registered trustees of jamat ansar sunna vs yusuf migomba 2023 tzhclandd 17276 23 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL CASE NO. 340 OF 2023 (Arising from the Decision of the District Land and Housing Tribunal ofIlala in Land Application No. 23 of2020) REGISTERED TRUSTEES OF JAMATI ANSAR SUNNA... APPELLANT VERSUS YUSUF MIGOMBA.... ............................. RESPONDENT JUDGMENT 7th November 2023 & 23d November, 2023 L. HEMED, J. The disputed property is a piece of land of square meter 1000, located at Masjid Istiqama, Chama area, Tabata Segerea Ward, Ilala District, Dar es Salaam Region. At the District Land and Housing Tribunal for Ilala (DLHT), the REGISTERED TRUSTEES OF JAMATI ANSAR SUNNA (the Appellant herein) instituted Application No.23 of 2020 against YUSUF MIGOMBA (the Respondent herein) claiming to be the owner of the suit land given to it by the late ALLY MIGOMBA through Wakf in 1990. i It was asserted that in 1998 a Mosque, a house of Imam and Madrassa were built and started to be used by the followers of Islamic religion especially residents of the area. The prayers before the trial Tribunal were such that the respondent herein be declared trespasser and the appellants be declared owners of the disputed land. The Respondent disputed all the claims and stated to be the owner of the disputed property. After having heard the testimonies from both parties, the trial Tribunal found that the Appellant herein had failed to prove its case. It ended up dismissing the suit hence this Appeal on the following grounds:- " 1. That the honorable chairman of the District land and Housing Tribunal erred in law in making the decision without deciding the issue of the competence of the suit raised by the Respondent. 2. That the honorable chairman of the District land and Housing Tribunal erred in law in dismissing the suit filed in contravention of regulation 3(1)(2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations GN No. 174 of 2002(sic) and O. VI R 15(1) of the Civil Procedure Code Cap 33 RE 2019. (sic) 2 3. That the honorable chairman of the District land and Housing Tribunal erred in /aw in making the impugned decision relying on section 64 of the Land Act Cap 113 RE 2019 without considering the provisions of section 140 and 141 of the Probate and Administration of Estate Act Cap 352 RE 2019. 4. That the honorable chairman of the District land and Housing Tribunal erred in law in taking over the matter from her predecessor chairman without recording reasons. 5. That the honorable chairman of the District land and Housing Tribunal erred in law in conduct of the matter by allowing questions from wise assessors prior to re-examination of witnesses by the advocates. 6. That the Honourable chairman of the District land and Housing(sic) erred in law and fact in making the decision that the Appellant failed to prove the case." The matter was argued by way of written submissions. The appellants enjoyed the legal service of Ms. Fauzia Kajoki, advocate while the Respondent acted in person. All submissions were filed promptly as directed by the court. \ 3 In the 1st ground of appeal, the Appellant is faulting the trial Tribunal for making the decision without deciding the issue of competence of the suit raised by the respondent. Ms. Kajoki, argued that in the final submissions filed by the counsel for the Respondent, a point of law on competence of the suit was raised as PW4 one HUSSEIN HAROUN who instituted the suit had no focus standi as he was not member of the appellant board of trustees. She fortified her arguments with the decision in land mark case of Lujuna Shubi Balonzi vs Registered Trustees of CCM,(1996) T.L.R 203. She stated further that where an issue is raised in court proceedings, the court is duty bound to decide that issue. In her opinion, failure to do so renders the whole judgment null and void. She relied on the decision in Kukai Properties Development Ltd vs Maloo & Others (1990-1994)EA 2081, where the court is obliged to decide on each and every issue framed. In reply thereto, the respondent stated that the point of focus stand/ was raised as a reminder to the court over some sort of misrepresentation done by the Appellant and its witnesses. He argued that in the course of hearing PW-4 prayed to tender exhibit P-1 which states that PW-4 was the Representative of the Appellant. The Respondent was of the view that the 4 point of locus standi was not amongst the issues which were framed to resolve the dispute. I must state at the outset that I am at one with the learned counsel for the Appellant that it is trite law as of now that courts are obliged to decide on each and every issue framed. This was clearly stated in Kukai Properties Development Ltd vs Maloo & others (supra), thus:- 'M judge is obliged to decide on each and every issue framed. Failure to do so constituted a serious breach ofprocedure." This prompted me to go through