robert singo vs yohana mgale 2017 tzhc 2079 16 june 2017

“ORIGINAL”

IN THE HIGH COURT OF TANZANIA

DODOMA DISTRICT REGISTRY

AT DODOMA LAND APPEAL NO. 4 OF 2016 (Appeal from the District Land and Housing Tribunal of Dodoma Land Application No. 137 of 2015) ROBERT SINGO...................................................APPELLANT

VERSUS YOHANAMGALE........................................ RESPONDENT

JUDGEM ENT Date of JUDGEMENT- 16/06/2017. Mansoor, J: This is an appeal against the decision of the District Land and Housing Tribunal of Dodoma in which the respondent herein was declared the lawful owner of the disputed land situate at Nkulabi Village, Mpunguzi Ward within Dodoma Municipality. The Appellant was unrepresented but the Respondent was represented by Counsel Lubyama. The appeal was argued by written submissions. “ORIGINAL” The grounds of Appeal by the Appellant are that the Trial Tribunal ignored his evidence and failed to scrutinise the evidence adduced by the parties at trial, and erred in relying to the weak, contradictory and nugatory evidence adduced by the respondent at trial. That the Trial Tribunal lacked jurisdiction to entertain the dispute. That the judgement pronounced does not qualify to be a judgement. The Appellant argued that he is the legal owner of the land in dispute since 1992 having purchased it from the respondent for a consideration of THz 70,000. He argues that he has developed and used the land for over 20 years now. That the appellant’s sister Jane has been staying in the disputed land until 2000 when she passed away. That the Appellants witnesses especially DW2 testified that the Appellant purchased the disputed land from the respondent, and that he was the ten cell leader, and that he witnessed the Appellant paying the respondent THz

70,000 as purchase price for the land. On 2nd ground, the Appellant argues that the land in dispute is valued at THz 500,000, the current market value, thus the Trial Tribunal lacked jurisdiction to entertain it and that Section 15 of the Land Disputes Courts Act, 2002 provides for jurisdiction of the Ward tribunal in all civil proceedings relating to land to be limited to THz three million “ORIGINAL” only. That the assessors opined on the jurisdiction of the dispute but the Chairperson of the District Tribunal ignored the assessors’ opinion. On this ground Advocate Lubyama for the respondent submitted that the estimated value of the disputed land was THz 5,500,000 which is far above the jurisdiction of the Ward tribunal, and that the chairperson of the Trial Tribunal had a good ground to depart from the opinion of the assessors. On the ground on jurisdiction, I agree with the submissions by the Appellant that the question of jurisdiction is fundamental, and that any trial conducted by a Court or Tribunal with no jurisdiction is a nullity. However, it is on record that the respondent stated in his Application /Plaint that the value of the subject matter was THz 5,500,000, if the Appellant was disputing this value, he was duty bound to file a valuation report before the Tribunal asserting a different value from that shown in the Application by the respondent. Secondly, the

pecuniary jurisdiction of the case is determined by the value of the substantive claim and not the quantified general damages. The case of Tanzania -China Friendship Textile Co. limited vs. Our Lady o f the Usambara Sisters “ORIGINAL” Civil Appeal No. 84 o f 2002, reported in TLR 2006 at page 70, where the Court of Appeal stated at page 71, and I quote: “on the question whether the Trial Court had jurisdiction to adjudicate upon the matter, the issue was not raised before the High court, but since it was about jurisdiction o f the Court, it could be raised at any stage , even on a p p e a l (Emphasis mine). And it continued: “It is the substantive claim and not the general damages which determine the pecuniary jurisdiction o f the Court. ” The value of the land in dispute was given in the clause of the Application but it was not given in the documents attached to the Application. The above cited case is the Court of Appeal decision, and from the above findings, a clause in the Application showing the value of the subject matter which value was not countered by the Appellants herein conferred jurisdiction of the Tribunal to hear this matter This is a land matter. The jurisdiction of the Court should be determined and fixed by the valuation of this suit 4 “ORIGINAL” land at the time of its institution. That valuation reflects the value of the subject matter of the suit. The

