said salim aboud another vs anneth mwaya 2023 tzhclandd 17257 19 december 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 357 OF 2023 (Arising from Miscellaneous Land Application No. 626 of2022) SAID SALIM ABOUD........................................................... 1st APPELLANT GEORGE MASANJA.............................................................. 2nd APPELLANT VERSUS ANNETH MWAYA.................................................................. RESPONDENT (Arising from the judgment of the District Land and Housing Tribunal at Kigamboni in Application No. 122 of2022 delivered on 30/8/2023 by Hon. Wambiii) Date of last order: 06/12/2023 Date ofJudgment: 19/12/2023 JUDGMENT A. MSAFIRI, J The appellants were aggrieved by the judgment of the District Land and Housing Tribunal of Kigamboni (herein the trial Tribunal) in Land Application No. 122 of 2022 on which the trial Tribunal decided in favour of the respondent and declared her to be the lawful owner of the land in dispute located at Mwasonga Kisarawe II, Kigamboni Municipality, with a size of four (4) acres. i The appellants have advanced seven (7) grounds of appeal which I have no intention to reproduce herein but I will analyse them in my determination of this appeal. The appellants prays for the appeal to be allowed and the decision of the trial Tribunal in Land Application No. 122 of 2022 be quashed and set aside. The hearing of the appeal was by way of written submissions. However, the Court entered an ex-parte order against the respondent after receiving the proof that the same was served by the Court process server named Ibrahim Ally and the respondent received and signed the summons but for the reasons known to herself, decided not to appear in Court for her defence. The respondent was served and received service on 22/9/2023 and on 23/11/2023, this Court entered an ex-parte order against her. In that position, it was the appellants only through their advocate Mr. Ramadhani Karume, who filed their written submission in defence of the appeal. The learned advocate Mr Karume consolidated the 1st and 3rd grounds of appeal as they both relate to the issue of ownership of the land in dispute. He submitted that during the trial, the respondent tendered only two (2) exhibits being "Mkataba wa Mauziano" (exhibit Pl) and "Hati ya kushindwa kupata suluhu" (exhibit P2). That meanwhile 2 during the trial the 2nd appellant tendered "Hati ya Kupewa eneo" (exhibit D4) which demonstrate the ownership of the 2nd appellant over the land dispute. He said further that, the respondent never tendered any document to prove the ownership of the late Stanley Mwaya over the land in dispute and this failure led the trial Tribunal to enter a wrong judgment. That the trial Tribunal ought to have decided in favour of the appellants as they are the one who proved their case. He cited the case of Hemed Said vs. Mohamed Mbilu [1984] TLR 113 On the 2nd ground, the counsel argued that the trial Tribunal erred on not deciding as to whether the respondent lawfully came into possession of the land in dispute after it was handed to her by Josephine G. Nyindo as administratix of the estate of the late Stanley Mwaya. That there was no evidence as to whether Josephine G. Nyindo had powers to give the land in dispute to the respondent. That the agreement as shown by exhibit Pl was between Familia ya Stanley Mwaya and Anety Stanley Mwaya and not Josephine G. Nyindo. On the 4th ground, Mr Karume submitted that the trial Chairperson erred for declaring the respondent the lawful owner of the disputed land without considering the existence differences on the specification of the 3 said land in dispute. That it is the requirement under Regulation 3(2) (b) of the G.N 174 of 2005 that for the land disputes to be determined at the District Land and Housing Tribunal then specification of land must be clear. That in the sale agreement between Jafet Mornes and Stanley H. Mwaya, it shows the land in dispute measures three(3) acres only while in her claim the respondent claimed for a land measuring four(4) acres. He was of the view that, the existing difference on specification of the land in dispute is fatal. On the 5th ground of appeal, the counsel for the appellants contended that during the trial the assessors gave evidence instead of the opinion. That from the proceedings, the assessors Mama Kayagwa and Mama Swai introduced a new testimony that the late Stanley Mwaya bought the land in dispute from Jafet Mornes and they did so by relying on the document which was never tendered by the respondent during the trial. That, this was improper and contrary to the rules of procedure. He prayed for the Court to nullify the proceedings and judgment of the trial Tribunal on ground that the conducts of the assessors during trial were illegal. On the 6th ground, Mr. Karume submitted that the mode adopted by the trial Tribunal for analysing and evaluating the testimony by only 4 relying on the demeanour of the witness could only be used to establish the credibility of the witness but not the truth of the testimony. That the Tribunal erred by determining a case on basis of demeanour of the witness and not proof of facts as required by the law. On the 7th ground, the counsel submitted that the Tribunal erred in relying on the documents which were