Saku vs Kiselya Appeal final final final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB REGISTRY OF SHINYANGA AT SHINYANGA LAND APPEAL NO. 27520 OF 2024 (Arising from Land Application No 02 of 2024 at Maswa District Land and Housing Tribunal). SAKU KIDANHA.……………….………………………..1ST APPELLANT KULABYA KIDANHA …………………………………...2ND APPELLANT VERSUS MAGILE KISELYA ……….….………………………...1ST RESPONDENT TINALI KISELYA………………………………………2ND RESPONDENT KANUDA KISELYA…………………………………….3RD RESPONDENT NINDWA KISELYA…………………………………….4TH RESPONDENT JUDGMENT 30th January & 14th February , 2025 MASSAM J. The appellants being the administrators of the late Kidanha Chaya before the District Land and Housing Tribunal of Maswa in Land Application No 2 of 2024, sued the respondents, claiming over the ownership of piece of Land about 54 acres located at Mwamita village, Nkoma ward, Itima District, in Simiyu Region which belonged to the late Kidanha Chaya while the respondents claimed that the suit land belonged to them because Kiselya Chaya had three wives and has distributed his plot to each wife and the respondent’s mothers was the 1 second wife of Kiselya Chaya and she was allocated the suit land and respondents stayed there for 54 years undisturbed. After the full trial the Tribunal declared respondents the lawful owner of the disputed land. Being pained by the decision of the trial tribunal, the appellants chose to appeal to this court based on three grounds that, 1. That, the chairman of the tribunal erred in law and fact for failure to acknowledge that respondents have no right to owned land than the appellant herein after reaching a conclusion on who was the owner of the disputed land. 2. That, the chairman of the tribunal erred in law and facts for failure to find that an invitee/licensee cannot have absolute right to own land basing on the long stay on the disputed land. 3. That, the chairman of tribunal erred in law and facts for failure to analyses, evaluate and determined the evidence adduced by the parties hence miscarriage of justice. When the matter was called for hearing, it was argued by way of oral submissions, the appellant enjoyed a legal service of Mr. Daud Masunga learned advocate whilst respondents appeared in person unrepresented. 2 Mr. Daudi Masunga Advocate argued that the appellant being aggrieved with the decision of the trial tribunal brought three grounds of appeal and prayed to argue 1st and 3rd ground of appeal jointly while second ground will be urged separately. Starting with 1st and 3rd ground of appeal, appellant complained that the trial chairman erred in law and facts as he failed to evaluate and analyze the evidence and cause miscarriage of justice . Also, the trial chairman failed to know that all respondents had no right to own that land as they were invitee. It was submission of Mr Masunga that every case is decided according to the application/or plaint filed to the court and issues framed and if the case is decided out of the issues raised to the court the same will be the huge miscarriage of the justice. He fortifies his argument by referring the case of Omary Rishael Kitomary vs. Kuringe Real Estate Co Ltd., CAT at Moshi, at page no 13 and 14. That case also was supported in the case of Tabora Municipal and three others vs Kasea Kisanji and 39 others CAT Tabora, where it was held that the decision of the court will come from the issues and application or plaint which was brought to the court. See page no 19 and 20. 3 Mr. Masunga argued that at the present case the tribunal records at page no 5 the two issues were raised. First if the disputed land was property of Kidanha Chaya or Kiselya Kidanha, and the second was which reliefs are entitled to the parties. Additionally, Mr Masunga said that on the hearingof the case the appellants brought witnesses who proved how Mr. Kidanha Chaya got the suitland see page no 2 of the copy of judgment. Mr Masunga submitted that trial chairman failed to evaluate well the appellants evidence and the disputed issue to remain unsettled but went on and order some reliefs which were not prayed by the parties. Finally, Mr Masunga said that the trial tribunal failed to determine the main issue which was raised that who was the owner of the said disputed land. Coming to the second ground of appeal, the appellant complained that the trial tribunal erred to find out that the invitee has no right to own land regardless the long time which stayed in that land. Mr Masunga said that at page 5 to 18 of trial tribunal the proceedings shows how the father of appellants got the said land. 4 Additionally,Mr Masunga