Patrick Marwa Nyaborogo

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOROGORO SUB REGISTRY AT MOROGORO LAND APPEAL NO. 5994 OF 2024 (Appealfrom the Decision ofthe District Land and Housing Tribunalfor Kiiosa at Kiiosa in Land Application No 4 of2021) BETWEEN PATRICK MARWA NYABOROGO APPELLANT VERSUS VICTOR SWELLA & 10 OTHERS RESPONDENTS JUDGMENT MRUMA,J. Patrick Marwa Nyaborogo,the Appellant herein instituted Land Application No 4 of 2021 before the District Land and Housing Tribunal for Kiiosa District at Kiiosa against 11 Respondents praying for among other orders and order declaring him a sole rightful owner of a piece of land measuring 78. 31 acres located at Kitongoji cha Mbuyuni Chini (i.e. Mbuyuni Chini neighbourhood), at Ulaya Mbuyuni Village in Kilosa District Morogoro of Region. In his application the Appellant averred that he obtained the suit land on October 2023 by way of purchase from one Hassan Omari Nyabwenda at a purchase price of Tanzania Shillings 9,000,000(say Nine Million) only, and that since then he had been in peacefully possession of land. It was his statement that he developed the suit land by clearing it and commenced agricultural activities. In 2017 he noticed that the Respondents had trespassed onto the Southern- East part of his land. He complained to the authorities but the Respondents refused to vacate and hence these proceedings. The Respondents denied the allegations and claimed that their occupations of the suit land were lawfully as they were dully allocated the same by the Village Council. After hearing evidence from both sides the trial tribunal entered judgment in favour of the Respondents. The Appellant was aggrieved this appeal with the grounds that- 1. The Trial chairman erred in law by failing to analyse properly Exhibit AEland AE2 via a vis the locus in quo made by the Tribunal to the land in dispute hence arrived at erroneous decision that the Appellant had failed to prove ownership of the disputed land save for seven acres without starting the boundaries of the said land; 2. The trial chairman erred in law by failing to give reasons to depart from opinion of the Tribunal Assessors who opined that the land in dispute belongs to the Appellant; 3. The trial chairman did not take cognisance of the fact that the land in dispute was not surveyed therefore its boundaries become vital, that the size stated in Sale Agreement was mere estimation, and they were undisputed at the trial and during the visit of locus in quo, hence the erroneous decision that the Appellant managed to establish ownership of the seven acres only and that the Respondents are lawfully owners of twenty eight acres which are within the boundaries of the sale Agreement Exhibit AEl; 4. Having visited the locus in quo the Appellant and having managed to identify boundaries as per the Sale Agreement and that the land in dispute was within the boundaries stated in Sale Agreement,then the trial chairman erred in holding that the Appellant has managed to prove of only seven acres and that the Respondents are lawful owners of 28 acres without stating the boundaries of neither seven acres nor twenty eight acres hence the judgment and decree cannot be executed. 5. The Trial Chairman erred in law and facts for not taking into consideration submission made by parties and findings of locus in quo conducted by the Tribunal hence the erroneous decision that the Respondents were lawfully allocated the land measuring 28 acres which has no boundaries and can not be identified on the ground. 6. Having declared that the Respondents are trespassers of the Appellant's land in dispute, then the Trial Tribunal erred in law by not awarding general damages for the whole period that the Respondents were in unlawful occupation of the Land in dispute. 7. The Trial Tribunal erred in law in holding that the Appellant did not prove the case on the balance of probability without considering the evidence on record and the fact that the dispute of ownership of land must be strictly proved. The Appellant now seeks this court to set aside the Judgment and Decree of the Trial Tribunal and grant the prayers made in Application. At the hearing of this appeal, the Appellant was represented by Mr Dickson Johnson Ngowi and Mr. Robert Makwaiya learned advocates while the Respondents were represented by Ms. Kay Makame Zumo also learned advocate. The appeal was argued by way of written submissions. In arguing grounds of appeal, Mr. Dickson