never tendered hence entering erroneous judgement. That at pages 6 and 8 of the impugned judgement, the trial Tribunal referred to sales agreement between Jafet Mornes and Stanley Mwaya dated 07/06/2009 but this document was never tendered as exhibit. To cement his point, he cited the case of Godbless Jonathan Lema vs. Musa Hamisi Mkanga and 2 others, Civil Appeal No. 47 of 2012 where it was held that annexures attached to the plaint or written statement of defence are not evidence. He concluded by praying that the appeal be allowed and the decision of the trial Tribunal be quashed and set aside. This being the Court of first appeal, it has mandate to go through the evidence, make re-analysis and come to its own conclusion particularly where there is dissatisfaction of the trial Court's analysis of evidence by aggrieved party. Jw L- 5 Therefore having gone through the appellants' submissions on their grounds of appeal, I will now go through the proceedings and analysis of evidence as it was adduced during the trial. Initially it was the respondent Anneth Mwaya who instituted Application No 122/2022 against the two appellants claiming to be declared the lawful owner of the suit property described as a piece of land measured four(4) acres located at Mwasonga, Kisarawe II in Kigamboni Municipality. The respondents( now the appellants), filed their written statements of defence and the 1st respondent Saidi Aboud (now the 1st appellant) filed a counterclaim claiming that he is the lawful owner of the suit property and praying for the order of permanent injunction to restrain the applicant from interfering in the suit property in anyway. During the hearing, the applicant (now respondent) testifying as SMI stated that she is the owner of the farm described as suit property and she got the farm by inheriting it from her late father and she was given the inheritance by the administrators of the estate of her late father one Josephina Nyindo and Gideon Mkwaya and she inherited the farm in 2013. She said that she was given the farm in presence of the Hamlet Chairman. She tendered the handing over letter/agreement which was admitted as exhibit Pl. JW „ - 6 SMI said further that her father Stanley Henry Mwaya purchased the suit property from various people in 2009 and that at first, the farm was measured at six (6) acres. That she developed the farm by planting various trees and crops until 2021 when there was a Mining Company that wanted to acquire the area where the farm was located for the mining activities. That the owners of the area were summoned for their lands to be assessed, valued and be compensated. That it was that day of assessment when SMI through her mother and brother, discovered that her land has been invaded by trespassers. She said that she received summons from the Ward Tribunal where she was informed that she has invaded the land of Said Abdul. That the mediation at the Ward was unsuccessful hence the parties were given letter to file suit at the District Tribunal. The letter from the Ward Tribunal was admitted as exhibit P2. The evidence of the applicant was supported by SM2 Scolastika Shabani who said she knows the father of the applicant and that he was the owner of the farm in dispute. That the late Mwaya bought the said farm from an unnamed soldier but she was once the owner of that farm and she was the one who sold the same to the soldier who later sold it to the late Mwaya. She said that she don't know George Masanja (1st 7 appellant) who claims to own the said farm. That the farm does not belong to George Masanja as he claims. In cross examination she said that when Mwaya died, the farm was given to his daughter, the applicant. In his defence, Said Salim Aboud by then 1st respondent as SU1, testified that he bought the disputed farm from George Masanja (as 2nd respondent). He produced a sale agreement which was admitted as exhibit DI. That in 2022, he received call from the Street Chairman of Mwasonga informing him that the Company which was assessing the value of the farm in the area intended for mining project for compensation was coming to the farm in dispute for assessment. Then he went to see the valuers but only to learn that Aneth Mwaya was claiming that the farm is her property. That the dispute was set before the Ward Tribunal but the amicable settlement failed hence the matter was filed before the trial Tribunal. He said that his area is measured at four (4) acres. SU3 was George Masanja (who is the 2nd appellant). He said that he was the owner of the disputed farm which he sold it to Said Abood. That he was allocated the said farm by the Village Government in 2004 and that the farm measured four (4) acres. He produced a letter/ form of allocation of the land dated 05/02/2004. He said further that he sold the ' i P disputed farm to the 1st appellant in November, 2021. J 77 7. 