SAID NGOLOLA PESAMBILI VS ABDI HASSAN MRINGO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI LAND APPEAL NO. 53 OF 2023 (Arising from Land Application No. 15 of 2021 of Mwanga District Land and Housing Tribunal) SAID NGOLOLA PESAMBILI @ LUCA ………………...... APPELLANT VERSUS ABDI HASSAN MRINGO ……………………….….. 1ST RESPONDENT BAGHASHA SWEDI BARAGHASHI ……………… 2ND RESPONDENT MISIME HUSENI MVUNGI ………………...……… 3RD RESPONDENT JUDGMENT 18/04/2024 & 06/05/2024 SIMFUKWE, J In the District Land and Housing Tribunal for Mwanga at Mwanga the appellant herein lodged a suit against the respondents. He alleged that the respondents had trespassed his land measuring 49 X 42 paces situated at KNCU Kati street, Lang’ata Bora Ward within the District of Mwanga in 1 Kilimanjaro Region. The appellant claimed that he acquired the said land from his sister through a deed of gift. That, he was using it for agriculture and pastoralism activities, until in 2021 when the 1st respondent trespassed into it on allegation that he had purchased it from the 2nd respondent. The appellant sought for the following reliefs against the respondents: (i) A declaration that he was the rightful owner of the suit land; (ii) The respondent to be ordered to stop interfering the applicant in his land; (iii) Eviction order against the respondents, their agents, workers, assignees, servants or otherwise whomsoever, from the said land; (iv) Perpetual injunction to restrain the first respondent, his agents, servants, workers, assignees or otherwise, from remaining or entering in the said land for any purpose of construction or erecting any structure therein or for whatever purpose; (v) Decree and order for payment of TZS five million (5,000,000) as compensation and general damages and (vi) Any other relief the court deems fit and just to grant. 2 In their respective written statements of defence, the respondents opposed the claims of the appellant. The 1st respondent claimed that the said land belonged to him as he bought it from Mzee Baghasha Swedi Baraghashi (2nd respondent) on 16/05/1999. Whereas the 2nd respondent claimed that the said land belonged to him as he acquired it from Mzee Alkado in 1980 on consideration of TZS 1,500/=. He was residing at the disputed land until 1999 when he sold it to the 1st respondent. The 3rd respondent alleged that he purchased the disputed land from one Simon Pande. After full trial, the trial Tribunal dismissed the appellant's case and declared the 1st and 3rd respondents as lawful owners of the disputed land. Aggrieved, the appellant lodged the present appeal on six grounds as advanced in his amended memorandum of appeal as follows: 1. That, the trial Chairman erred in fact and law, by failing to analyze evidence presented before it, which led to wrong decision against the appellant. 2. That, the lower Tribunal’s proceedings are tantamount and tainted with illegalities which are incurably fatal in the eyes of the law. 3 3. That, the lower tribunal proceedings are tainted with illegalities which are incurably fatal in the eyes of the law. 4. That the lower Tribunal failed in fact and law as the respondents lack locus standi on the suit land on which they reside which belongs to the appellant. 5. That, the lower tribunal failed to raise issues which would determine the actual original owner of the suit land. Hence arrived to a wrong decision. 6. That, the lower Tribunal failed to properly assess and corroborate the evidence from SM2 and SM3 which proved that the appellant was the owner of the suit land and hence arrived at a wrong judgment. At the hearing of the appeal, the parties were unrepresented. The appeal was argued through filing written submissions. Before addressing the Court on the advanced grounds of appeal, the appellant narrated the origin of this dispute to the effect that, the disputed land was owned by one Tabu Vitalis who had purchased it with her husband from one Eko Masihara Mzambia in 1976. He explained that, Tabu Vitalis was his sibling. In 1996 Tabu Vitalis gave him the disputed 4 land through a deed of gift. He stated that one Simon Pande (now deceased) rented a small portion of land measuring 8 paces from Tabu Vitalis. However, the said Simon Pande without consent from Tabu, invited the 3rd respondent who later purchased that piece of land unlawfully. The appellant elaborated further that, the 3rd respondent started to develop the suit land. Tabu Vitalis sued the said Simon Pande his tenant before Kagongo primary court in Mwanga district vide Shauri la Madai Na. 6/1996. Kagongo primary court ordered that the disputed land should be restored to Tabu Vitalis and that