Johnson Ngowl consolidated ground No. 1, 3 and 4 and argued them together. The learned counsel submitted that it is trite law that an un-surveyed land (or unregistered land) can be identified by its location, size and boundaries or demarcations while un-surveyed land is identifiable by its location size and boundaries referring this court to the decisions of the Court of Appeal in cases of Daniel Kanunda (as Administrator of the estate of the late Mbalu Kashasha Bulunda vs Masaka Ibeho and 4 Others, Land Appeal No. 20 of 2015 which was quoted in the case of Chiku Ramadhani Issa vs Christian Kagunia Land Appeal No 7 of 2023 (both Unreported). The learned counsel submitted further that on the evidence adduced it was not in dispute that on 1^^ October 2013, the ll^'' Respondent Hassan Omary Nyabweda and the Appellant executed a Sale Agreement (Exhibit EA 1) which was for purchase of a piece of land estimated to be 50 acres. According to the agreement (Exhibit EAl), the boundaries of that land were described as follows; that to the East there was a land owned by one Salum Yohana Mgogo, to the West there was a land owned by the family of one Kilongola while to the South there was a land owned by the family of one Mzee Rihondo and to the North there waere farms owned by Lusulo and Mr Manyama. It was further submissions of the learned counsel that within the boundaries stated in the agreement (Exhibit AEl), the Appellant caused survey and valuation exercise to be conducted and a valuation report thereof (Exhibit AE2) be prepared. According to the report the size of the land was established to be 78. 31 acres. According to the learned counsel, when the tribunal visited a sine qua the following were observed: one that the land surveyed was 78.31 acres; two that the market value at the time was Tanzania Shillings 19, 171, 000/=; three that the land, trespassed by the Respondents were identified by using coordinates N, P, Q, R, S, T, U and W. It was further submissions of the learned counsel that in the said visit of the locus in quo it was established that boundaries established in Exhibit AEl and the entire land within the said boundaries was the Appellant's land which he purchased from the Respondent. The learned counsel contended that it is inconceivable that the trial chairman decided to depart from and disregard the empirical evidence and observations made in locus in quo. On the evidence adduced by the 1^ to 10'^ Respondents to support their presence in the disputed land, the learned counsel submitted that the said Respondents failed to prove that the land they are claiming to be theirs were outside the Appellant's land. He stated that because the Respondent had pleaded that their land was outside the Appellant's land they were bound by their pleadings to prove what they had asserted therein. The learned counsel cited the case of Maiko MIemigwa Vems Shabani Mkala Land Appeal No 33 of 2023 (unreported). He stated that Respondent testified to the effect the land in dispute was originally owned by the Village Council, but it was the same Village council which took part in the sale agreement between the Appellant and Respondent. The council contended that the General Assembly Resolution (Exhibit R2) was made contrary to the requirement of section 45 of the Village Land Act [Cap 113 R.E. 2019]. He said that the decree of the trial tribunal cannot be executed for failure to state the boundaries of 28 acres which were declared to be the property of the Respondent and seven acres which were declared to be the property of the Appellant as they did not show demarcations of the two pieces of land and hence unenforceable decree. He said that the 28 acres and 7 acres are not known. Submitting in support of the second ground, the learned counsel contended that in terms of section 24 (1) of the Land Disputes Act [Cap 216 R.E. 2019], the trial Chairman must take into account opinion of Assessors and in the event he differs with them, he must give reasons for differing with such opinion. He fortified his submissions by citing the case of Elilumba Eliezer Versus Job Jaja Civil Appeal No 30 of 2020, and stated that the learned Chairman did not assign any reason for differing with his Assessors opinions. Submitting in support of the 5^^ and 7^'' grounds, the learned counsel contended that while the Respondents' evidence and particularly RWl testified to the effect that they were allocated the suit land by the Village Council, the