8 SU4 was Juma Kitunguu Maganga who said that he was a member of the Village Government and that George Masanja came in 2004 and asked to be joined as a Villager and after a village meeting, George Masanja was allocated a farm. He identified exhibit D4 which is a letter/form which was issued to George Masanja to accept his request of joining the village and being allocated the land in the village. In cross examination, he said that George was allocated the disputed farm in 2004. After hearing the evidence in court, the trial Tribunal visited the locus in quo with presence of advocates of both parties but the applicant and the 2nd respondents were not present in person. The applicant was represented by her witness SM2 Scolastica who identified the borders of the farm in dispute, while the 1st respondent also identified the borders of the said farm. The Tribunal observed that the parties agreed on the north, east and south borders but they differed on the east border. The Tribunal observed that there was no any development on the farm, it was empty. Having gone through the evidence, I will now determine the grounds of appeal basing on the above evidence. In proving her ownership, the respondent produced exhibit Pl which shows that she was given the disputed farm by way of inheritance from the family of Stanley Henry Mwaya. However, none from the people who 9 signed as the family of Stanley Mwaya came to testify in the Tribunal to support that claim. The form of handing over (Hati ya Makabidhiano) have a picture of Aneth Mwaya as receiver and Josephine Nyindo as the giver. But Josephine Nyindo did not came in Tribunal to testify about the legality of handing over of the said farm. It was important for any of the purported family of the late Stanley Mwaya particularly those who signed in exhibit Pl to testify in order to prove first, whether they were the administrators of the estate of the late Stanley Mwaya hence mandated to distribute his estate, second, whether the late Stanley Mwaya was the lawful owner of the disputed farm since no document of his ownership of the land was ever produced in court. I find the evidence of the witness of the respondent one Scolatica Shabani (SM2) wanting and unsupported. She said that she was once the owner of the disputed farm and she sold it to "Mwanajeshi" and the "Mwanajeshi" later sold it to the late Stanley Mwaya. However, all these were mere words of mouth from the said witness with no any supportive evidence. The witness could not even name the said "Mwanajeshi" who purportedly sold the farm to the late Stanley Mwaya. Another evidence which gives doubt to the truth of the respondent's evidence is that the respondent while testifying as SMI she stated that 10 when she inherited the disputed farm in 2013, she developed it by planting mango trees, cashew trees, guava trees and other crops. That in 2021, while she was on leave, she visited her farm and found her trees and other crops growing well. However, on 31/5/2023 when the Tribunal visited the farm, it observed that there was nothing on the farm, no any crops, no any developments and that the farm was empty. This is surprising considering the evidence of the respondent that the farm was well developed and flourishing with different long term fruit trees in 2021 but suddenly in 2023 there was no single tree. The evidence to prove the ownership of the respondent over the disputed farm was the handing over form which does not prove the ownership of the late Stanley Mwaya, let alone the respondent. On the side of the appellants, the 1st appellant proved the ownership of the disputed land by the allocation form from Mwasonga Village Government dated 05/02/2004 admitted as exhibit D4. It shows that the 1st respondent was allocated the land measured four (4) acres. Among the people who witnessed the grant of the said land was Juma Kitunguu who also came to testify in court as SU4. He said that he was present when the 1st appellant was allocated a farm, mw I L ii By the Tribunal's visit on the disputed farm it is clear that despite the slight difference by the disputing parties about the east border of the disputed farm, the farm which is claimed by the respondent to be her lawful property by inheritance, is the same which the 2nd appellant claimed to belong to him by being granted by the Village Government. The issue here which was framed and determined during trial was who is the lawful owner of the disputed land? The trial Chairperson found that the respondent is the lawful owner, but having analysed the available evidence, I differ with that finding and hold that the 2nd appellant George Masanja is the lawful owner of the disputed farm and he lawfully sold it to the 1st appellant. It is my view that the trial Chairperson erred in law and facts when she relied on the opinion of the assessors which contained facts that were outside the evidence which were adduced by parties to the dispute during the hearing. The evidence of the respondent who was the applicant was from the applicant herself as SMI and her witness SM2. The exhibits tendered were two i.e. exhibits Pl which was the form of handing over the disputed farm from the family of Stanley Mwaya to the applicant. Exhibit P2 was the letter/form from the Ward Tribunal to the trial Tribunal informing of the failure of amicable settlement/mediation between the parties. L 12 None of these exhibits showed where the late Stanley Mwaya got the disputed farm and the purported sale agreement between Jafet Mornes and Stanley Mwaya was never tendered in court hence was not part of evidence to be considered in court. Also there was no evidence that Josephine Nyindo was the administrator of the estate of the late Stanley Mwaya. In exhibit Pl,Josephine Nyindo is addressed as "mtoa