rejoice ndalima vs the board of trustee pentecostal holiness mission 2022 tzhclandd 189 31 march 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC.LAND APPEAL No. 187 OF 2021 (Appeal from the decision of the District Land and Housing Tribunal for KInondonI at Mwananyamaia In Land Application No. 17 of 2016) REJOICE NDALIMA.. ..APPELLANT VERSUS THE BOARD OF TRUSREES OF PENTECOSTAL HOLINESS MISSION RESPONDENT JUDGMENT Masoud,3. Being aggrieved by the decision of the District Land and Housing Tribunai for Kinondoni at Mwananyamaia (the trial Tribunal) in Land Appiication No. 17 of 2016 deiivered on 19/07/2021, the appeiiant appeaied to this court against the whoie judgment and decree on the foiiowing reasons; 1. That the learned chairperson erred in law and In facts by proceeding with the hearing of the case In the absence of two assessors ofthe Tribunal. 2. That, the learned chairperson erred in iaw and in facts for delivering a Judgment in favor ofthe respondent while the case was notproved on the balance ofprobabilities. 3. That, the trial Tribunal's decision is a nuiiity for not containing assessors'opinion. Notably, on the 24/11/201, Mr. Bitaho, learned counsel for the appellant prayed for the leave of this court to amend the memorandum of appeal in order to add a fourth ground of appeal, which read as follows: 4. The learned chairperson erred in iaw and fact by ignoring the evidence ofstructures fixed thereto the suit premises sodai and religious services conducted in the disputed property which attracts peace and stability in the community and in the country in general. Mr. Bitaho also prayed for the leave of the court to amend the first ground of appeal of the Memorandum of appeal to read as follows. 1. "That the chairman erred in law and in fact to reach judgment without the quorum ofassessors" The court granted the prayers. Thus, with the court's leave, the appellant's amended memorandum of appeal contained four grounds of appeal. On account of the above reasons, the appellant herein prays for this court to allow the appeal, declare the appellant as a rightful owner of the disputed land, quash and set aside the judgment and decree of the trial Tribunal In Land Application No.l7 of 2016, grant an order for costs of this Appeal In her favour and any other relief (s) the court deems fit and just to grant. Hearing of this appeal proceeded by way of filing written submissions. Both parties adhered to the schedule for filing the written submissions. While the appellant was represented by Mr. BItaho Marco, Advocate, as above shown, the respondent was represented by Mr. Robert Charles Oteyo, Advocate. Submitting in support of the appeal Mr. Bitaho, decided to consolidate the 1'^ and the Z"'' grounds of appeal. He argued that when the matter was before the trial Tribunal, the appellant was not given full opportunity to be heard as required by the law. Instead of the Chairman sitting with two assessors, there was only one assessor contrary to the requirement of the law, particularly the provision of Section 23(2) of the Land Dispute Courts Act Cap 216 R.E 2019 (the Act). Mr Bitaho further submitted that, despite the fact that it is only one assessor who gave his opinion, the Chairman without any reason, when composing judgment, did not take into consideration the said assessor's opinion. To support his argument, he cited the provision of Section 24 of the Act (supra. He also cited the case of Bhoke Marwa vs Yona Marwa Land Appeal No. 41 of (2020) 1:13 July 2020 HC at Musoma (unreported), and Benedict Lubava (as an administrator of the Estate of the Late Mohamed Lubava vs John Mwigune and 4 Others Misc. Land Appeal No.27 of 2019 (unreported). In support of his argument, he relied on the case of Bhoke Marwa (supra), in which the Court held that; " In view of the settled position of the iaw where the triai has to be conducted with the aid of the assessors...they must actively and effectively participate in the proceedings so as to make meaningful their roie of giving his opinion before thejudgment is composed'' It was further shown that the court in the case of Benedict Lubava (supra) held that; DLHT failed to actively involve the assessors in the determination of the appeal. It failed to cause the written opinion of the assessors to be read in the presence of the parties. Thus, the DLHT heard the appeal without aid of the assessors in violation of the dear provision of the Section 23 of the Land Dispute Courts Act, Cap 216 R.E 2019 and Regulation 19 of the Land Disputes Court (District Land Housing Tribunal)...the omission is an incurable defect and it renders the proceedings a