evidence on record established that the land in dispute had never been owned by the Village Council therefore the said council could not have allocated the land which he did not have. He cited the decision of the Court of Appeal in the case Magambazi Mine Company Limited and 4 others Versus Kidee Mining(T)Limited Civil Appeal No 238 and 239 of 2018where it was held that one cannot give that he does not have. Submitting with regard to the alleged allocation of the suit land to the Respondents by the Village Land Council the learned counsel contended that the Resolution purporting to allocate the land to the Respondents contravened the requirements of Section 10 (1) of the Village Land Act [Cap 114 R.E. 2019] which prohibits conflict of interest in that the second Respondent was a member of allocating Committee but was also an applicant who was allocated two acres of the suit land. Further to that it is the submissions of the learned counsel that the said resolution also violated Section 3 (1) (g) of the Village Land Act regarding fair compensation and Section 45 of the same Act which govern procedures of acquiring abandoned land under the customary right of occupancy. According to the learned counsel the Resolution also contravened the provision of Section 32 (1) and (2) of the Act which governs application for allocation of lands in that the allocation was made after the Notice of Intention to Sue (Exhibit AE5) was issued. Still on the 5^^ and 7^^ grounds the leaned counsel contended that it is inconceivable that the Village council would have cooperated with the Respondent to sale the village land and witness the Sale Agreement (Exhibit AEl). Submitting in support of the 6'^'^ ground, counsel for the Appellant contended that having found that the Respondent were trespassers in seven acres of land belonging to the Appellant, the trial trial tribunal ought to have ordered them to pay to the Appellant compensation in terms of general damages. To fortify his position he cited the case of Esther Kimbulu & 2 Others Versus Piganio Mwita Civil Appeal No 484 of 2020, and contended that once the trial tribunal declared the Respondents trespasser of seven (7) acres of the land in disputed, then it was fair to assess compensation in terms of general damages and award it to the Appellant for the wrongfully occupation of the land he referred this court to its own decision in the case of Finca Microfinance Bank Ltd Versus Mohamed Omary Magavu,CIVIL APPEAL NO. 26 OF 2020, High Court of Tanzania Mbeya District Registry at Mbeya (unreported). On her part Ms. Kay Zumo, counsel for Respondents submitted that the first ground has no merit as it is crystal clear that the trial tribunal considered the evidential in Exhibits AE 1 and AE2. She said that Exhibit AEl is silent on the method used in measuring the size of the suit land as the said Exhibit does not state whether the land was measured by using feet, meters, or yards. According to the learned counsel Exhibit AEl speaks for itself that it was 50 acres and not 78 acres of land therefore in its judgment the trial tribunal took into account the content of exhibit AEl. In the same vein it is the learned counsel's contention that Exhibit AE2, which is a valuation report is also silent on how the Appellant acquired the remaining 28 acres therefore as far as the question regarding acquisition is concerned it is irrelevant. The learned counsel submitted that when the trial tribunal visited locus in quo AW4 who was present testified that the portion of the size of the suit land which was sold to the 10 Appellant was not measured which Implied that the size of the land sold to the Appellant was not established at the time of sale. On the evaluation of the evidence on record It was the counsel for Respondent's contention that the trial chairman did properly evaluate the evidence adduced and explained why he differed with Assessors opinion. It is therefore, the learned counsel's contention that the trial tribunal properly evaluated the evidence including Exhibits AEl and AE2 and arrived at a correct decision of the a matter. On the burden of proof, the learned counsel submitted that on the evidence on record the Appellant failed to discharge the burden of proof which requires that he who alleges must prove. She said that Appellant's witness AW4 and AW2 didn't assist the trial tribunal to know the size of the land sold to the Appellant. According to the learned counsel whereas AW4 told