the house of the 3rd respondent should be demolished. However, the 3rd respondent went to another primary court of Mwanga vide Civil Case No. 37/1997 and sued Tabu Vitalis and Simon Pande. The same was decided in favour of the 3rd respondent. The appellant asserted that the trial Tribunal noted it on its record but did not see the reason to work on it. He informed this court that the 1st respondent was a tenant of the 3rd respondent. That, while the proceedings were pending, the appellant who was bequeathed the said land was falsely accused by the respondents with armed robbery case of which he was sentenced to 30 years 5 imprisonment, but he was acquitted on appeal. Then, he decided to file the instant case. Supporting his grounds of appeal, the appellant opted to argue the first and second grounds of appeal jointly. The two grounds concern failure to analyse evidence and that the tribunal’s proceedings were tainted with illegalities which are incurably fatal in the eyes of the law. He explained that for evidence to be conclusive that parties have won their case on merit, the same need to be valid. He referred to page 4 of the judgment which appreciate the existence of two civil cases over the same piece of land by two different courts which were Shauri la Madai Na. 6/1996 of Kagongo primary court and Shauri la Madai Na. 37/1997 of Mwanga primary court. The appellant suggested that the trial tribunal should have reviewed this apparent error that led to a great miscarriage of justice on part of the appellant. He questioned how could one court decide in favour of Vitalis and another in favour of the 3rd respondent while it was not an appeal. On that basis, the appellant concluded that the lower Tribunal’s proceedings are tainted with illegalities which are incurably fatal in the eyes of the law. To support his assertions, the appellant referred the case of The Judge in charge of the High Court at Arusha & Another v. N.N. Munuo Ng'uni [2006] T.L.R. 44 (unreported) which stated that, 6 it would be appropriate for the lower courts to refer the matter to the original court and not open a fresh case as it would cause a lot of confusions on the records. Arguing in support of the fourth ground of appeal which concerns locus standi of the respondents on the suit; the appellant submitted that the 2nd respondent averred that the appellant’s mother sold the suit land to her but she had never presented any proof to establish the facts. He argued that her deceased mother was taken care by the 2nd respondent and that he built a temporary kiosk for selling groceries such as onions and tomatoes, back then. That, upon hearing that the appellant had been sentenced to 30 years imprisonment, he claimed that he had purchased the said land from the appellant’s mother. It was the appellant’s argument that even if it was true, their mother could not have sold the land which did not belong to her. He insisted that the said land belonged to Tabu Vitalis, his sister who bequeathed the land to him as a gift. From the narrated genesis of this case, the appellant stated that the respondents have always been trespassers on the appellant's suit land as the primary court record indicate, Tabu Vitalis was declared the lawful owner of the suit land by Kagongo Primary court vide Shauri la Madai No. 7 06/1996. The appellant annexed the said decision to his submission. He added that, the 3rd respondent did not appeal against the said decision. Instead, he maliciously instituted another case before another court with concurrent jurisdiction contrary to the law. That, the fate of the earlier decision was never decided. The appellant believed that that was important issue which the trial tribunal ought to have elucidated and decided. The appellant prayed this court to allow his appeal by reversing the trial tribunal’s judgment and issue necessary orders with costs. In their joints written submissions, the respondents vehemently resisted the appellant’s submission including the historical background narrated by the appellant. Replying the first and second grounds of appeal on failure to evaluate evidence, and that the proceedings were tainted with illegalities which are incurably fatal in the eyes of the law; the respondents submitted that the appellant is not aware of his case since at page 4 of the judgment, the trial tribunal tried to elaborate the 3rd respondent's suit land. That, in 1996 after the land dispute arose between Tabu Vitalis and Simon Pande, on ground that Simon Pande sold a house owned by Tabu Vitalis to one 8 Hussein Mbaga; Tabu Vitalis (appellant's sister) filed a suit before Kagongo Primary Court