submitted that according to the evidence brought shows that the one who invite the father of respondents to the said land was Kidanha Chaya. Moreover, Mr Masunga argued that the father of respondents was invitee and the issue that they stayed to the suitland for long period of time and the tribunal considered the same was not right. He cemented his argument by referring the case Elius Naibala vs. Ephrem Boniface, Land Appeal no 17/2022 at page no 12,13 and 15. In the said decision was supported with the case of Magoiga Nyankorongo Mriri vs Chacha Moroso, Civil Appeal No 464 of 2020 CAT Musoma where the court said that an invitee cannot own land. Again, Mr Masunga said that this court being the first appellate court has a duty to evaluate and analyze the evidence given and come up with the new decision. Finally, he prayed the appeal be allowed and declare Kidanha Chaya to be lawful owner. On the side of the respondents, the 1st respondent one Magile Kiselya,argued that the suitland does not belong to Kidahna Chaya who passed away on 1997, and their father passed away on 2021 if the same was belonged to him why appellants did not file this case before the death of theirs father. He said that the trial tribunal was right to declare 5 their father as the owner. Finally, he prayed this court to declare the suit land belonged to Kiselya Kidahna and not of Kidahna Chaya. Oh his side 2nd respondent said that the disputed land belonged to their father and he left it to them and they were born there and they are living there todate they are not invitee. Suprisely the appellant raised this dispute after the death of their father, if they were the owner of the said land they could brought this case before the death of their father. He prayed this court to declare them as the owner of the suit land. Again, the 3rd respondent, prayed this court to declare his father to be lawful owner as Kidahna Chaya passed away on 1997 and appellants were silent from then until in 2024. He added that their father passed away on 2021 and its when the appellants decided to file this case. Additionally, the 3rd respondent said that at trial tribunal the 1st appellant said that he was just told that the said land belonged to his father but he never asked his father nor their father on the same. He prayed this court to declare that the said land belonged to Kiselya Kidanha. On his part the 4th respondent, said that they were born there before and after death of their father and their grand father are living in 6 that land,they are not invitee and they never shifted to other place.He prayed this court to support the decision of the Maswa DHLT that the disputed land belonged to Kiselya Kidanha. In the way of rejoinder, Mr Masunga advocate said that there was no objection that Kidanha Chaya died on 1997 and Kiselya Kidahna on 2021 and from 1997 to 2021 there was no dispute between the parties. He added that the records show that after the death of Kiselya it is when this dispute arises after the appellants filed this case. Moreover, Mr Masunga said that respondents claimed that they were given the suit land by their father but they did not say how their father got that land. Finally,he insisted that invitee has no right to own the land regardless the long time which stayed in the land and prayed this court to declare that the said land belonged to Kidanha Chaya and not Kiselya Kidanha. Having scanned the submission filed by both parties, the issue for deliberation is whether the appeal has merit or not. I am aware that the 1st appellate court has power to re-evaluate on the record and drawn its own inference and findings of fact subject, having regard to the fact that the trial court had the advantage of 7 watching and assessing the witness as they gave evidence. See the case of Paulina Samson Ndawavya vs Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 CAT Mwanza, Jamal. A. Tamim vs Felix Mkosamali & The Attorney General, Civil Appeal No.110 of 2012 (unreported) and Martha Wejja vs Attorney General and Another (1982) TLR 35. Also, it is the principle that in civil cases, that the burden of proof lies on the person who alleges anything in his favor. More over the burden of proof envisaged above is on the balance of probabilities. See the case of Anthony Masanga vs. Penina (Mama Mgesi) and Another, Civil Appeal No. 118 of 2014 and Hamza Byarumshengo vs. Fulgencia Manya and 4 Others, Civil Appeal No. 33 of 2017 (both unreported). Therefore, in determining this appeal, I shall be guided by the above principles. Starting with 1st and 3rd ground of appeal, appellant complained that the trial chairman erred in law and facts as he failed to evaluate and analyze the evidence and cause miscarriage of justice . Also he failed to know that all respondents had no right to own that land as they were invitee. 