nullity." Discussing the added ground of appeal as the 3'"'^ ground of appeal, Mr. BIteho, quoted the ground as thus: "The learned chairperson erred in iaw and fact by ignoring the evidence of structures fixed thereto the suit premises sociai and reiigious services conducted in the disputed property which attracts peace and stabiiity in the community and in the country in generar At the outset, it was clear to me that the wording of the above ground was slightly different from the wording of the ground which was added as a fourth ground of appeal. Nonetheless my consideration of this ground will be guided by the contents of the added ground as recorded by the court and not as quoted by the counsel for the appellant herein. It was submitted in relation to the ground styled as the third ground of appeal that ownership of the company or organization property is the process not a mere document. As such, for the Tribunal to make a declaration as to ownership of the suit property, it must evaluate thoroughly the documents required to be tendered before it. The documents include the minutes leading to the purchase of the suit property, the report of donor who funded to the church and the organization resolution to purchase the suit property. He added that the trial Tribunal decided the matter without considering one who developed the suit property by erecting therein a permanent fixture (unexhausted improvements). It was also argued that deprivation of ownership or deemed right of occupancy without paying compensation is strongly prohibited by the Constitution and ordinary land laws requiring fair compensation to be paid for its deprivation. To support his argument, the case of Mtoro Bin Mwamba vs A.G (1953) TLR 32 was cited. I was told that in the referred case, the court held that where there were no exhausted improvements but some efforts have been put into the land by the occupier, the said occupier will be entitled to perfection under article 24 (2) of the Constitution of the United Republic of Tanzania Cap 2 R.E 2010. Mr Bitaho added that the trial Tribunal did not evaluate the evidence of the source of fund to purchase the suit property from the respondent. He said that the root of the matter that was before the trial Tribunal was the source of fund which were used to purchase the suit property. In this respect, it was argued that the applicant in the trial Tribunal failed to present tangible evidence to prove the said source of fund. Submitting on the second ground of appeal as the 4^^ ground of appeal which reads thus, ''the chairperson erred in law and fact for delivering a judgment in favor of the respondent while the case was not proved on the balance of probabilities/'W Bitaho argued that the trial Tribunal ignored the fact that the existence of the sale agreement per se was not a sufficient proof to show that the disputed land belongs to the respondent. It was his argument that the trial Tribunal misdirected and contradicted itself in its decision and this is apparent at page 9 when it said that: ''Wshahidi unaonyesha juhudiza kupata kiwanja na pesa za kununuiia eneo hiio kwa asiiimia kubwa niza mjibu maombi" He submitted that the trial Tribunal itself admitted that the appellant had the intention to purchase the disputed land, which she indeed purchased, although the document (the sale agreement) bears the respondent's name with explanation at page 6 as to why the sale agreement has the respondent's name. The contents at page 6 of the trial Tribunal's judgment read as follows: "baada ya kununua eneo aiimtaarifu katibu mkuu wa kanisa aitwae Andrew Mwakibungo kwamba amepata eneo Htatumiwa na kanisa au kanisa Hmjerejeshee sh.l,500,000/=(sicy' It was thus maintained that the trial Tribunal failed to evaluate the evidence, and hence arrived at the wrong decision. To support this argument, I was referred to the cases of Stanslaus Rugaba Kasusura vs A.G Phares Kabuye (1982) TLR.338 in relation to leaving contested matters unresolved. I was likewise referred to the case of Martha Michael Weija vs the Hon. Attorney General & 3 others [1982] TLR 35, where the court held that; "The court is entitled to iook at and evaluate the evidence afresh and come to its own conclusion particularly where the trial court or tribunal adopted a wrong approach in evaluating the evidence or omitted to evaluate some of the witnesses or to consider some vital piece of evidence. Obviously, the so called second agreement in the instant matter was one ofthe pieces ofevidence on trial record that called to be reviewed and evaluated. Upon review, it was found wrongly admitted and court proceeded to expunge