against Simon Pande. The primary court decided the suit in favour of Tabu Vitalis. Surprisingly, she included the 3rd respondent's plot. The 3rd respondent was not informed about the dispute. He was ordered to demolish his house and vacate the place. Then, the 3rd respondent managed to file a suit at Mwanga Primary Court in which he was declared the rightful owner of the suit land. Whereas the decision of Kagongo Primary court was quashed but the appellant’s sister did not bother to appeal despite the fact that the right to appeal was explained. Concerning the issue of locus standi of the respondents; the respondents replied that during the trial, they testified clearly on who was the rightful owner of the land in dispute. They said that it seems the appellant do not understand the meaning of locus standi. The respondents explained that in 1980 the 2nd respondent purchased land from Bibi Kibibi the mother of the appellant for a consideration of Tanzania shillings One thousand and five hundred (1,500/=) as reflected at page 4 of the judgment. The second respondent managed to build two houses in 1980. He stayed there up to 1999 when he decided to sale that land to the 1st respondent and vacated the place. Thus, a total of 19 years had lapsed from 1980 up to 1999. The appellant took no action until in 2021 when he filed the instant 9 suit at the trial tribunal. The respondents referred this court to Item 22 of Part I to the First Schedule of The Law of Limitation Act, Cap 89, R.E 2019 which set out the limitation period for filing suits to recover land. They commented that, this suit had no stand ab initio since the limitation period for instituting land matters is twelve (12) years. The respondents submitted further that, according to the trial tribunal’s record, they had presented watertight evidence and their witnesses adduced direct evidence which was convincing. That, the case was decided on balance of probabilities. Reference was made to the case of Hemed Said vs Mohamed Mbilu [1984] TLR 113 which held that: "The party whose evidence is heavier than that of the other is the one who must win the case." The respondents recalled the principle governing proof in civil suits that, "he who alleges must prove." Thus, the duty of the appellant was to prove the legality of his ownership of the land in dispute. However, he failed to prove his case. That, since the appellant was the one who filed a suit at the trial tribunal, the law requires him to prove his case as he was the one who alleged. It was not the duty of the respondents to prove ownership of the land in dispute. It was insisted that the burden of proof cannot shift 10 to the respondents to prove that the disputed land belongs to them. They added that there was ample evidence on their side of how they acquired the said land. The respondents buttressed their submission with the case of Abdul Karim Haji vs Raymond Nchimbi Alois and Joseph Sita Joseph [2006] TLR 414 and 429 where it was stated that: "It is an elementary principle that he who alleges is the one responsible to prove his allegations. Since the appellant is the one who filed a suit to the Ward Tribunal, he was duty bound to prove his allegations he had alleged in the tribunal." Another reference was made to the case of Barelia Karangirangi vs Asteria Nyalwambwa, Civil Appeal No. 237 of 2017, in which the Court of Appeal of Tanzania at page 7 and 8 held that: “At this juncture, we think it is pertinent to state the principle governing proof of a case in civil suits. The general rule is that he who alleges must prove. The rule finds a backing from section 110 and 111 of the Law of Evidence Act, Cap 6 R.E 2002 which among other things states: 11 “Section 110(1) whoever desires any court to give judgment as to any legal right or liability dependent on existence of facts which he asserts, must prove that those facts exist." Furthermore, the respondents contended that it is settled principle that the appellate court should not interfere with findings of facts by the lower courts unless there are strong reasons to do so. They asserted that, in this case the trial tribunal have not misdirected or misapprehended valid evidence or legal principles affecting the ends of justice and or resulted into miscarriage of justice. They cited the case of Musa Hassani vs Barnabas Yohanna Shedafa (Civil Appeal 101 of 2018 [2020] TZCA 34 which observed that: “It is our considered view that the court will only interfere with findings of fact of lower courts in situations where a trial court had omitted to consider or had misconstrued some material evidence; or had acted on a wrong principle or had erred in its approach in evaluation of the evidence." In view of the arguments above and authorities, the respondents prayed the court to dismiss the appeal with costs accordingly. 