8 It was submission of Mr Masunga that every case is decided according to the application/or plaint filed to the court and issues framed and if the case is decided out of the issues raised to the court the same will be the huge miscarriage of the justice. He added that at the two issues were raised to wit; First if the disputed land was property of Kidanha Chaya or Kiselya Kidanha, and the second was which reliefs are entitled to the parties. However the trial chairman failed to evaluate well the appellants evidence and the disputed issue to remain unsettled but went on and order some reliefs which were not prayed by the parties. I have scanned the submission from both parties and going throught the trial records. Indeed the amended application received by the trial tribunal on 15th February 2024, the appellants prayed before the tribunal to declare the disputed land to be the propery of the late Kidanha Chaya while the respondent in their reply dated on 21/02/2024 prayed the suit land to be the property of the late Kiselya Kidanha. Moreover, the main issue raised by the trial tribunal who was a lawful owner of the disputed land between the late Kidanha Chaya or Kiselya Kidanha, and the second was which reliefs are entitled to the parties. 9 Now,in its finding the trial tribunal among other things declared the respondents to be lawful owner of the disputed land different from what was pleaded in their application. It is also important to note that parties are bound by their pleadings. See, Aspetro Investment Company Limited vs Jawinga Company Limited, Civil Appeal No.8/2015 and Peter Ng'omango vs The Attorney General, Civil Appeal No. 214 of 2011 as well as James Funga Gwagilo vs The Attorney General [2004] TLR 161. From the above analysis I join my hand with submission of Mr. Masunga that the trial tribunal failed to determine the issue raised which led to miscarriage of the justice. See the case of Omary Rishael Kitomary vs. Kuringe Real Estate Co Ltd., CAT at Moshi and Tabora Municipal and three others vs Kasea Kisanji and 39 others CAT Tabora. Apart from that, the original proceedings dated 1/10/2024 shows that there was different opinion of the assessors;one opined that the suit land is the propery of appellants while the second said that the suit land belonged to the respondents.However the trial chairman in its find at page 2 of the judgment said that the assessors opined that the suit land belonged to the respondents because the late Kidanha Chaya had 10 distributed his estate to each wife and repondents lived on land belonged to their grand mother who was the second wife of Kidanha Chaya. Also, when the chairman person adjourned the matter and fixed for hearing assessors’ opinion on 01st October 2024, Hon. Chairman said that; “Baraza – shauri linakuja kwa maoni ya wajumbe wa baraza na wametoa maoni yao, mmoja ameeleza kwamba eneo la mgogoro ni mali ya mdai na wa pili ameelaza kwamba eneo ni mali ya mdawaiwa” In other words, each assessors’ opinion was not reflected in the trial records. With that regard I find it apposite to reproduce the contents of provisions of Section 23 (1) and (2) of the Land Disputes Courts Act, Cap 216 RE 2019. The said section provides that: "23 (1) The District Land and Housing Tribunal established under section 22 shall be composed of one Chairman and not less than two assessors; 11 and (2) The District Land and Housing Tribunal shall be duly constituted when held by a Chairman and two assessors who shall be required to give out their opinion before the Chairman reaches the judgment” In addition, Regulation 19 (1) and (2) of the Regulations impose a duty on a chairperson to require every assessor present at the conclusion of the trial of the suit to give his or her opinion in writing before making his final judgement on the matter. The said Regulations 19 (1) and (2) provides that: - (1) " The Tribunal may, after receiving evidence and submissions under Regulation 14, pronounce judgement on the spot or reserve the judgement to be pronounced later; (2) Notwithstanding sub-regulation (1) the chairman shall, before making his judgement, require every assessor present at the conclusion of hearing to give his opinion in writing and the assessor may give his opinion in Kiswahili" The above provisions have been considered and interpreted by the Court in several occasions. See for instance