REHEMA KWAY scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 28231 OF 2024 (Originating From Application No. 202/2018, Kinondoni District Land and Housing Tribunal) REHEMA FREDRICK KWAY (Administratrix of the Estate of the Late Fredrick Kway)........ .............. APPELLANT

VERSUS NICHOLAUS LUHANJO................................................................ 1st RESPONDENT SAADIA JUMA............................................................. 2nd RESPONDENT

JUDGMENT 5th to 20th February, 2025 E.B. LU VAN DA, J The Appellant is appealing against the decision of the Tribunal which dismissed his claim for ownership of a piece of land located at Mbezi Msakuzi Ubungo, on account that there was no proper description of the suit land in the pleading (application). Briefly, the late Fredrick Kway (who passed away after having testified as PW1) purchased a piece of land from the late Juma Ramadhani on 15/01/2003 for a consideration of TZS 700,00 which was paid in three instalements as evidenced by the sale agreement dated 15/01/2003 along its informal invoices for payment dated 27/02/2005 and 8/1/2005, collectively exhibit Pl. The sale was witnessed by Peter Kanuda who testified as PW2 along Sanford Eliusu Kway who testified 1 as PW3. After purchasing, PW1 developed the suit land by planting mijohoro along cultivating cereal crops, constructed a foundation and in 2010 PW1 engaged the surveyor one Manyama Mazura who conducted a survey along erecting beacons on the suit land and established the size of the suit land to be 5133 square meters, as per certified survey plan (registered plan No. 63086) dated 13/04/2020, exhibit P2. After the demise of the Juma Ramadhani in 2013, fewer years ahead to wit in 2018, it is when the Second Respondent trespassed the suit land where she engaged the First Respondent who uprooted crops and demolished a

foundation. In the joint written statement, the Respondents pleaded that a suit farm belong to Juma Ramadhani and disputed it having been sold to PW1. On defence, the Second Respondent, daughter to Juma Ramadhani, asserted that the suit farm was bequeathed to them by the late Juma Ramadhani. The First Respondent who testified as DW2, pleaded to have been wrongly joined in the dispute, for explanation that he was merely engaged by the Second Respondent in April 2018 to clean debris on the suit land where he was paid. In view of the above narration of facts, the Tribunal dismissed the claim by the Appellant. The Appellant is aggrieved by this verdict and staged three grounds of appeal: One, the learned Chairman erred both in law and in fact for failure to properly 2 evaluate the evidence, especially the evidence adduced by the Appellant and his witnesses, hence reached into an erroneous decision; Two, the learned Chairman erred in law and fact by basing his decision by disregarding the other important piece of evidence that vividly proved the Appellant's ownership of the suit property; Three, the learned Chairman erred both in law and fact for failure to hold in favor of the Appellant as the lawful owner of the suit property, while she proved on the balance of probabilities how she acquired ownership of the same. However, I have discovered that DW1 and DW2 adduced evidence

without being sworn. When I invited parties to address me on this subject, Ms. Agness Advocate learned Counsel for Appellant submitted that if they were allowed them to adduce evidence without being sworn or affirmed, is fatal and it can nullify the proceedings. She asked for the Court to decided. The Second Respondent, submitted that to her recollection she remember to have taken and administered oath, and she was wondering as to how it happened. Section 4 of The Oaths and Statutory Declarations Act, Cap 34 R.E. 2002, with marginal note, persons who may be required to make oath or affirmation, provides that, 3 'Subject to any provision to the contrary contained in any written law, an oath shall be made by- (a) any person who may lawfully be examined upon oath or give or be required to give evidence upon oath by or before a court; (b) any person acting as interpreter of questions put to and evidence given by a person being examined by or giving evidence before a court: Provided that where any person who is required to make an oath professes any faith other than the Christian faith or objects to being sworn, stating, as the ground of such objection, either that he has no religious belief or that the making of an oath is contrary to his religious belief, such person shall be permitted to make his solemn affirmation instead of making an oath and such affirmation shall be of the

same effect as if he had made an oath' Again section 3, Cap 34 (supra), provide that, 'Every court shall have the authority, itself or by an officer duly authorised by it in that behalf, to administer an oath or affirmation to any person whom it may lawfully examine upon oath or affirmation' As to what is a court, it is definition is provided for under section 2, Cap 34 (supra), which define court in the context of this Act, as follows, "court" includes every person or body ofpersons having by law or consent of parties authority to receive evidence upon oath 4 or affirmation but does not include a court-martial established under the National Defence Act' Therefore, the District Land and Housing Tribunal being a body mandated to receive evidence in judicial proceedings, cannot escape the duty to administer oath to a witness who appear to testify before it. In that regard, the proceedings of the Tribunal as from the coram dated 5/02/2024 are quashed, and subsequent orders, judgment and award are set aside. The Tribunal is directed to receive afresh the evidence of DW1 and DW2 after being sworn or affirmed as the case may be. The appeal is partly allowed to the extent demonstrated above. No order for