provision of S.37 (a) of the Courts (Land Disputes Settlements) Act. No. 2 of 2002, Cap 216 R: E makes it clear that it is the value of the subject matter of the suit that fixes the pecuniary jurisdiction of the courts and that the High Court is given pecuniary jurisdiction on immovable property whose value is not below THz 50,000,000. The Applicant (now the Respondent) had pleaded the value of the suit land in his application and it is the Applicant’s valuation in the Application that fixes the pecuniary jurisdiction of the Court. The Appellant ought to have brought valuation report showing a different value from that pleaded by the respondent. This ground of appeal lacks merit and it is dismissed with costs. I have heard the rests of the grounds and they are all centred on the evidence and witnesses presented by the Appellant at Trial. The core issue to be decided is whether or not the Appellant purchased the land from the respondent in the year 1992. I agree with the Trial Court decision that this fact was not proved as required by standard of proof in civil cases. The Appellant ought to have produced a sale agreement for the sale of this land by the respondent to him, or even a receipt proving that he paid for the land. 5 “ORIGINAL” The Appellant failed to prove his case at the Trial Tribunal as required by the cardinal principles of law of “he who alleges” must prove as

stated in Section 110 of the Evidence Act, Cap 6 R: E 2002 and as stated in the case of Rock Beach Hotel limited vs. Tanzania Revenue Authority, Civil Appeal No. 52 of 2003, Court of Appeal observed: “we are mindful o f the provisions o f Section 110 o f the Evidence Act, 1967 Cap 6, R:E 2002 which places the burden o f proof on he who alleges by stating inter alia: 110(1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence o f facts which he asserts must prove that those facts exists. (2) When a person is bound to prove the existence o f any fact, it is said that the burden o f proof lies on that person ............. ” The Appellant herein had the burden of proving the fact that he purchased the land in 1992 from the respondent and that he paid THz 70,000 as purchase price. He could not do “ORIGINAL” The Appellant gave oral evidence only. Oral evidence must be direct and that hearsay is not admissible evidence as provided by Section 62(1) of the Evidence Act, Cap 56 R: E 2002. All the witnesses of the Appellant were giving indirect hearsay evidence. Again, as long as this disputed land is un-surveyed, the principles set in the case of Methuselah Nyagaswa vs. Christopher Mbote Nyirabu, 1985 TLR 103 applies, in which the principles set were that for any disposition of un­ surveyed land, the Village Council, in the case of a

Village land should be involved in the sale. This did not happen in regard to this disputed land. It is regardless and irrelevant whether the Appellant stayed or occupied the land or her sister lived in the land and died and was buried in that land. The Applicant ought to have involved the Village Council when he was purchasing the land, he did not do so and he should bear the peril of his own negligence. This is simply an appellate Court, and cannot interfere with the findings of fact, and can only do so in some circumstance, as held in the case of Materu Lesion vs. R Sospeter (1988) TLR 102 in which it was held that: 7 “ORIGINAL” “Appellate Courts may in rare circumstances interfere with the Trial Court’s findings o f facts. It may do so in instances where Trial Courts has omitted to consider or had misconstrued some material evidence...... or had erred in its approach to evaluate evidence.” The Trial Tribunal did not err in evaluation of evidence submitted by the Respondent and the Appellants’ witnesses. There was no indication that the Trial Chairman failed to take some material points or circumstances into account in his judgment and so it is impossible and improper for a Court of Appeal to say that he has come to an erroneous conclusion. I refer to the case of Christian s/o Kale and Rwekaza s/o Bernard vs. R (1992) TLR 302 at page 305. Lastly, I did not find any fault in

the style of judgement of the Chairperson of the Tribunal, as there were facts properly stated, there were findings of the issues properly stated, there was a decision and the reasons for the decision were amply stated. Based on the above, the appeal lacks merits and it is hereby dismissed, with costs. 8 “ORIGINAL” Appeal dismissed with costs. DATED at DODOMA this 16™ day of JUNE, 2017 L. MANSOOR ; .' JUDGE -■ .vVv. ^ ‘ \\ : \fA 16™ JUNE 2017 I: 9