omary rajabu maganga vs ally nyambwilo 2022 tzhclandd 641 27 june 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPEAL NO. 248 OF 2021 (Arising from the decision of Kibaha Land & Housing Tribunal in Land Appeal No. 78 of 2020; Originating from Janga Ward Tribunal at Mlandizi in Application No. 17 of 2020) OMARY RAJABU MGANGA APPELLANT VERSUS ALLY NYAMBWILO ...RESPONDENT Date of Last Order: 25.05.2022 Date of Judgment: 27.06.2022 JUDGMENT V.L. MAKANI. J. This is a second appeal by Omary Rajabu Mganga. The matter originated from Janga Ward Tribunai (the Ward Tribunal) where the appellant herein lost. He then appealed to Kibatia District Land and Housing Tribunal (the District Tribunal) and again lost. Being dissatisfied with the decision of the District Tribunal, tje has preferred this appeal on the basis of the following grounds: 1. That the tribunal chairman erred both in /aw in holding that the appellants claim over the suit land were time barred in total disregard that the dispute over the size ofappellants land arose in the year 2020 when a piece of iand was apportioned by the respondent allegedly that such piece ofiand was not part of the land which was boughtby the respondent on behaifofthe appellant in the year2005. 2. That the tribunal chairman erred both In law In upholding the decision of the ward tribunal that the respondent Is the lawful owner ofthe disputed piece of land without any sufficientproof. The appellant has prayed for the appeal to be allowed and the decision of the District Tribunal be quashed and set aside. With leave of the court the appeal was argued by way of written submissions. Submissions by the appellant were drawn and filed Mr. Mashiku J. Sabasaba Advocate. In opposition, Mr. Mutalemwa Bugeza, Advocate drew and filed submlsslqii in reply on behalf of the respondent. On the first ground of appeal, Mr. Sabasaba said the findings by the District Tribunal that the matter is time barred is erroneous. That from 2005 to 2020 there was no dispute over the suit land. That the dispute arose in 2020 when respondent who had been eptrgsted to purchase the land on behalf of the appellant apportioned the piece of land measuring 70 square metres(5x14)claiming that the said portion was not part of the land he purchased for the appellant in the year 2005. He said before the year 2020 the appellant had been enjoying peaceful occupation of his iand without any disturbance from the respondent and the appellant had always believed that the whole land belonged to him as there had never been any demarcations suggesting that the (4 x 14 metres) was not part of his iand. On the second ground, Mr. Sabasaba said that the respondent who is the cousin of the appeiiant was entrusted to purchase the suit iand by the appeiiant and Indeed he purchased and handed over the respective suit iand to the appellant in the year 2Q05. That the vendor of the respective iand is not known to the appellant but only known to the respondent. He said that the demarcation of the purchased land was in the knowledge of the respondent, the purchaser. That appellant came to know his land and Its demafcatlpn through the respondent. He said that the respondent before been deciared the lawfui owner of the portion of land ought to have proved by evidence that the said portion was not part of the iand which he purchased for the appellant. That the respondent ought to have brought the vendor and any other person as witnesses who witnessed the disposition off the suit iand. he said that such evidence was not adduced by the respondent to support his claim. He insisted that the piece of iand was therefore uniawfully apportioned from appeliant's iand. He thus prayed for the appeal to be allowed with costs and the decision of the district tribunal be quashed and set aside. In repiy, Mr. Bugeza said that the appeiiant is referring to Land Appeai No.18 of 2020 decided on 30/09/2021 which is a non-existing case among the parties. He said the appeiiant has aiso faiied to put into consideration that the grounds which were not pleaded or taken in to determination in the Petition of Appeai No.78 of 2020 before the District Tribunai cannot be raised in this instant appeai. He referred the case of Hotel Travertine Limitecl and two others vs National Bank of Commerce Limited (2006) JLR 41 and the case of Ismail Seleman Nole vs. Republic, Cr|m|nal Appeal No. 117 of 2003 (CAT-Mtwara)(unreported). He said at the District Tribunai the appeiiant advanced three grounds of appeai which are quite distinct from the matter at hand. He said that the instant memorandum of appeai is not assimiiated with thpse raised in the District Tribunai. He observed that the court cannot entertain the instant memorandum of appeai since the appeiiant has misdirected himseif when he abandoned the grounds that were determined at the District Tribunai. On the first ground of appeal Mr. Bugeza said that, the matter is time barred. He said the appellant stated at the Ward Tribunal: " nilimtuma mjomba wangu kununua kiwanja kwakuwa niUkua naishi Dar 2005 nimeamia mlandizi rasimi baada ya kuamia nikaanza kuchunguza maH zangu, nikakuta kunaupungufu wa mahesabu niHopewa..." He said from the appellant's evidence there is auspicious evidence that the matter is time barred when it was instituted around 2020 