RAPHAEL PAULO CHAMBI VS SALUM SAID MAGANGA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY ATTABORA LAND APPEAL NO. 5257 OF 2024 (Arising from the District Land and Housing Tribunal for Tabora in Land Application No. 53 of2022) RAPHAEL PAULO CHAMBI....................................................... APPELLANT VERSUS SALUM SAID MAGANGA (Administrator of the estate of the late Rashid Mfaume Chatta)................................ RESPONDENT JUDGMENT Date of Last Order: 12.11.2024 Date ofJudgment: 05.02.2025 KADILU, J, In 2022 the respondent filed a land application in the District Land and Housing Tribunal for Tabora claiming the heirs of the late Rashid Mfaume Chatta to be declared as the true owners of 20 acres of land located at Misha Kati Village, Misha ward within Tabora municipality. He alleged that on 18th May 2022, the appellant invaded and developed the suit land and started to cut down trees and destroy the boundaries. The respondent reported the matter to the village authorities and ward tribunal for reconciliation but the appellant denied attending the Misha Ward Tribunal. The respondent instituted the case in the DLHT praying for the heirs of the late Rashid Mfaume Chatta to be declared the true owners of the suit land and the costs of the suit. After hearing the case, the trial tribunal decided in favour of the respondent because the appellant was not the owner of the land as he claimed. The decision aggrieved the appellant hence, he filed the appeal in this court on the following grounds: i 1. That, the trial tribunal erred in law and fact for holding in favour of the respondent against the weight of evidence. 2. That, the decision and proceedings of the trial tribunal are nullity for the assessors' opinions were not read in the presence of the parties before the composition of the judgment. 3. The learned trial Chairman erred in law and fact when he delivered the decision without considering the appellant's evidence. 4. The application improperly proceeded in the District Land and Housing Tribunal without a proper description of the land in dispute. 5. That, the proceedings of the trial tribunal are invalid for lack of a properly tendered certificate evidencing failure of conciliation by the Ward Tribunal. Based on these grounds, the appellant prayed for this court to allow the appeal with costs and to declare him the lawful owner of the disputed land. At the hearing of this appeal, the parties preferred to be heard by way of written submissions. The appellant was represented by Mr. Kelvin Kayaga, the learned Advocate. On the other hand, the respondent was represented by Ms. Flavia Francis, also the learned Counsel. Mr. Kayaga submitted that the respondent's application was fatally defective due to the failure to describe the land in dispute properly. He elaborated that the respondent indicated in the application that the disputed land is 20 hectares but, in his testimony, he informed the tribunal that it was 27 acres. The Advocate argued that since the suit land was unsurveyed, its proper description was necessary to identify it to make court orders executable. He cited the case of Registered Trustees of Moravian Church Western Tanzania v. Msyanza Mate Mongo, Land Appeal No. 2 40 of 2023, the High Court at Tabora in which this court held that unsurveyed land must be described by disclosing its size, boundaries, neighbours, and any other permanent features possible to locate it. Mr. Kayaga concluded that if the land is not well described, the proceedings resulting from such an application become a nullity. Concerning the second and third grounds of appeal, Mr. Kayaga submitted that a certificate from the ward tribunal showing that conciliation was conducted was not tendered, which was procedurally improper. He supported his argument with the case of Patrick William Magubo v. Lilian Peter Kitaii, Civil Appeal No. 41 of 2019, where the certificate from the Marriage Conciliation Board was not tendered before the trial court. The Court of Appeal held that the document was required to be tendered and admitted in evidence as annexures are not evidence for the court of law to act and rely upon. In response, Ms. Flavia narrated that when the matter was before the Tribunal at the hearing of the application, the appellant did not raise any objection concerning the proper description of the land in dispute hence, the ground raised is immaterial. She added that the rationale behind describing a property is to distinguish it from other properties and assist the court in issuing an executable decree. Since in the instant case the land in dispute was not registered, it could be described by its location, size, boundaries, and neighbours. She cited the case of Fereji Said Fereji v. Jaiuma General Supplies Ltd & Another, Land Case No. 86 of 2020, High Court Land Division. 3 According to Ms. Flavia, the land in dispute was properly identified by the evidence adduced. Concerning the second ground of appeal, the learned Counsel stated that a certificate from the ward tribunal was tendered collectively as Exhibit Pl though it was not cleared for admission. She argued that since the certificate was attached to the pleadings, the law was complied with, and that was sufficient evidence that the dispute was referred for mediation but the ward tribunal failed to mediate parties. Regarding the complaint that the tribunal's decision was erroneous for not considering the weight of evidence, Ms. Flavia cited the case of Hemedi Saidi v. Mohamed Mbilu, [1983] TLR 113, where the court stated that in every matter, it is the party whose evidence is heavier who must win. She elaborated that the evidence adduced by the respondent was heavier compared to that of the appellant so, the tribunal was justified in deciding the case in favour of the respondent. By way of rejoinder, Mr. Kayaga argued that the description of the suit land during the testimony was not supposed to be