated land by the village authority was weak for it was not supported by documentary evidence. He referred the case of Samwel Japhet Kaaya vs Republic, Criminal Appeal No 40 of 2017 Tanzlii [2020 TZCA 171], page 14 and 15. In his submission to the 3rd ground of appeal, the learned advocate faulted the trial tribunal for making a decision without considering evidence tendered before it. Referring the case of Hamis Rajabu Dibagula vs Republic, Criminal Appeal No. 53 of 2001, Tanzlii [2003 Page 5 of 10 TZCA 35] the Appellant's counsel submitted that, it is the requirement of the law that the decision of the court has to consider the evidence in record. He submitted that, the trial tribunal declared the Respondent the lawful owner of 24 acres while the claim was 4 acres and no counter claim was raised by the Respondent for the land measuring 24 acres. He referred the case of Jeremia Shemweta vs Republic, [1985] TLR 228 and Omary Abdallah Kilua vs Joseph Rashid Mtunguja, Civil Appeal No 178 of 2019 Tanzlii [2020 TCA 1791], page 10. He maintained the trial tribunal did not give reason for declaring the Respondent as the owner of 24 acres of land while the suit land was 4 acres only. He urged the court to allow the appeal with costs. In reply, the Respondent had nothing much to say. He simply submitted that, the suit land belongs to him and he was properly declared the winner by the trial tribunal. He explained that, the land was measured by the trial tribunal and was found to be 24 acres and there is a house on the suit land and six planted trees. He maintained that, the suit land was cleared by Omary Idd. In rejoinder Mr. Minja reiterated that, there was no evidence proving that the Respondent was the owner of the disputed land. He maintained that, the trial tribunal was wrong to measure 24 acres while the land in Page 6 of 10 dispute was 4 acres only and not 24 acres. He added that Omary Idd DW2 did not state on how the Respondent got the suit land. Having gone through the parties' rival submissions and the record of the trial tribunal, I will start with the 2nd ground of appeal, as so opted by the counsel for the appellant. In this ground, it is interesting to see that the same party who prayed for amendment is the one faulting the trial tribunal for acting on his mistakes made in such amendment. Nevertheless, this court will assess if there was error committed by the trial tribunal and if there was any miscarriage of justice. In number of cases the Court of Appeal has set the proper procedures to be followed by courts in allowing amendment of the pleadings. In the case of Jovent Clavery Rushaka & Another vs Bibiana Chacha Civil Appeal No. 236 of 2020 Court of Appeal of Tanzania at Dar es Salaam (unreported), it was observed that; "it is settled law that a pleading can be amended at any stage o f the proceedings only to the extent allowed by the court on such terms as may be just and such amendment should be limited to what will be necessary for determining the real question in disputed between the parties. "[Emphasis added]. The proceedings of the trial tribunal show that on 29/1/2021 Mr. Rumende learned advocate who was representing the applicant before Page 7 of 10 the trial tribunal (the Appellant in this appeal) prayed for leave to amend the application which was originally prepared in Swahili language contrary to the 2nd Schedule of GN No. 174 of 2003 which requires the application form to be in English. The trial tribunal granted the prayer sought and ordered amended application to be filed with 14 days. The prayer by Mr. Rumende was specifically for translating the application into English language to meet the requirement of the law and nothing else. Basically, the order allowing the amendment was restrictive to the extent of the counsel's prayer meaning, translating from Swahili to English. I agree with the counsel for the Appellant that the amendment made went beyond the scope prayed for and allowed by the trial tribunal in the sense that even the description, location and value of the suit property was changed. While the original application in Swahili version shows the value of the suit land as TZS 1,200,000/=, the amended application in English version shows the value of the suit land as TZS 5,000,000. Also, while in the original application the applicant prayed for TZS. 2 million as compensation, the claim for compensation in the amended application is TZS 50 million. Again, while in the original application the applicant stated that he was allocated a piece of land measuring 25 acres by Langai village, in the amended application the Page 8 of 10 applicant claimed that he applied for 25 acres but he was allocated 10 acres by Orkesumet village council. After such amendment no defence was made to respond to those new claims. This means that new facts were raised but the record is conspicuous silent as why the Respondent did not file the amended written statement. In that regard, the Respondent had no written statement of defence not only to contest the Appellant's claims but also to support his claims. It was the tribunal's duty to see to it if the amendment was within the ambit of the prayer made by the counsel for the applicant and make proper directions or order. Since no defence was filed by the Respondent on the amended application, there cannot be proper defence from the Respondent which the trial tribunal could rely upon to decide in favour of the Respondent. In the case of Salum Abdalla Chacha t/a Rahma Tailors v. The Loans and Advances Realization Trust and 2 Others, Civil Appeal No. 49 of 1997 (unreported) the Court of Appeal insisted, among other things, that: "The amendment must aim at and be limited to what will be necessary for determining the real questions in dispute between the parties.... Any amendment must not result in a substitution o f an entirely new case”. [Emphasis added] Page 9 of 10 With the above noted fact, there was no defence to the new pleaded facts thus, not easy to point out the real question under dispute between the parties. Besides, the amendment is as equal as substitution of an entirely new case. I therefore agree with the counsel for the Appellant that although the amendment was made in the Appellant's favour, by proceeding with the matter on its merits, the trial tribunal seriously erred and such error resulted into miscarriage of justice. It should have strike out the suit. Basing on the above discussion, I allow the appeal by nullifying the trial tribunal's proceedings and the decision thereof. However, since the nullification was triggered by the Appellant's conducts of disregarding his prayer and the trial tribunal's order, I will not issue an order as to costs. The 2nd ground of appeal sufficiently disposes of the appeal thus I will not labour in discussing the rest of the grounds. Any interested party is at liberty to institute a fresh suit before the tribunal or court with competent jurisdiction. DATED at BABATI this 26th day of September, 2024. Page 10 of 10