the tribunal that in the village when one buys farms, they do not measure the size of land on sale but they just boundaries of that land to each other, AW2 stated that she did not remember the size of the farm. She said that on that evidence the Appellant's assertions that he possess a total of 78 acres remain unsupported and should not form the basis for a decision. The learned counsel submitted that the trial tribunal correctly applied the provision of Section 110(1) of the Evidence Act as It was 11 decided by the Court of Appeal (at Mwanza)in the case of Tanzania Fish Processors Limited Vs Christopher Luhanya, Civil Appeal No. 21 of 2010 and contended that since Exhibit AEl shows that the Appellant acquired 50 acres only it was correct for the trial tribunal to dismiss his claim for 78 acres. On the burden of proof the learned counsel submitted that since there was no evidence which shows that the necessary party sold the extra 28 acres to the appellant, the burden was on the appellant to prove how he acquired the whole of 78 acres were acquired. On the claims of general damages of 50M which was pleaded in the amended application, the learned counsel submitted that awarding general damages is in court's discretion as it was held by the Court of Appeal in the cases of Anthony Ngoo vs. Davis Anthony Ngoo, Civil Appeal No.25 of 201 Vidoba Freight Co. Ltd vs. Emirates Shipping Agences (T) Ltd & Emirates Shipping Line Civil Appeal No. 214 Of 2013, Court of Appeal at Dar es salaam. The learned counsel contended that the trial tribunal was right in rejecting the claims for general damages. 12 After carefully going through the grounds of appeal, I noticed on the second ground of appeal, the Appellant faults the Trial tribunal chairman for failure to give reasons for departing from the assessor's opinion, this is material irregularity in the proceedings that has the effect of vitiating the entire proceedings. The Trial Tribunal records show that the chairman sat with two assessors, however in the midst of the proceedings one of the assessors passed away and under Section 23 (3) of the Land Disputes Court Act the Chairman proceeded with the case with one assessor. On the second ground of appeal the the trial tribunal is faulted in that the chairman failed to assign reasons why he departed from the opinion of the assessor. Section 24 of the Land Disputes Court Act[CAP 216] makes it mandatory for the Chairman of the trial tribunal who sat with assessors to give reasons why he is departing from their opinion if he wishes to do so. Section 24 provides that:- In reaching decisions, the Chairman shaii take into account the opinion ofthe assessors butshaii not be bound by it, except that the Chairman shaiiin thejudgmentgive reasonsfor differing with such opinion. 13 Section 24 requires the chairman to give reasons where he differs from assessors opinion. In the instant case assessor's opinions are reflected in the court proceedings (both typed and handwritten). The assessor's opinions are quoted at page 6 of the typed judgment of the trial tribunal. In her opinion the lay assessor simply stated thus:- '7/7 my opinion Isuggest that the Appiicant is the rightfui owner ofthe suitiand" Prior to quoting the said opinions the learned Chairman had this to say:- "Wakati wa kusikiiiza shauri hiii baraza hiii iiiikuwa na Wajumbe wawiii waiioshiriki kusikiiiza ambao ni bwana Mohammed Poromoka na Bi Mariam Liia, Kwa bahati mbaya Wakati shauri iinaendeiea Mjumbe mmoja, Bwana Mohammed Poromoka aiifariki hivyo basiiiitoiewa amri ya Baraza kuendeiea na Mjumbe Mmoja aiiyebaki chini ya Kifungu Cha 23(3) The Land Disputes Courts Act Cap 216 na Maoni ya Bi Mariam Lib ni Kuwa Mieta Maombindiye Mmiiiki haiaii wa eneo bishaniwa I have carefully considered this ground of appeal (failure to assign reasons for departing from assessor's opinion), the argument for and against it and the law applicable. In the first place let me see what the term opinion 14 mean. Black's Law Dictionary by Bryan A Garner 10*^^ Edition at page 1267 defines opinion as:- '>1 person's thought, beliefor inference abouta factin dispute as opposed to personalknowledge ofthe facts themselves" From the above definition of the term opinion it follows therefore that opinion is a conclusion that certain facts are probably true or likely to prove so. Being a conclusion, it must be reached by reasoning. The assessor who sat with the learned Chairman did not give reason(s) for reaching