the record of the trial Tribunal to find out if the issue of locus standi was raised. In fact, I only found two issues which were framed for determination of the said suit before the trial Tribunal. The said issues were as follows: - • Je mdai ni mmiiki haiaii wa eneo bishaniwa? • Je wadaawa wanastahi/i nafuu gani kisheria?" Which can literally be translated as follows: - • Whether the Applicant is the lawful owner of the disputed land? 5 • To what reliefs are the parties entitle? From the above quoted issues, it is obvious that the issue of locus standi was not among the issues which the trial Chairperson was obliged to decide. In the course of perusing the record of the trial Tribunal, I realized that the point locus standi was raised by the Respondent in his final submissions while making analysis of the issue on ownership of the suit land. The point of locus standi was raised as a way of discrediting evidence adduced by PW-4. The way it was raised it could not be determined as preliminary objection as it was aimed to challenge the value of evidence adduced by PW-4. From the foregoing, I find no merits in the 1st ground of appeal. The ground is overruled. The 2nd ground of appeal was such that the trial tribunal erred in dismissing the suit filed in contravention of regulation 3(1)(2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations GN No. 174 of 2003 and Order VI Rule 15(1) of the Civil Procedure Code, [Cap 33 RE 2019]. It was the Appellants' submissions that the regulations, requires the Applicant to fill in a prescribed form No.l when preferring a 6 suit to the DLHT. It was argued that Form No.l requires either Applicant or advocate or representative to verify the contents of the said pleadings. The counsel for the appellants insisted that Order VI Rule 15(1) of the Civil Procedure Code, pleadings have to be verified by a party or one of the parties. In this matter PW-4, one Hussein Haroun was the one who verified the contents. She was of the view that, Hussein Haroun was neither a party no representative of the Appellant thus he had no capacity to verify. She thus prayed the court to quash the decision and proceedings of the trial Tribunal. In reply thereto, the respondent contended that one Hussein Haroun was the representative of JASUTA, the appellants in the instant matter. In this 2nd ground of Appeal the Appellant is faulting its own pleadings which was filed at the trial Tribunal on the ground that it was signed by the person who was not the representative of the Appellants. I have noted from the pleadings filed by the Appellant and found that it was signed by the advocate of the Appellant and verified by one Hussein Haroun, the Chairman of the Appellants. In my firm view, the chairman of the Board of Trustees is also among the Trustees and thus has capacity to sign pleadings. C; 7 It is also de facto that the appellant is not a natural person and therefore its action are executed through trustees. In the matter at hand, the mere fact that the person who verified the contents of the Application was the Trustee, and chairman of the Registered Trustees of JAMAT ANSAAR SUNNA, then the pleadings filed by the Appellants at the DLHT was valid. I have also noted from the proceedings before the trial Tribunal, the Appellant did not raise the point of competence of its pleadings. It only sent witnesses to testify for its case. Above all, I find the appellant's pleadings before the trial Tribunal were proper before it as one of the Trustees and the advocate of the appellants executed it. It was the duty of the Appellant to notify the trial Tribunal during the trial and withdraw the Application. The fact that the Appellant opted to prosecute it to the end, by implication, it blessed the verification executed by PW4. The appellant cannot turn around at this stage to complain against its own fault. Having lost the case before the Tribunal, the appellants is looking to benefit through its own 'wrongs'. This is not allowed, for a party in a suit cannot be allowed to benefit from own wrong. I find no merits in the 2nd ground of appeal. px 8 As regard the 3rd ground of appeal, it was argued that the DLHT dismissed the suit on the ground that the Appellant failed to prove Wakf for want of documentary evidence under section 64 of the Land Act, [Cap 113 RE 2019]. It was the view of the counsel for the Appellants that the Land Act applies only in surveyed land and not in unsurveyed pieces of land like the one in dispute. She was of further opinion that under the laws governing wakf in Tanzania, that is Islamic law and statutory law even an oral wakf suffice to grant ownership of property. In response thereto, the Respondent contended there was no proof of wakf. In his view there was no receive of the said wakf as well as credible witnesses to prove the issuance of the said Wakf. I have noted the argument of the counsel for the Appellant that the Land Act, (supra) applies