RAMADHANI SANYA

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY

AT DODOMA LAND APPEAL NO. 18825 OF 2024 (Arising from Land Application No. 96 of2023 in the District Land and Housing Tribunal at Dodoma) RAMADHANI SANYA................................................................ APPELLANT

VERSUS BI. ELIZABETH SUBETH..................................................... RESPONDENT

JUDGMENT 11th November & 31st December, 2024 MUSOKWA, J. This is an appeal from the decision of the District Land and Housing Tribunal in Dodoma (DLHT), in Land Application No. 96 of 2023. The parties herein were co-habiting for several years. However, irreconcilable differences resulted in a decree of separation issued by Makang'wa Primary Court in Dodoma (Primary Court), in Matrimonial Cause No. 37 of 2020. The Primary Court also issued orders for the division of jointly acquired properties during the subsistence of the relationship between the parties. Subsequently, the appellant lodged an application before the DLHT, alleging invasion of his unsurveyed pieces of land by the respondent. The suit lands comprise of 2 parcels of land; 1 parcel of land measuring 1.5 acres is located i at Miembeni Kati, B Street, Mvumi Mission. Another piece of land measuring 1.0 acre is located at Miembeni Kati, B Street, Mvumi Mission, (hereinafter referred as the suit lands). Before the DLHT, the appellant alleged that the suit lands did not form part of the jointly acquired properties between the parties and prayed for orders to be declared the rightful owner of the suit lands. The matter before the DLHT proceeded ex-parte due to non- appearance of the respondent. The decision that was issued by the DLHT was not in favour of the appellant, resulting in the instant appeal which contains the following grounds of appeal reproduced hereinafter: - 1. The honourable tribunal chairman erred in law and in fact for failure to analyze evidence adduced before it, which resulted into a wrong judgment.

2. The honourable tribunal chairman erred in law and in fact in not (sic) holding that the respondent was given the disputed properties by the Makang'wa Primary Court in 2020 vide TaIaka No. 37 of 2022 as per Exhibit Pl tendered in court. By the orders of this court, the substituted service was duly effected, calling the respondent to appear before this court. However, the respondent failed to appear before this court despite the service. As a result, the matter proceeded ex-parte against the respondent for the aforementioned reason. 2 On the date scheduled for the hearing of this appeal, Mr. Mluge Karoli, learned advocate appeared for the appellant. Mr. Kalori submitted that the respondent invaded the suit lands immediately after the decision of the Primary Court was issued. The evidence adduced by the appellant at the DLHT included Exhibit Pl, which is the judgment of the Primary Court. The appellant's counsel asserted that the aforementioned judgment included orders as to the division of the jointly acquired properties. It was further submitted by the appellant that the orders of the Primary Court were solely confined to division of jointly acquired livestock, and did not include other immovable properties. Mr. Kalori argued further that the suit lands did not form part of the orders of the Primary Court. The reason is that the said lands were the personal property of the

appellant. In adducing evidence at the DLHT, the appellant clearly testified as to how he acquired the suit lands as indicated at page 2 of the judgment of the DLHT. Submitting further, the appellant's counsel argued that, the DLHT erred to hold that the Primary Court, conferred the suit lands upon the respondent. Mr. Kalori reiterated that in the matter before the Primary Court, the suit lands were not enlisted among the joint properties. Therefore, the suit lands did not form part of the joint properties for determination by the Primary 3 Court. In view of the foregoing, the appellant prayed for the orders to quash and set aside the judgment of the DLHT, and for the appellant to be declared the lawful owner of the suit lands. The sole issue for determination by this court is whether or not the appeal is meritorious. Thereafter, necessary orders will be granted accordingly. Upon an ex parte hearing of the matter, the DLHT held at page 2 and 4 of its judgment as follows: - "Upongoing through the evidence on record... the applicant and the respondent were wife and husband. However, they were divorced by Makang 'wa Primary Court in 2020 and per the said decision, it is dear that the said properties (suit lands in question) were given to the respondent herein...! have heard the opinion of the two assessors, I totally agree with what they have opined as the applicant has not proved