cases of General Manager Kiwengwa Stand Hotel v. Abdallah Said Mussa, Civil Appeal No. 13 of 2012; Ameir Mbarak and Azania Bank Corp. Ltd v. Edgar 12 Kahwili, Civil Appeal No. 154 of 2015; Tubone Mwambeta v. Mbeya City Council, Civil Appeal No. 287 of 2017; Edina Adam Kibona v. Absolom Swebe (Sheli), Civil Appeal No. 286 of 2017 and Y.S. Chawalla& Co. Ltd v. Dr. Abbas Teherali, Civil Appeal No. 70 of 2017. Specifically in the case of Tubone Mwambeta (supra) in underscoring the need to require every assessor to give his opinion and the same be recorded and be part of the trial proceedings, the Court observed that:- "In view of the settled position of the law, where the trial has been conducted with the aid of the assessors...they must actively and effectively participate in the proceedings so as to make meaningful their role of giving their opinion before the judgment is composed...since Regulation 19(2) of the Regulations requires every assessor present at the trial at the conclusion of the hearing to give his opinion in writing, such opinion must be availed in the presence of the parties so as to enable them to know the nature of the opinion and whether or not such opinion has been considered by the Chairman in the final verdict." 13 In the matter at hand, as I have vividly demonstrated above when the chairperson failed to reflect each assessors’ opinions in the trial proceedings. It is not clear who opined what but also there was different opinion however at end the trial chairman concurred with their opninion. On the strength, I am satisfied that the pointed omissions and irregularities amounted to a fundamental procedural error that have occasioned a miscarriage of justice to the parties and had vitiated the proceedings and entire trial before the Tribunal. I find that the first and third ground of appeal has merit and it is hereby allowed. Coming to the second ground of appeal, the appellant complained that the trial tribunal erred to find out that the invitee has no right to own land . Mr Masunga submitted according to the evidence brought shows that the one who invite the father of respondents to the said land was Kidanha Chaya and the issue that they stayed to the suitland for long period of time and the tribunal considered the same was not right. However,the 1st respondent one Magile Kiselya, said that the trial tribunal was right to declare their father as the owner and prayed this court to declare the suit land belonged to Kiselya Kidahna and not of 14 Kidahna Chaya, while the 2nd respondent said that disputed land belonged to their father, he left it to them and they were born there and they are not invitee and prayed this court to declare them as the owner of the suit land. Moreover, the 3rd respondent said the suitland belonged to their father and prayed this court declare that the said land belonged to Kiselya Kidanha. Again the 4th respondent, said that they were born there before and after death of their father,they are not invitee prayed this court to support the decision of the Maswa DHLT that the disputed land belonged to the Kiselya Kidanha. It is trite law that, reliefs not founded on the pleadings and which are not incidental to the main prayers sought in the plaint should not be awarded. See: Kombo Hamis Hassan v. Paras Keyoulous Angelo, Civil Appeal No. 14 of 2008; Dew Drop Co. Limited v. Ibrahim Simwanza, Civil Appeal No. 224 of 2020 and Abraham Israel Shuma Muro v. National Institute for Medical Research & Another, Civil Appeal No. 68 of 2020 (all unreported) Now, I have considered the submission from both parties and going through the trial records. There is no doubt that the trial tribunal awarded the reliefs which were not pleaded or incidental to by declaring 15 the respondents lawful owner of the disputed land. However even the respondents at this appeal prayed this court to declare that the suitland was propery of the late Kiselya Kidanha while the tribunal declared thev respondent lawful owner. In the premises, I think it not prudent at this juncture to determine whether the respondents were invitee or not or who is lawful owner between the appellants and the respondents under such cirumstances. Consequently,I finds out that this appeal has merits and is hereby allowed. The judgement and decree of the trial tribunal are hereby quashed out and set aside. The matter be remitted to the trial tribunal for retrial by different Hon. Chairman with different set of assessors. The parties being the relative no order as to costs. It is so ordered. DATED at SHINYANGA this 14th February, 2025. R. B. Massam JUDGE 16