only in surveyed land. According to her, if the land is unsurveyed then the Land Act cannot apply. In principle, Land Act applies to all general land in Tanzania. Section 2 of the Land Act (supra) defines the word "general land" to mean- "...all public land which is not reserved land or village land includes un occupied or unused village land..." C a 9 From the above definition, the Land Act applies in land whether surveyed or unsurveyed provided it falls within the category of general land. In 1992, the government of United Republic of Tanzania declared all land in Dar es Salaam planned area. This was done vide the Town and Country Planning (Planning Areas) Order of 1992, GN. No 231 of 1993. The effect of declaring all land planned area automatically became part of the general land and thus subjected to the administration of the Land Act. The suit piece of land is situated at Chama Area, Tabata Segerea Ward within Ilala District in Dar es Salaam, therefore, it is part of the general land under which the Land Act applies. In the context of this case where the appellant claims to have acquired the suit premises by way of wakf, I think, the Land Act would not be an appropriate legislation in resolving the dispute. In my firm view, only the law governing Trust, Wills and Wakf would be relevant. In the instant case, is the Judicature and Application of Laws Act, Cap.453, the Probate and Administration of Estates Act, [Cap 352 RE 2019] and the Islamic Law. I am in agreement with the learned counsel for the Appellant that under Islamic law oral wakf suffice to transfer ownership of property. However, like in oral Islamic wills, oral wakf must be witnessed. I have io gone through evidence adduced by all witnesses of the Appellant no one among them witnessed the wakf being made by the late father of the Respondent transferring the property to the Appellant. It is my firm view that, in the circumstance of this case, it was necessary to call persons who witnessed the alleged oral Wakf to testify before the Tribunal. Having failed to call such important witnesses, the trial Tribunal was justified to find against the Appellant. I am holding so based on the principle made by this court in Hemed Said vs. Mohamedi Mbilu (1984) T.L.R 113, that- "where, for undisclosed reasons, a party fails to call a material witness on his side, the court is entitled to draw an C inference that if the witnesses were called they would have given evidence contrary to the party's interests." The fact that the Appellant failed to parade witnesses who were present when the alleged Wakf was made, then it was a total failure to prove the claims of ownership on the part of the Appellant. Therefore, I find no merits in the 3rd ground of appeal. The 4th Ground of appeal was on the failure of the trial Chairperson to record the reasons for the transfer of file. It was argued that the matter ii commenced before Hon. Rugalabamu, Chairman who partly heard it. Then it was transferred to Hon. Mgulambwa who heard it to its finality. The counsel for the Appellant insisted that by virtue of Order XVIII Rule 10(1) of the Civil Procedure Code, [Cap.33 R.E 2019] the successor Chairperson ought to have advanced reasons for taking over. She put reliance to the decision of the Court of Appeal of Tanzania in Mantrac Tanzania Limited vs Raymond Costa, Civil Appeal No. 15 of 2022. She asked the court to quash the proceedings and decision of the trial Tribunal for being a nullity. Replying thereto, the Respondent stated that it was orally addressed by Hon. Mgulambwa that Hon. Rugalabamu was care taking his sick relative and that when he resume back he would be at his new working station at Kinondoni. He added that the appellant did not dispute and they were ready to proceed before Hon. Mgulambwa. In the first place I do agree with the counsel for the Appellant that when a case file is transferred to another judicial officer, the successor must record the reasons for the transfer. The recorded reasons must be made known to the parties. It is without doubts that the instant matter commenced for hearing before Hon. Rugalabamu, later on Hon. 12 Mgulambwa succeeded to it and determined to its end. I have gone through the trial Tribunal's record to find out if reasons for the shift of the file to the successor Chairperson were recorded. I have noted that Hon. Mgulambwa took over the matter on 30th August 2022 and recorded the reasons for taking over. The proceeding of 30th August 2022, readth as follows:- "30/8/22 Akidi- M.Mgulambwa Wajumbe - Mwaka & Jokha Mdai - Daudi Mzeluekuo Mdaiwa- Yupo, Mr. Rashid Karani - Kachenje Baraza: Tumekuia kusikiUza shauri, Mh.Ruqarabamu ambae aiikuwa anasikUiza shauri hili amehamishwa kituo na kuhamia Baraza ia Ardhi na Nvumba(W) Kinondoni. Hiwo basi Jaiada iinaendeiea mbeie vanuu. M.Mgulambwa. Signed M. Mgulambwa Chairperson 30/8/22 ..." (Emphasis Added) 13 "In cases tried with assessors, the