it from the record. In addition to the above, it was further submitted that the triai Tribunal erred in faiiing to evaluate the appeiiant's evidence on how he came into possession of the disputed property. When repiying on the submissions in reiation to the and 2"^^ grounds of appeai, Mr. Oteyo, submitted that the trial Tribunal's Chairman did not commit any error in law and facts as mandatory procedures applicable in conducting cases in the Tribunal were followed and compiled with. There was quorum of the triai Tribunal, the Chairman was aided with two assessors, Ms. Monica and Prof. Kulaba, the assessors participated in cross examining witnesses (PWl & DWl); the assessor's opinion was read in the presence of the parties before composing the judgment, and the said opinion was taken into account when composing judgment. Therefore, the case of Benedict Lubava (supra), cited by the appellant above is distinguishable from the instant case. Mr. Oteyo continued to submit that, the law of burden of proof provides that, one who alleges must prove. The appellant, however, failed to prove the allegation that the assessors were absent and therefore, failed to submit their opinion in writing. The case of Bhoke Marwa vs Yona 10 Marwa (supra), cited by the appellant, is distinguishable to the case at hand. Mr. Oteyo submitted that page 8, second paragraph of the trial Tribunal's typed judgment, reveals the truth that, the assessor's opinion was considered by the uChairperson when composing judgment. As regard to the submission in respect of the ground, it was submitted in reply that the trial Tribunal's Chairman did not error in law or in fact when he decided that, the respondent is the lawful owner of the suit property. In reaching at the said decision, the Chairman was very keen and framed issues which were compatible with the claims which were before it. It was argued, that the appellant was trying to bring new issues which were not deliberated before the trial Tribunal. To support his argument, he cited the case of Georgia Celestine Mtikila vs Registered trustees of Dar es Salaam Nursery School and Another (1998) TLR 512 where the court held that; "The court cannot consider relief that ought to have been sought in the triai court bellow but was not." 11 As regards to the submissions in relation to the 4^"^ ground, he submitted that the decision of the trial Tribunal was reached as the result of the testimonies delivered by the appellant and the respondent. The applicant before the trial Tribunal (respondent herein) proved his case on the balance of probabilities. Mr. Oteyo finalized his submission by asking the court to uphold the trial Tribunal's decision and dismiss the appeal with Costs. When rejoining, the appellant's advocate reiterated what he submitted in his submissions in chief. He added that the assessor gave his opinion concerning the development made by the appellant. The appellant had as such to be compensated for the said development. Having gone through the parties' rival submissions, the contention between the parties can be resolved by determining the following three issues: i) Whether the act of the trial Chairman proceeding to hear and finally determine the matter while sitting with one assessor invalidated the trial Tribunars decision. 12 ii) Whether the Chairman of the trial Tribunal failed to take into account the assessor's opinion when composing the judgment. Hi) Whether the Chairman of the trial Tribunal evaluated the evidence adduced before the Tribunal. Before discussing these issues, I think there is need to address something concerning the consolidated grounds of appeal, and arrangements of the grounds of appeal in the memorandum of appeal and in the appellant's submissions. The appellant's Advocate, started his submission saying that he consolidated the and the grounds of appeal. But reading the appellant's submission in such respect, it reveals that it is the 1^ and the 3^^ grounds of appeal which were consolidated and argued as one ground of appeal. What is referred as the 4^'' ground of appeal in the appellant's submission, it is the 2"^ ground of appeal in the amended memorandum of appeal, and what is referred as the 3^^ ground of appeal in the appellant's submission, in the amended memorandum of appeal is the 4^^^ ground of appeal. I saw it fit to repeat this clarification notwithstanding the clarification already shown at the beginning. I now proceed to discuss the above raised issues. 