acted upon by the tribunal because pleadings serve a different purpose from the role played by evidence and vice versa is true. He explained that evidence on an unpleaded matter serves no purpose in the pleadings, and even if a matter is pleaded, the court will not rely on pleadings to make a decision unless evidence is brought in proof of the pleaded facts. The learned Advocate concluded that although pleadings and evidence complement each other, evidence is not a substitute for pleadings and pleadings are not evidence. About a certificate of the ward tribunal, Mr. Kayaga rejoined that its attachment to the pleadings was proper but the failure to tender it affected 4 its reliance, and its absence from the records vitiated the proceedings. He opined that since the certificate was a document establishing the jurisdiction of the DLHT, it was supposed to be part of the court's records by tendering it in evidence. To him, the trial tribunal wrongly proceeded to entertain the dispute in the absence of a valid certificate from the ward tribunal, and it rendered the whole proceedings a nullity. I have considered the records, grounds of appeal, and submissions by Advocates for the parties. The question for determination is whether the appeal has merit or not. Starting with the question of certificate, the record is very clear that it was not tendered during PWl's testimony. Though its copy was attached to the application and the original is in the case file, it is unknown how it reached into the file. A perusal of the proceedings reveals that no witness tendered it. Therefore, without much ado, I find this ground of appeal meritorious. Section 13 of the Land Disputes Courts Act [Cap. 216 R.E. 2019] as amended by the Written Laws (Misc. Amendments) (No. 3), Act of 2021 provides that: "The District Land and Housing Tribunal shall not hear any proceeding affecting the title to or any interest in land unless the Ward Tribunal has certified that it has failed to settle the matter amicably." The quoted provision infers that the parties were not only supposed to refer the matter to the Ward Tribunal for conciliation but also the Tribunal was obliged to issue a certificate after the conciliation had failed. Where the ward tribunal's certificate was not produced in evidence, it is uncertain how the trial Chairman knew the ward tribunal failed to settle the matter amicably 5 to confer jurisdiction to him to proceed to resolve the matter. To this end, the court finds that there was non-compliance with the procedural law in the conduct of this case by the trial tribunal hence, the proceedings remain vitiated by that factor. I do not need to cite authorities indicating that the decision reached by any court without having jurisdiction is a nullity. As for the description of the suit property, the law is settled that parties are bound by their pleadings and that evidence produced by any of the parties that does not support the pleaded facts or is at variance with the pleaded facts must be ignored. In the instant case, the respondent indicated in his application that the suit land measured 20 hectares. When he was testifying, he told the tribunal that the disputed land was 27 acres. For this reason, the evidence concerning the description of the suit land varies from the facts pleaded in the application hence, it deserved no weight. In Daniel Dagala Kanuda (as an administrator of the estate of the late Mbalo Lusha Mbulida) v. Masaka Ibeho & 4 Others, Land Appeal No. 26 of 2015, this court held that the requirement to describe the suit property is not a cosmetic one. Among other purposes, the description is meant to allow the court to pass final and definite orders. Further, in the case of Abutwalib A. Shoko v. John Long & Albin Tarimo, Land Case No. 20 of 2017, the court held that: "... unless the plaintiffindicates the description of the property claimed by him either using boundaries or by of title number under the Land Registration Act, it would be difficult for the court to find whether the plaintiff has title to the property claimed and whether any encroachment or dispossession has been made by the defendant. Thus, the party must give a description sufficient to identify the property in dispute so that if a decree is passed about it, it shall not be unworkable..." 6 It is undisputed that the instant appeal involves immovable property which is unsurveyed land hence, it could not be described by Plot or Title numbers. Nonetheless, it could be sufficiently described if all the information necessary to locate it was provided. This could be done by stating in the application its precise geographical location, size, boundaries, neighbours, and any other permanent features necessary to locate it. As already shown, the size was inconsistently described as 20 acres and, in some places, 27 hectares. The boundaries were not also indicated in the application. Thus, the tribunal's decree is unworkable as it declared the respondent the rightful owner of the disputed land, but its size and boundaries are uncertain. That is a serious illegality which vitiated the proceedings of the trial tribunal. Coupled with the fact that the ward tribunal's certificate was not properly admitted, this court finds that the proceedings of the trial tribunal were tainted with irregularities. Consequently, I nullify the proceedings and set aside the judgment and decree of the District Land and Housing Tribunal for Tabora in Land Application No. 53 of 2022. I remit the case file to the tribunal for a retrial before a different Chairman if the parties are still interested in pursuing the matter further. Given the outcome of the appeal, each party shall bear its costs. Order accordingly. DILU, M. J. JUDGE 05/02/2025 7 Judgment delivered in chamber on the 5th day of February, 2025 in the presence of Mr. Kelvin Kayaga, Advocate for the appellant, and Mr. Salum Saidi Maganga, the respondent. DIL M. J. JUDGE 05/02/2025 8