12 In his rejoinder, the appellant reiterated his submission in chief. In respect of the 2nd respondent, he insisted that he was only invited to stay with the appellant’s mother for a while and he has never purchased the land as claimed as there is no documentary evidence. He insisted that the said land was acquired by his sister who later gave him as a gift. Regarding how the 3rd respondent acquired the said land, the appellant responded that there is contradiction in his evidence as at one point he claimed to have purchased the land from one Simon Pande while at the same time he alleged that he was granted the suit land by the local government of the village. The appellant submitted that the village does not own any land. Rather, it just administers and ensures proper ownership channels. In respect of Shauri la Madai Na. 6/1996, the appellant rejoined that the same was never transferred to Mwanga Primary Court via Shauri Na. 37/1997. The appellant commented that the presence of the said suit was an abuse of court procedures and processes. He cited the case of Napambano Michael @ Manyanga vs Republic, Criminal Appeal No. 268 of 2015 which held that: 13 “The duty of first appellate court is to subject the entire evidence on record to a fresh revaluation in order to arrive at decision which may coincide with the trial court’s decision or may be different altogether.” The appellant questioned the act of the 3rd respondent to institute a fresh case before another court of the same jurisdiction. He insisted that, the 3rd respondent was the first person to unlawfully purchase the land from Simon Pande who had a tenant capacity over the said land. He stressed that the land belonged to him. From the six amended grounds of appeal, evidence on trial tribunal’s record and the rival submissions of both parties, issues for determination are: 1. Whether the trial Tribunal erred in its evaluation of evidence adduced before it. 2. Whether the trial Tribunal’s proceedings are tainted with illegalities 3. Whether the respondents have locus standi. 14 Starting with the first issue whether the trial Tribunal erred in assessing and evaluating evidence adduced by the parties; I have gone through the judgment and proceedings of the trial Tribunal. The judgment of the trial Tribunal speaks loudly that the learned trial Chairman referred to agreed issues as reflected at page 9 of the trial tribunal proceedings. Then, he summarised evidence of both sides. Responding to the first issue on who was the rightful owner, between the applicant and the respondents, at page 5 the Hon. Chairman had this to say: “Kwa Ushahidi wa pande mbili kujibu kiini cha kwanza kuwa je eneo la mgogoro ni la nani kati ya mdai na wadaiwa? Mwombaji amedai alipewa/alikabidhiwa ardhi hiyo na Tabu Vitalis ambaye ni dada yake kwa WOSIA wa tarehe 21/11/1996. Hakuna WOSIA alioutoa mwombaji kama ushahidi wa maandishi kuthibitisha kweli alipewa/alikabidhiwa ardhi hiyo ya mgogoro na Tabu Vitalisi. Hukumu ya shauri lililoamriwa nyumba za Hussein na Dr. Mvungi zibomolewe pia hakutoa kama ushahidi. Hukumu ya kubomoa nyumba ya Dr. Mvungi ilibatilishwa na hukumu ya Shauri la Madai Na. 37/1997 15 Mdai akiwa Msime Hussein Mvungi dhidi ya 1. Tabu Vitalis 2. Simon Pande Kielelezo B8.” Emphasis added At page 6, the learned Chairman stated further that: “Kuhusu mashtaka ya mjibu maombi wa kwanza mauziano yalifanyika 1999 kati ya mdaiwa wa kwanza na wa pili. Tangu 1999 hadi mashtaka haya yanaletwa hapa barazani 2021 yapata miaka 22. Ukomo wa kupeleka mashtaka mahakamani yanayohusu ardhi ni miaka 12 ya kisheria hivyo mashtaka haya yamepitwa na wakati....” The above findings were the basis of dismissing the appellant’s application. With all due respect to the appellant, it is settled law that in civil cases the one who alleges must prove. Moreover, the court will always sustain evidence which is heavier than the other. Section 110 of the Evidence Act, Cap 6 R.E 2019 is relevant. There are numerous decisions to that effect. In the case of M & M Food Processors Company Limited vs CRDB Bank Limited and Others, (Civil Appeal 273 of 2020) [2023] TZCA 243, the Court of Appeal held that the standard of proof in civil 16 cases is on balance of probabilities, which simply means that the court will sustain such evidence which is more credible than that of the other on a particular fact to be proved. In another very recent decision in Dr. Richard Kigaraba v. Jonas Laurent and Two Others, Civil Appeal No. 377 of 2019 [2024] TZCA (15 April 2024) at page 16 & 17 the Court of Appeal held that: “It is elementary law that a person who alleges must prove what he alleges. It is the appellant who brought the first and second respondents to court and it was incumbent upon him to prove his allegations. This burden, upon settled law, did not shift – see: Paulina Samson Ndawavya v. Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017 [2019] TZCA 453 (11 December 2019) TanzlII and Jasson Samson Rweikiza v. Novatus Rwechungura Nkwama (Civil Appeal No. 305 of 2020) [2021] TZCA 699 (29 November 2021) TanzlII. In the former case, we reproduced the following excerpt from Sarkar’s Laws of Evidence, 18th Ed., by M. C. Sarkar, S. C. Sarkar and P. C. Sarkar, published by Lexis Nexis thus: 17 “.... the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for negative is usually incapable of proof. It is ancient rule founded on consideration of good sense and should not be departed from without strong reason .... Until such burden is discharged the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom the burden lies has been able discharge his burden. Until he arrives at such a conclusion, he cannot proceed on the basis of weakness of the other party .... “ In this case, since the appellant claimed to be the lawful owner of the disputed land, he was supposed to prove that indeed he was the lawful owner by tendering evidence to support his allegations. As rightly decided by the trial Chairman, the appellant miserably failed to prove that he was given the said land by his sister. As quoted above, he did not tender the deed of gift as pleaded. On part of the respondents, they managed to tender eight exhibits to support their testimonies and their testimonies together with their witnesses did not contradict. In his grievances on the 18 6th ground of appeal, the appellant said that the lower tribunal failed to properly assess and corroborate evidence of SM2 and SM3 which proved that he was the owner of the suit land. With respect to the appellant, evidence of SM2 and SM3 contradicted the testimony of the appellant. While the appellant testified that his sister purchased the disputed land from Mzambia, SM2 said that the sister of the appellant inherited the suit land from her parents. SM3 testified against the appellant that after he had complained, he defaulted appearance thus, they decided in favour of the 2nd respondent Baghasha. When cross examined by the assessors of the tribunal, SM3 said that they were provoked to decide against the appellant because he had defaulted appearance while he was the complainant. In the circumstances, on the issue of evaluation of evidence, this Court is satisfied that the trial Tribunal assessed/evaluated evidence of both parties thoroughly. Its approach was very systematic. Thus, the decision of the trial Tribunal was justifiable. Also, the appellant complained that despite the fact that the trial chairman noted the existence of the two decisions from the primary courts, he relied on the same instead of quashing the two decisions. He believed that the illegalities were incurably fatal in the eyes of the law. I am of strong opinion that the trial Chairman was not the right person to be blamed for 19 existence of the two decisions. As rightly stated by the trial Chairman at page 6 of the judgment that the trial Tribunal could not invalidate the judgment of another court as it was not exercising its appellate jurisdiction. Therefore, the allegations that the trial tribunal proceedings are tainted with illegalities are unfounded as the existence of the two cases were not occasioned by the trial tribunal. It may also be noted that, the parties of the impugned two cases were different. Hence, the 2nd and 3rd grounds of appeal have no merit. On the third issue which concerns locus standi; as rightly submitted by the respondents it seems the appellant does not understand the meaning of locus standi. Since he is a layman, he is not to be blamed. However, his submission in respect of the said issue connotes that the respondents were wrongly declared to be lawful owners. Based on the findings herein above, the respondents adduced more credible and probable evidence which warranted them to be declared as lawful owners by the trial tribunal. As a result, the fourth ground of appeal fails. It is on the basis of the above findings that I confirm the decision of the trial Tribunal and dismiss this appeal with costs. It is so ordered. 20 Dated and delivered at Moshi this 6th day of May 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 06/05/2024 21