a conclusion that the Appellant was the rightful owner of the suit land. After analysing evidence of the parties and particularly the sale agreement between the Appellant and 11^^ Respondent(Exhibit AEl), the learned Chairman a conclusion that the Appellant had proved ownership of 50 acres of the land out of 78.31 acres claimed. In my view, the reasons given by the learned Chairman as to why he found that the Appellant had proved ownership of 50 acres constitute reasons for his differing with the unreasoned assessor's opinion. Thus, section 24 of the Land Disputes Court's Act [Cap 216 R.E. 2019) was fully complied with. Secondly and still on the issue of opinion of assessors, I have carefully considered what would be the remedies available If I were to find that the learned chairman did not give reasons for differing with such opinion as 15 complained. I have no doubt that the remedy would be to order the record to be sent back to the trial tribunal for the learned Chairman to give his reasons for differing and bring back the record for this court to proceed to compose its judgment on appeal. As already stated hereinbefore, the assessor's opinion lacked reason and the law does not give room for the assessor to give reasons of his opinion when it is later on discovered by a higher court that he/she did not do so when she was invited to give out her opinion before the Chairman reaches the judgment. In my view, this being the first appellate court with a duty to re-evaluate the evidence adduced, it can review the procedure followed by the trial court and come to its own conclusion. It can also step into the shoes of the trial tribunal and assign reasons for differing with the assessor's opinion. In the case at hand the reason for differing is well covered in the judgment of the trial tribunal. In the District Land and Housing tribunal, the Appellant filed an application against the Respondent in which he prayed for among other orders, a declaratory order that he is the lawful owner of a piece of land located at Mbuyuni Chini area at Ulaya Mbuyuni Village in Kilosa District of Morogoro Region. The basis of his claims, the Appellant alleged, is that he purchased the suit land from one Hassan Omary Nyabwenda. His purchase of 50 16 acres of land from the said Hassan Omary Nyabweda was not disputed by the Respondents. The issue is on 28 acres which he claims that they form part of his land. Land rights are generally acquired through purchase, occupation, inheritance or grant from the government. Acquiring land rights through purchase means buying the land from someone and this is how the Appellant. He produced a sale agreement (Exhibit AEl) which confirmed his claims of buying 50 acres from the 11^^ Respondent. Section 100 (1) of the Evidence Act exclude oral evidence by documentary evidence. It is not clear from the record on how the Appellant acquired the remaining 28 acres. It would appear from the record that 28 acres was mentioned for the first time by the Appellant when he was tendering a valuation report which was admitted in evidence as Exhibit AE2. It is Exhibit AE2 which indicated that the size of the area evaluated was 78. 31 acres. Suffice to say that one can acquire land through valuation report or even a survey of that land. As stated earlier, land can be acquired by way of purchase as the Appellant did for 50 acres, grant by the government or Village council. Inheritance and by occupation. Regarding Respondents'ownership of the remaining portion of the land, it is trite law that he who alleges must prove. The Appellant claimed 17 ownership of 78.31 acres but has been able to prove ownership of 50 acres. He cannot be heard claiming that the Respondents too should prove ownership of the portion of the land he has failed to prove that he owns. That was not the issue before the tribunal. The issue was whether he was the rightful owner of the entire land and not who is the rightful owner of the land he has failed to prove his ownership. On the claim for general damages , I agree with the trial tribunal that there is was nothing on the evidence to attract it to award general damages. General damages also known as non-economic damages are compensation for intangible losses that result from an injury or incident. The Appellant in this case didn't lead evidence to establish those kind of injuries. In summary therefore the appeal is dismissed with costs. Gn CO//, A.R. MRUMA O AC -A > JUDGE N 22. 10. 2024, 18