salehe abdallah seti administrator of estate of the late kazimari mmoto vs flora boko another 2018 tzhclandd 432 6 july 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC LAND APPEAL NO. 74 OF 2016 (From the decision o f the District Land and Housing Tribunal o f Temeke in Land Case Appeal No. 18 o f 2014 and Original Ward Tribunal ofKisarawe II in Ward Complaint No. 430 o f 2013) SALEHE ABDALLAH SETI (Administrator of the Estate of the Late Kazimari Mmoto)................. ........... APPELLANT VERSUS FLORA BOKO.................................................... 1st RESPONDENT JOVINA NGAIZA............................................... 2nd RESPONDENT JUDGMENT Date o f Last Order: 09/05/2018 Date o fJudgment: 06/07/2018 MZUNA, J.: Salehe Abdallah Seti (Administrator of the Estate of the late Kazimari Mmoto) has filed this appeal against Flora Boko and Jovina Ngaiza. The dispute centers on a claim for a piece of land measuring about four acres located at Mwasonga, Shauri Moyo within Kisarawe Ward. Briefly stated the facts are that:- The respondents alleged that they jointly purchased the suit land on 15th June, 2003 from the owner, the late Patrick Nanachi and the agreement was witnessed by his son Mr. Mohamed Ali Nanachi. Sometimes in 2005, after the death of the original seller, his sons namely Abdallah Ally Nanachi, Saidi Ally Nanachi and Mohamed Ally Nanachi resold the land to one Peter Kamuli who then in 2007 sold the suit plot to Salehe Abdallah Seti, the appellant in this appeal. Both the Ward Tribunal and the District Land and Housing Tribunal adjudged in favour of the respondents for the reasons that the purchase by the appellant was done to persons who could not pass title and above all the suit plot had already been sold by the real owner. The appellant felt aggrieved and has filed this appeal on the following grounds: 1. That the District Land and Housing Tribunal erred in law and fact in fact by holding that the trial ward tribunal was properly constituted. 2. That the District Land and Housing Tribunal erred in law and in facts by holding that evidence tendered by the respondents' witnesses was consistent with the one given by the respondents. 3. That the District Land and Housing Tribunal erred in law and facts by holding that right o f appeal was properly explained while not, hence leading to the decision o f the ward Tribunal to lack legal power. He therefore prayed that this Court quashes the decision of the District Land and Housing Tribunal and allow the appeal. The appellant and respondents were represented by Mr. Lutufyo Mvumbagu and Mr. Opiyo the learned advocates respectively. By consent of the parties, hearing proceeded by way of written submissions. In support of the 1st ground of appeal Mr. Lutufyo submitted that the decision of the tribunal is bad in law because the quorum of the Ward Tribunal exceeded the required number provided under Section 11 of the Land Disputes Courts Act. He stated that the quorum of the trial Tribunal at the time of determination of this dispute, the members composed at the sitting of the tribunal were seven contrary to Section 4(3) of the Ward Tribunal Act. He referred this court to the decision of this Court in the cases of Enos Gakuba v. Daud Rugwisa, Misc Land Appeal No. 3 of 2010 (unreported) and Joseph Bishagazi v. Richard Petro, Misc. Land Appeal No. 16 of 2010 (unreported). As for the 2nd ground of appeal Mr. Lutufyo contended that there was inconsistence in the evidence tendered by the respondents and their witnesses. That the witnesses were not sure about measurements of the suit land hence the trial tribunal was at fault to award four acres to the respondents while the same were not proved. In the 3rd ground of appeal, Mr. Lutufyo averred that the right of appeal was not properly explained at the trial Tribunal leaving the appellant in dilemma figuring what remedy should seek. He was of the view that it was important for the tribunal to explain right of appeal to the litigants to seek remedy after the pronunciation of the judgment. He therefore prayed for the appeal to be allowed with costs. In reply to the 1st ground of appeal, Mr. Opiyo averred that the trial Ward Tribunal was properly constituted as per Section 4(1) of the Ward Tribunal Act. He contended that the trial Ward Tribunal sat with seven members, two women and 5 men as required by the law. On the 2nd ground of appeal, he stated that this ground of appeal was dropped by the appellant at the first appellate tribunal hence it can not be determined at this court because it is a new matter. He submitted that the issue of measurements of the suit land or boundaries is irrelevant and not the point of dispute in this matter. That even the appellant did not show the measurements of his land which could have been used as a base for disputing the respondents' evidence of four (4) acres. He therefore contended that the first appellate tribunal was correct to award four acres to the respondents. With regard to the 3rd ground of appeal, Mr. Opiyo argued that the right of appeal was properly explained to the appellant both verbally and in writing and that is why the appellant appealed in time both at the District Land and Housing Tribunal and at this Court. He therefore prayed for the dismissal of the appeal with costs for lack of merits. Having considered the rival submissions of both parties, I will now determine the ground of appeal in seriatim. On the 1st ground of appeal, it is the requirement of the law that the Ward Tribunal must be properly constituted in order to pursue any matter before it. The relevant provision of the law under the Act which is relevant to the issue in dispute is Section 14 (1) of the Land Disputes Courts Act, Cap 216 R.E 2002 which is hereby quoted verbatim for purpose of clarity "14(1) The Tribunal shall in all matters o f mediation consist o f three members at least one o f whom shall be woman." As it is evident from the above Provision that the section talks of mediation and obviously needs no over emphasis that the main objective behind the establishment of Ward Tribunal is to reach settlements by way of mediation. 