shamba k.n.y familia ya Stanley Mwaya". Reading the opinion which was given by the assessors Zahara Kayagwa and Tumaini Swai and which was relied upon by the trial Chairperson, I have failed to see where did the assessors got the facts which were completely different from even the evidence adduced by the applicant herself. I agree with the submissions from the counsel for the appellants that the assessors turned themselves into the witnesses of the applicant and it was fatal for the trial Chairperson to rely and act upon their evidence. Even if there could have been sale agreement between the late Stanley Mwaya and one Jafet Mornes which was claimed to be entered in 2009, then the agreement could have been void ab initio as the vendor could have no title to pass to the purchaser since the 2nd respondent have established to have been granted the same disputed land by Mwasonga 13 Village Government since 2004, being almost five years before the late Stanley was claimed to have purchased the same property from "mwanajeshi". For those reasons, I find the 1st and 3rd grounds of appeal to have merit. On the 2nd ground, I again agree with the counsel for the appellants submission that the trial Tribunal erred to agree that the land in dispute was handed over to the respondent Josephine Nyindo without satisfying itself on whether Josephine or any of the so called the family of Stanley Mwaya were appointed the administrators of the estate of the late Stanley Mwaya hence they had mandate to distribute the deceased land. There was no evidence to show that the said Josephine was administrator. As said earlier, in exhibit Pl she was addressed as "mtoa shamba". I also find this ground to have merit. On the 4th ground, it was argued by the counsel for the appellants that there was differences on the specification of the land dispute. However, I am of the view that the trial Tribunal found the difference to be slight as the disputing parties agreed on all borders except the east border. This proves that the disputed land was the same and there was no risk that the parties were claiming different pieces of land. Since the 14 trial Tribunal visited the locus in quo, it was better positioned to assess this evidence, and this first appellate court cannot in anyway fault the findings of the trial Tribunal on the evidence of the locus in quo. I find this ground to have no merit. In the 5th ground of appeal, the appellants were dissatisfied with the assessors when they gave opinion on the evidence which did not form part of the evidence adduced in court. I have already determined this part of evidence and found that the trial Chairperson erred when she relied on those opinions. I will also determine the 7th ground which relates to the 5th ground about the Tribunal's act of relying on the document which was never tendered in court to form part of evidence. This is shown at page 8 of the impugned judgement where the trial Chairperson relied on the sale agreement between Jafet Mornes and the late Stanley Mwaya which was attached to the Application (plaint) but was never produced and admitted in court as exhibit. The Chaiperson stated thus; "Nne, ipo nakala ya mkataba wa mauziano kati ya Jafet Mornes na marehemu Stanley Mwaya ya tarehe 07/06/20009 Hiyoambatanishwa na hati ya maombi, isipokua haijatolewa kama kielelezo barazani, na ukiisoma jina la Skola Shabani-SM2 Iipo." 15 Here the trial Chairperson admits that the document despite being attached, was never produced in court and was not admitted as part of evidence. I understand that as per Regulation 10 of the Land Disputes Court (the District Land and Housing Tribunal) Regulations, 2003, the Tribunal may receive and admit any document at any stage and it is not bound by the procedures of the Civil Procedure Code, Cap 33 R.E 2019. However, there was no evidence that the trial Chairperson required the applicant to produce the said document. Also the Regulations does not provide if the Tribunal can rely on the document by merely being attached to the pleadings. I find the 5th and 7th grounds to have merit. On the 6th ground, the appellants were dissatisfied by the trial Chairperson's assessment of the demeanour of the witness SM2. They argue that the trial Chairperson could have relied on the proof of facts alleged instead of relying on the demeanour of the witness. However, I find this not to be fatal as the trial Chairperson was presiding hence it was among her obligations to assess the demeanours of the witnesses before her. What was to be done by the trial Chairperson was also to assess the evidence which was adduced and determine it along with the witnesses' demeanours. I find this ground to have no merit. , 16 In summing up, I find the 2nd appellant to be once the lawful owner of the disputed farm basing on the evidence which he managed to establish on the balance of probability. Being the lawful owner, the 2nd respondent was free to dispose of the said farm lawfully to anyone which he did by selling the same to the 1st respondent as it was evidenced by the sale agreement admitted as exhibit DI. For the foregoing reasons, I allow this appeal, quash and set aside the Judgement and Decree of the trial Tribunal. The appeal is allowed with costs. Right of further appeal is explained. It is so ordered. MSAFIRI JUDGE 19/12/2023 17