SAGANDA KILULU NHANDI LAND APPEAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISRTY OF SHINYANGA AT SHINYANGA LAND APPEAL REF. NO. 202405101000010742 SAGANDA KILULU NHANDI….…………….……………..APPELLANT VERSUS HUSEIN OMARY ABUBAKARY…...…………………….RESPONDENT [Appeal from the decision of the District Land and Housing Tribunal of Maswa at Maswa.] (Hon. J.T. Kaare, Chairman.) dated the 20th day of December, 2023 in Land Application No. 38 of 2023 ----------- JUDGMENT 30th July & 25th September, 2024. S.M. KULITA, J. This is an appeal from the District Land and Housing Tribunal (DLHT) of Maswa. The story behind this appeal in a nut shell is that, the respondent instituted a Land Application No. 38 of 2023 against the appellant, over 2.5 acres of land situated at Kisesa hamlet in Bariadi ward, Nyangaka village, Bariadi District within Simiyu Region. The respondent claimed 1 ownership over the suit land, following purchasing the same from late Nhandi Nyanyanga who is the Appellant’s grandfather on 15th February, 1999, at a consideration of Tshs. 100,000/=. The respondent claimed to have been using the said land till 2022 without any interference. It is from the year 2022, when the appellant started invading on the disputed land. On his part, the appellant claimed to have been using the land that formerly belonged to his grandfather, who then passed it to his father. He went further stating that the respondent has just been using the said land regarding hiring it from them. At the end, the DLHT for Maswa gave victory to the respondent over the said disputed land. That decision aggrieved the appellant, hence this appeal with six grounds as follows; one, exhibits P1 and P2 were admitted without being read aloud and the appellant been given chance to peruse for objection if any, two, the appellant was sued while he had not yet been appointed as administrator of the estate of Nhandi Nyanyanga, three, the case was wrongly heard while the appellant was not appointed as administrator for the estate of the late Nhandi Nyanyanga, four, it was wrong for assessors’ opinion not being recorded to form party of the proceedings, five and six, the trial Chairman improperly evaluated the evidence on record. 2 On 30th July, 2024 the matter was scheduled for hearing. Both parties appeared in person, unrepresented. Submitting in support of the appeal, the appellant prayed for his grounds of appeal to be adopted and form part of his submissions. Then, he stated that, the respondent did purchase just part of his grandfather’s land, but he encroached one acre alongside it. He said that the said one acre was just hired to him. In his reply, the respondent stated that, he did not hire the disputed land, but he purchased the same from the appellant’s grandfather since 1999. He added that, he has been using it without being interfered till 2022 when he went to Muhimbili Hospital in Dar es Salaam. That is when the appellant got a chance to trespass into the suit part of the land. He said that, his ownership over the said land can be justified by the sale contracts which he had tendered at the trial tribunal and admitted as exhibits P1 and P2. In rejoinder the appellant stated that he was in court (DLHT) during trial but he was not shown the said land sale contracts. He went further stating that, what he knows is that, the respondent did purchase only 2.5 acres of land from his grandfather, not the whole area with 3.5 acres. 3 I have earnestly gone through the parties’ submissions and the records of the trial tribunal as well. What can be seen from the submissions of the parties is that, there is no dispute that the respondent had purchased a piece of land from the appellant’s grandfather. What the parties dispute is whether the respondent purchased 2.5 acres piece of land or 3.5 piece of land. The appellant has a version that the respondent bought only 2.5 (two and a half) acres of land, but the respondent has illegally increased it to 3.5 (three and a half) acres of land. This appellant’s stand has been raised not only in his submissions made before this court, but it was also featured in his Written Statement of Defense at the trial tribunal. Following this scenario, the trial Chairman ought to have done the following; firstly, to visit the disputed land, the act that he did not. The trial tribunal’s proceedings reveal that, there was no visit made at the disputed land. Through visitation measurements could have been done and so the dispute could have been settled effectively. Secondly, as it was raised in the first ground of appeal by the appellant that when he was admitting the land sale contracts tendered by the respondent, the trial Chairman never given the same to the appellant 4 before such admission, for perusal. Further, the records show that, the said land contracts were not read aloud before the court. These two omissions barred the appellant from knowing as to whether the said contracts are genuine. Not only that, but also bared the Appellant to ascertain the size of land alleged to have been sold to the Respondent by his grandfather. The requirement of showing the opponent party, for him/her to examine, and object if any, the document intended to be tendered to court as exhibit, has been stated in the case of Ex - D 8656 CPL. Senga Idd Nyembo & Others vs Republic (Criminal Appeal 16 of 2018) [2020] TZCA 381 (7 August 2020). As for the issue of reading it aloud before the court after the admission, the case of Erneo Kidilo & Another vs. Republic (Criminal Appeal 206 of 2017) [2019] TZCA 253 (21 August 2019) has made a clarity. With these two defects in respect of the documentary exhibits P1 and P2, this matter should be retried. For the interest of justice, that should be done another Chairman. The said Chairman should observe all rules on the procedures and make a visit to the disputed land for verifications of boundaries and measurements. 5 In upshot, I find the appeal meritorious to that extent, that it is partly allowed. Each party to bear his own costs. S.M. KULITA JUDGE 25/09/2024 DATED at SHINYANGA this 25th day of September, 2024. S.M. KULITA JUDGE 25/09/2024 6