5 The Ward Tribunal proceeding shows that there was a composition of 7 members excluding the secretary and there were two female members namely Salma Jumanne and Tajo Hassani the fact which was not disputed by the appellant It is my settled view that this composition of the Ward Tribunal in question was properly constituted as they met the requirement of the Law as provided under Section 14 (1) of the Land Disputes Courts Act Cap. 216 R.E 2002 (above quoted). The appellant's argument that the number of members exceeded contrary to the law is misconceived because both Section 11 of the Land Disputes Courts Act Cap 216 R.E 2002, and Section 4 (3) of the Ward Tribunal Act Cap 206 give no restriction of members provided that the minimum and maximum quorum is 4 to 8 members. For emphasis, section 4 (1) (a) and 4 (3) of the said Ward Tribunal Act, reads:- "4 (1) Every Tribunal shall consist of- (a) Not less than four nor more than eight other members elected by the Ward Committee from amongst a list o f names o f persons resident in the ward compiled in the prescribed manner. (b) 2...(NA) (3) The quorum at a sitting o f a Tribunal shall be one half o f the total number o f members." The first ground of appeal therefore fails. The cited cases of Enos Gakuba v. Daud Rugwisa and Joseph Bishagazi v. Richard Petro (supra) which I had the occasion to read them, are distinguishable. On the 2nd ground of appeal, the appellant averred that there was inconsistence in the evidence tendered by the respondents and their witnesses. That the witnesses were not sure about measurements of the suit land hence the trial tribunal was at fault to award four acres to the respondents while the same were not proved. Having perused the court record I have observed that the main issue before the trial Ward Tribunal was based on who was the lawful owner of the disputed land between the appellant and the respondents. There was no issue of measurements pleaded at the trial Tribunal. Actually, it is the appellant who alleged that he owns 12 acres while the sale agreement of 17th April, 2005 shows that Peter Kamili sold to him a shamba which had no specific size. This was among the reasons for the tribunal to hold that such inconsistencies shows his evidence was in fact manufactured. I would hold the same view because the respondent's evidence was very clear that they purchased a piece of land measuring 4 acres. 7 It is in the court record that the respondents purchased the disputed land on 15/06/2003 from the late Patrick Nanachi. They tendered the sale agreement and receipts for fees of joining the Village. Their evidence was supported by the testimonies of their witnesses namely Mohamed Ally Nanachi (Son of the late Patrick Nanachi) and Ezekiel Msomba who confirmed that the original owner of the land in dispute was the late Patrick Nanachi who sold the disputed land to the respondents in 2003. On the other hand the appellant also tendered the sale agreement claiming to have bought the disputed land on 23/04/2009 from one Peter Kamili. He further invited one witness namely Peter Kamuli who testified that he was the one who sold the disputed land to the appellant in 2009, having bought the same on 17/04/2005 from the Sons of the late Patrick Nanachi namely Abdallah Ally Nanachi, Said Ally Nanachi and Mohamed Ally Nanachi. The evidence adduced by the respondents reveal that they were the first persons to purchase the disputed land from the original owner of the disputed land namely Patrick Nanachi who sold it to them on 15/06/2003 when he was still alive. It is my conviction that since the disputed land had been already sold to the respondents by the late Patrick Nananchi, therefore the second sale by 8 Abdallah Ally Nanachi, Said Ally Nanachi and Mohamed Ally Nanachi (sons of the late Patrick Nanachi) had no good title to pass to the appellant because they were not the legal owners of the suit land. I have taken cognizance of the fact that Mohamed Ally Nanachi took part in both sales that is to the one who sold to the appellant and to the respondents being a witness to his late father. This point goes to the credibility of witnesses which I am sure the trial tribunal was better placed to assess his demeanor than this appeal court. It is the principle of the law that no one can give a better title than he himself possesses. In the case of Farah Mohamed v. Fatuma Abdallah [1992] TLR 205 it was held that:- "He who has no legal title to the land can not pass good title over the same to another." This is supported by the Latin maxim: "Nemo dat Quodnon-habet" which means that "No one can transfer a better title than he himself has." This ground of appeal is decided in the respondent's favour. They are legal owners based on the adduced evidence which was correctly evaluated by the appeal Tribunal. I revert to the 3rd ground of appeal, issue of right of appeal, whether it was properly explained at the trial Tribunal. 9 This point should not detain me. As correctly submitted by Mr. Opiyo, the learned counsel for the respondents, the right of appeal was properly explained to the appellant both verbally and in writing and that is why the appellant appealed in time both at the District Land and Housing Tribunal and to this Court. For clarity, the Ward Tribunal judgment read as follows, I quote; "Mwisho wa su/uhu hii, endapo mmoja kati yenu anaona su/uhu hii imemuonea au hakuridhika nayo, basi baraza la kata Unatoa ruhusa muhusika kwenda kufungua kesi baraza la ardhi na nyumba la wilaya Temeke baada ya kusikia su/uhu hii iliyotolewa na baraza." With due respect, the allegation that he was not given the right to appeal while the record shows that he was given such right is only a conjecture. In fact, he exercised it by appealing to the District Land and Housing Tribunal and to this court. I find and hold that this ground of appeal equally fails. In the premises, this court finds no justifiable reasons to disturb the finding of facts of the lower Tribunals. The decision of the District Land and Housing Tribunal of Temeke in Land Case Appeal No. 18 of 2014 is upheld. The appeal is accordingly dismissed with costs. 06/07/2018 Coram: Hon. A. Teye DR For the appellant: present in person For the 1st Respondent: present in person For the 2nd Respondent: absent RMA: Monica COURT: Judgment read and delivered by the Deputy Registrar before the parties on 06/07/2018. R/A explained. A. Teye DEPUTY REGISTRAR 06/07/2018 li