salim k mwanga and others vs aboubakar k mwanga and others 2023 tzhc 23069 24 november 2023

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOSHI DISTRICT REGISTRY AT MOSHI LAND APPEAL NO. 14 OF 2023 (Arising from Land Application no. 201 of 2016 of Moshi District Land and Housing Tribunal) SALIM K. MWANGA ……………………………….......... 1ST APPELLANT MWANAHAMISI K. MWANGA ……………………....... 2ND APPELLANT MWANJA K. MWANGA ………………………………...... 3RD APPELLANT KASSIMU K. MWANGA ……………………………........ 4TH APPELLANT HALIMA K. MWANGA …………………………….......... 5TH APPELLANT VERSUS ABOUBAKAR K. MWANGA …………………………... 1ST RESPONDENT ABDALAH K. MWANGA …………………………….... 2ND RESPONDENT MATILDA RANGYA MWANGA …………………….... 3RD RESPONDENT THOMAS ELIKANA MTIMIA ……………………....... 4TH RESPONDENT JUSTO RUMISHAEL KWAYU ……………………...... 5TH RESPONDENT JUDGMENT 1 10/10/2023 & 24/11/2023 SIMFUKWE, J. The appellants herein, 1st and 2nd respondents are blood relatives. Before the District Land and Housing Tribunal of Moshi, the appellants alleged that in 1994 they inherited from their late father Mr. Kombo Mwanga a land located at Lambo Nshara, Northern Machame within Hai district in Kilimanjaro Region. They said that their brother, the 1st respondent herein was trusted by them to take care of the said land. However, the 1st respondent without his relatives’ consent he decided to sell the said land to the 3rd, 4th and 5th respondents. The 1st respondent among other things argued that, he was given the said land by the original owner, his uncle Juma Omari Mwanga. Thus, there was no need of seeking consent from his relatives. He averred that, he sold the said land to the 3rd 4th and 5th respondents because it belonged to him. The 2nd respondent admitted that the land in dispute belonged to them and the 1st respondent sold the said land illegally. The trial tribunal decided in favour of the respondents that the suit land belonged to the 1st respondent and the sale to the 3rd, 4th and 5th respondent 2 was lawful. The appellants were aggrieved, they preferred this appeal under the following grounds of appeal: 1. That the Tribunal grossly erred in law and facts by coming up with new issues and neglects those whose (sic) were raised during the trial. 2. That the Tribunal grossly erred in law and facts in failing to properly evaluate and analyse the evidence adduced at the trial based and ruled on the balance of probabilities. 3. That the Tribunal erred in law and fact as it seems to be prejudiced on evaluating and analysed (sic) the evidence of the parties. 4. That the Tribunal grossly erred in law and fact by failing to declare that the purported sale by 1st Respondent was legal and the disputed land is legally owned by the 3rd, 4th and 5th Respondents. 5. That the Tribunal grossly erred in law and fact in declaring that the Appellants are restricted to enter into disputed land while they are ordered to pay cost of the case to the Respondents. (sic) 3 While supporting the first ground of appeal, the appellants’ advocate, Mr. Ahmed Hamis stated that during the trial the tribunal with the assistant of the parties raised three issues which were: 1. Whether the applicants, now the appellants, 1st and 2nd respondents are tenants in common to the dispute land. 2. Whether the sale engineered by 1st and 2nd respondents has legality before the law and 3. What are the reliefs the parties entitled. That unexpected, the trial tribunal advanced a different issue which was not raised before to the effect that: 1. Ni nani mmiliki halali wa eneo la mgogoro kati ya wadaawa. The appellant believed that this was a new issue which was not raised by the parties. Such new issue was including all the parties to the dispute that’s why the tribunal came with an order that the disputed land was owned by the 3rd, 4th and 5th respondents while it was supposed to answer the issue whether the applicants, the 1st and 2nd respondents are tenants in common to the disputed land and whether the sale which was conducted by the 1st and 2nd 4 respondents was leg al . T he re aft e r , t o conclude on whether the 3rd, 4th and 5th respondents were innocent buyers. The learned counsel for the appellants was of the view that the Tribunal abandoned the two agreed issues and