at the Ward Tribunal contrary to part I Item 22 of the Law of Limitation Act, Cap 89 RE 2019 (the Limitation Act) On the second ground of appeal Mr. Bugeza said that, the appellant went out of track when he failed to apprehend the legal principles applied before the court in section 110(1)(2)and section 111 of the evidence Act Cap 6 RE 2019 (the Evidence Act) as to who carries the burden of proof. That the appellant was legally bound to prove ownership since he claimed the land at the first instance. He added that on the site visit conducted on 19/05/2020 it was discovered that half an acre belongs to the appellant while the rest of the land belongs to the respondent. He said the appellant had no claim of right over the land which belonged to the respondent. Mr. Bugeza prayed for this appeal to be dismissed with costs. In his rejoinder, Mr. Sabasaba reiterated his main submission and added that, he acknowledges the typing error in referring the decision of the District Tribunal as Appeal No.18 of 2020 Instead of Appeal No.78 of 2020. That the first ground of appeal has been derived from the Tribunal's finding reflected in the second page of the judgment. He added that the appellant is challenging the findings of the Tribunal on ownership of the suit land measuring (5 x Ifj) which was granted to the respondent by the Ward Tribunal, and the decision was upheld by the District Tribunal. That it is the same ground which is being challenged by the appellant in the second ground of appeal. He Insisted that the cause of action arose in 2020 when respondent the grabbed the suit land measuring(5 x 14). That although tlje appellant yyas not satisfied with the size of land handed to him by respondent in 2005, he opted to reserve his dissatisfaction for the Interest of good relationship with the respondent, however, the appellant was aggrieved when respondent went on grabbing a portion from the same land. I have gone through the submissions by Counsei for the parties, and I have aiso gone through the record of the Tribunals. The main issue for consideration is whether this appeal has merit. Mr. Bugeza submitted that the appellant is improperly arguing the ground of time barred as it was not raised in the first appellate court hence cannot be argued in the second appeal. Precisely, this ground was not raised by the appellant at the District Tribunal, however, the issue of time was raised and argued suo motto by the District Tribunal. The appellant was dissatisfied and so he was not at fault in raising it as a ground of appeal in this present appeal. The position would have been different if the said issue of time was not discussed by the District Tribunal at ail. This complaint has not merit and t is disregarded. On the merit of this appeal, and in addition to the foregoing. It is Mr. Saba Saba's argument that the matter at hand is not time barred. That the appellant purchased the suit land back in 2005, however, it was not, until 2020 when he inspected the same only to discover that a piece of land measuring 5x 15 Was missing. In that sense, the appellant's cause of action against the respondent arose in 2020 after discovering that his land was missing by 5 x 15. Subsequently, the matter is not time barred as the matter was first instituted at the Ward Tribunal in the year 2020 as Application No. 17 of 2020. On the second ground of appeal, Mr. Sabasaba is of the view that the District Tribunal was at fault in upholding the decision of the Ward Tribunal that respondent is the lawful owner of the suit land. According to the District Tribunal, the appellant had no proof as to his allegation of ownership of suit land. I agree with the District Tribunal because there is no proof of the size of the land of which the appellant ordered the respondent to purchase on his behalf. In fact, there is no proof that appellant had at any time instructed the respondent to purchase the said plot of land on his behalf. The appellant therefore canno firmly claim that the size purchased did not match the amount and size he ordered the respondent to purchase for him. In the absence of proof by the appellant, as correctly put forward by Mr. Bugeza, it would be difficult for the appellant to claim the alleged missing 5 x 15 piece of iand from respondent. The ioss report by the appeliant cannot be taken to be a conciusive proof of the appeiiant's ownership of the suit land but the Sale Agreement. And as correctly observed by Mr. Bugeza, the appellant who alleged that there was 8 missing a piece of land measured 5 x 15 had an obligation of proving this under section 110 of the Evidence Act which duty was not fulfilled by the appellant. In the case of Hemed Said vs Mohamed Mbiiu (1984)TLR 113, it was started that: "According to the (aw, both parties to the suit cannot taiiy but the person whose evidence is heavier than the other, is the one who must win". It is obvious that appellant had no proof of his claim against respondent as his proof was wanting. In such a situation he cannot be granted the right of which he has no proof. Consequently, the District Tribunal was correct in deciding that appellant had no proof j to justify his claim. In the end result this appeal has no merit and it is hereby dismissed with costs. It is so ordered. '.L. MAKAKiI JUDGE I 27/06/2022