his case since the said land have been already given to the respondent via matrimonial proceedings No. 37 of2020" [emphasis added] In the circumstances of the holding above, the determination of this appeal rests on the contents of Exhibit Pl. Indeed, it is not disputed that the parties herein were separated by the decree issued by the Primary Court, in Matrimonial Cause No. 37 of 2020. The Primary Court also issued orders for 4 the division of jointly acquired properties. For the purpose of transparency at page 8 of Exhibit Pl, the Primary Court held as follows: - "lakini pia ma/i waiizochuma pamoja ambazo ni ng'ombe nane (8) na kondoo mbi/i (2) wagawane, na nyumba moja ya bad akae nayo mdaiwa na maii nyingine zote zilizotajwa kwenye shauri hili ni maii za mdaiwa (Elizabeth Subeth) kwa kuwa hakuna ushahidi kamiii wa ma/ihizo kuwa chumo lao la pamoja"[emphasis added] The holding issued by the Primary Court that "maii nyingine zote zilizotajwa kwenye shauri hili, ni maii za mdaiwa" was the basis of the decision of the DLHT. However, at page 5 of Exhibit Pl, the respondent declared properties for the purpose of division. According to the respondent, these properties were largely acquired by her and her former husband namely one MAWALA, deceased. For further details, the respondent testified as follows: - "Ameieieza mahakama hii kuwa anazo maii aiizochuma pamoja na mumewe wa awaii

aitwaye MAWALA, zikiwa ni nyumba moja(l), ng'ombe saba (7) pamoja na mtoto wake huyo mmoja lakini pia ameendelea kusisidza mbeie ya mahakama hii kuwa anaomba kusaidiwa kwakuwa yeye maii zote hizo alizonazo ni za kwake na wala sio za huyu mchumba wake kwa kuwa hakuna maii yoyote He wa/ichuma pamoja na huyu SMl...akijibu hoja za upande wa mahakama, amekiri ya kuwa kwa sasa mail alizonazo ni hizo ng'ombe nane (8), mbuzi(1/ nyumba moja (1), lakini 5 ma/i zote hizi huyu SMI, a/imkuta nazo na wa/a hakuna mchango wake kwenye ma/ihizo"[emphasis added] Truly, the properties declared by the respondent as quoted above, do not include "mashamba" and "viwanja". On the other hand, it is the appellant (SMI) who declared to have acquired "mashamba", and "viwanja" among other properties. At page 2 of the Exhibit Pl, the appellant is recorded to have testified that: - "akiende/ea kutoa ushahidi wake mbeie ya mahakama hii amekiri ya kuwa mkewe huyu kwa sasa anatumia ma/i zao peke yake ambazo waiizipata akiwa pamoja na ma/i hizo zikiwa ni ngombe, mbuzi,mashamba, viwanja pamoja na nyumba " [emphasis added] Having considered the evidence, especially Exhibit Pl, it is clear that "mashamba" and "viwanja "wexo. not part of the orders for the division of properties in the matrimonial proceedings No. 37 of 2020. In addition, the respondent did not claim to have "mashamba", and "viwanja" as their

joint properties or even as her personal properties. Consequently, the DLHT was wrong to hold that the suit lands were given to the respondent by the Primary Court through matrimonial proceedings No. 37 of 2020. Therefore, the judgement and decree only of the DLHT are hereby quashed and set aside. 6 Among other orders, the appellant pressed for an order for him to be declared the lawful owner of the suit lands. Nevertheless, considering the nature of this dispute which originated from a matrimonial dispute; the fact that the matter proceeded ex parte before the DLHT, and the inherent lacuna in the evidence; I am inclined to order reception of additional evidence by the DLHT. The additional evidence will include summoning members of the Village Land Council, village leaders or any potential witnesses who are capable to explain on the ownership of the suit lands. It is my opinion that additional evidence is required for a proper decision of a case before the DLHT. The powers of this court to order reception of additional evidence are provided under section 76 (1) (d) and Order XXXIX rules 27, 28 and 29 of the Civil Procedure Code, Cap. 33 R.E. 2019 (CPC). In particular, section 76(1) (d) of the CPC states that: - "76 (1) Subject to such conditions and limitations as may be prescribed, the High Court in the exercise of its appellate jurisdiction shall have power to- (a) N/A; (b)

N/A; (c) N/A; or (d) take additional evidence or to require such evidence to be taken." [emphasis added] 7 Moreover, in the case of Milca Kalondu Mrema vs Felix Christopher Mrema, Civil Appeal No. 201 of 2021 (unreported), the Court of Appeal of Tanzania (CAT), while quoting Sarkar Law of Evidence, 16th Edition 2007, held as follows: - "The appellate court...may allow additional evidence to be given when it is of the opinion that it is required for a proper decision of a case. The legitimate occasion for admission of additional evidence is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent"[emphasis added] Ultimately, I remit the file to the DLHT before another chairperson and new set of assessors for immediate reception of additional evidence. I further order that after receiving additional evidence, the DLHT should compose and deliver a judgment. Considering the nature of relationship between the parties, I make no order as to costs. It is so ordered. Right of appeal fully explained. DATED at DODOMA this 31st day of December, 2024. Judgment delivered in the presence of the appellant and his advocate Mr. Karoli Fabian; and in the absence of the respondent. 9