assessors may out any questions to the witness, through or by leave of the court, which the court itself might put and which it considers proper. "(Emphasis added) The above provision only permits assessors by leave of the court to put question to the witness. As to 'when' and 'how' such question should be put, is left to the discretion of the court, depending on the circumstance of the case. I am aware that questions put by assessors and the court are for clarification purposes and thus they cannot be subjected to either cross- examination or re-examination. It is thus advisable that such questions be asked after re-examination. Nevertheless, questions put by assessors prior to cross-examination or re-examination do not have the effect of vitiating the proceedings as such question cannot prejudice anyone's case. In other words, a party to a case cannot claim to have been affected by assessors being permitted to put questions to his/her witness prior to cross examination or re-examination. In the present case, the appellant has not said how she was affected by the decision of the trial Chairperson to permit assessors to put questions to witness prior to re-examination. In my view, allowing assessors to put question to witnesses prior to re-examination was 15 From the above, I find the reason recorded by the successor chairperson for her to take over the matter was enough. According to the submissions made by the Respondent, the said reason of transfer of the file to the successor chairperson was communicated to the parties. This being the case, I find no merits in the 4th ground of appeal. The 5th ground of appeal was on the DLHT allowing assessors to put question to witnesses prior to re-examination. It was submitted by the counsel for the appellant that the record of the trial Tribunal reveal that the trial chairperson allowed the assessors to question witnesses prior to re­ examination. She relied on the decision of the Court of Appeal in Bahati Ndunguru vs Republic, Criminal Appeal No.361 of 2018. The learned counsel was of the view that the errors vitiate the entire proceedings. The submissions of the Respondent was short that assessors did put questions to witness after re-examination. The law governing how to question witness is the Evidence Act, [Cap.6 RE 2019], According to section 51 of the Land Disputes Courts Act, [Cap 216 RE 2019], the Evidence Act (supra), does not apply strictly in the District Land and Housing Tribunals. I have also noted that section 177 of the Evidence Act (supra) provides thus: - 14 to the parties' advantage as they had the opportunity to make such witness clarify any matter that became unclear when responding to questions of the assessors. The appellant also relied on the case of Bahati Ndunguru (supra), the said case is Criminal Case, it is not relevant to the Civil case like the one at hand. I find no merits in the 5th ground of appeal. The 6th ground of appeal was that, the DLHT erred in law to declare that the appellant that had failed to prove the case. It was argued that the Appellant has been in use of the suit land since 1990. She relied on the doctrine of adverse possession that 12 years had elapsed and thus it was not proper for the DLHT to dismiss the Appellants' claims. On his party, the respondent replied that by merely being a tenant of a certain place for so long does not make a person owner of the said place. I have perused the pleadings as were filed before the trial Tribunal to find out if at all the Appellant had pleaded the fact of adverse possession. I could not find the alleged fact in the Application filed in the District Land and Housing Tribunal for Ilala. It is settled law that, parties are bound by their pleadings, that is, to prove only what is pleaded. This principle was well articulated by the Court of Appeal of Tanzania in Baclays Bank(T) Appeal No.357 of 2019 that: - 16 'We fee/ compelled, at this point, to restate the time-honored principle of law that parties are bound by their own pleadings and that any evidence produced by any of the parties which does not support the pleaded facts or is at the variance with the pleaded facts must be ignored..." I have also gone through evidence on record, but I could not find anything being adduced in respect of issues related to adverse possession of the suit landed property. The Appellant's claim of ownership of the suit property was based on oral Wakf which could not be proved. It is my firm view that since the appellant did not plead and prove the allegation of adverse possession, then, the same cannot be raised at this stage of appeal. The 6th ground of appeal has not merits as well. In the final analysis, all 6 grounds of appeal have failed. In that regard the entire appeal has no merits. In the upshot, I proceed to dismiss the entire appeal. Considering the nature of the parties to this matter, I order each part to bear its own costs. Order accordingly.