13 Regarding the first issue, I perused the proceedings of the trial Tribunal and noted, as rightly submitted by the appellant's Advocate that one of the assessors, Ms. Monica, did not fully participate in the hearing of the matter before the trial Tribunal. The records further reveal that, on 11/10/2017 the assessors Ms. Monica and Prof. Kulaba, were present and they even asked questions to PWl when the matter was fixed for framing issues and hearing the applicant's case. Likewise, on the 25/10/2017 when the matter was scheduled for hearing the defense case, starting with DWl; the two mentioned assessors, were present. However, on the 19/01/2021 when the trial Tribunal heard DW2, the assessor, Ms. Monica did not attend. The trial Chairman sitting with one assessor. Prof. Kulaba continued entertaining the matter to its finality. For the above reason which is apparent in the record of the proceedings of the trial Tribunal, I am not in agreement with the counsel for the respondent that, both assessors participated fully in the hearing of the matter. As I said above, Ms. Monica only participated during the hearing of the PWl, and the DWl. 14 Now, the relevant question is whether under such circumstances, it can be legally ruled that the Chairman of the trial Tribunal actually, committed the irregularity complained of, herein above. In my opinion the answer is in the negative. This is because, section 23 (3) of the Act, allows the Chairman to conclude the matter despite the absence of one assessor who was present at the commencement of proceedings. The first issue is thus, answered negatively. Regarding the second issue, I am of the opinion that it should not detain me since it is clear from the impugned judgment at page 8 that, the Chairman included the opinion of the assessor in his judgment. And it is also clear on the records of the trial Tribunal that on the 12/05/2021, the assessor (Prof. Kulaba) gave his opinion in the presence of the parties, the opinion which was considered by the Chairman when composing his judgment. Thus, the case of Benedict Lubava (supra) cited by the appellant, is distinguishable to the case at hand. Taking into consideration of the above, I am contented that the third issue deals with the contents of the 2"^ and 4'^'^ grounds of this appeal. In answering this issue, again, I had to peruse the record of the trial 15 Tribunal. The results of my analysis were that, both PWl and DWl when testifying before the trial Tribunal, tendered the sale agreement which was labeled as exhibit P2 and exhibit Dl. The sale agreement tendered reveals that, Bi. Fauster Kasmir Mtey, the vendor, sold the suit property to Pentecostal Holiness Mission (Light House Christian Center) (the purchaser) who is the respondent herein, and the appellant's name appeared in the list of witnesses who witnessed the above-mentioned sale agreement. My perusal further shows that the main issue before the trial Tribunal was and I quote "who is the rightful owner of the suit property/' Considering the evidence tendered particularly the sale agreement (exhibit P2 and exhibit Dl), the above issue was answered in favour of the respondent herein. The appellant's counsel submitted that the evidence tendered before the trial Tribunal was not properly evaluated. It was argued that the trial Tribunal did not consider the fact that the fund which was used to purchase the suit property came from the appellant. And that it was the appellant who developed the suit land. The trial Tribunal decided that, the issue concerning the source of fund which was used to purchase or develop the suit land was not before the trial Tribunal. 16 I am in agreement with the trial Chairman's findings on the reason that, what was before the trial Tribunal was the determination of ownership of the suit land between the parties. It might be true that the appellant funded the purchase of the suit land but this was not an issue before the trial Tribunal. The presence of the sale agreement before the trial Tribunal made it easier for the trial Tribunal to decide who is the rightful owner of the suit land between the two parties. This is because the tendered sale agreement reveals the names of the vendor and of the purchaser of the disputed land. The cases of Stanslaus Rugaba Kasusura vs A.G Phares Kabuye (supra), and that of Martha Michael Weija vs the Hon. Attorney General & 3 others, cited by the appellant are distinguishable to the case at hand because these cases apply when the trial court leaves contested material fact unresolved. In the case at hand the appellant is contesting on the issue of compensation which was not before the trial Tribunal. 17 In the end, the appeal lacks merits, and it is hereby dismissed with costs. It is so ordered. . S. MASOUD JUDGE 31/03/2022 - o T tS U II^ 18