decided the dispute generally based on its new issue. Mr. Ahmed continued to state that, it is settled position of law that, it is fatal for the trial tribunal to raise the issue suo moto and take it as a point of its determination without giving the parties a right to address on the new raised issue. The appellant referred to the case of Benjamin Mungo versus Sisi Auction Mart & General Brokers & Others, Land Appeal No 1 of 2022 (HC) at page 10. He insisted that, it was not regular and fair for the tribunal to raise the new issue to find who was the owner between the parties to the dispute while composing its decision and failed to give a chance to the parties to be heard on that issue. It was submitted further that, in the cited case of Benjamin Mugo, the court at page 11 cited the case of Kumbwandumi Ndemfoo Ndossi v Mtei Bus Service Limited, Civil Appeal No. 257 of 2018, in which the Crourt of Appeal of Tanzania at Arusha held that: "Basically, cases must be decided on the issues or ground on record and if it is desired by the court to raise other 5 new issues either found on the pleading or arising from evidence adduced by witnesses or arguments during the hearing of appeal, those new issues should be placed on record and parties must be given opportunity to be heard by the court." On the 3rd ground of appeal which concerns failure to evaluate and analyse the evidence, the appellants contended that during the hearing all the applicants, their witnesses, the 1st and 2nd respondents testified that the suit land belonged to their late father Kombo Omary Mwanga. Also, the 2nd respondent told the Tribunal that the suit land belonged to all applicants/ appellants, the 1st and 2nd respondents; still the tribunal decided against the appellants and prejudiced them. It was further submitted that during the trial the applicant/ appellants tendered exhibit P1 (Hati ya Kiamba) which shows that the late Kombo Omary Mwanga, sold a portion of land to Exaud Simon in 1991 which shows that the late father was the owner of the suit land hence all appellants, the 1st and 2nd respondents had interest in that land. That, if the evidence was evaluated properly, it could help the tribunal to answer the issue whether the applicants/ appellants, 1st and 2nd respondents are tenants in common to the suit land. Instead of relying on exhibit D1 6 which shows that the 1st respondent inherited the suit land from Juma Omary Mwanga in 1995. The appellants told this court that the said late Juma Omary Mwanga was a young brother of Kombo Omary Juma and uncle to the appellants, 1st and 2nd Respondents. They faulted the trial Tribunal for failure to consider the heavy evidence adduced by the appellants. Based on the arguments above, the Appellants prayed this Court to allow the appeal and quash the decision of the trial Tribunal with costs. In reply, the 1st, 3rd, and 4th respondent through their learned counsel Ms. Janeth submitted to the effect that, it has been alleged that the appellants together with the 1st and 2nd respondents held the suit land in common after inheriting it from their father Kombo Mwanga. They were of the opinion that, the appellants are not sure of the nature of ownership of the suit land since in their submission they said that the disputed land "is said to be tenant in common...". That, there was no any proof produced in trial to establish that the appellants have interest of whatever kind in the said land. The learned counsel referred at page 7 of the judgment of the trial Tribunal where it was stated that the applicants (now the appellants) failed to establish as to how they acquired the disputed land. 7 The learned advocate continued to submit that, during the hearing of the application, the 1st respondent Aboubakar Kombo Mwanga (DW1) clearly explained that he was the lawful owner of the disputed land after the said land was bequeathed to him by Juma Omari Mwanga as per Exhibit D1 which was not objected by the appellants and to date it remained unchallenged. That, the testimony of DW1 was collaborated with the evidence of DW5, Amii Abdi Muro, the ten-cell leader who witnessed when the suit land was given to the 1st respondent. Thereafter, the 1st respondent as the lawful owner sold the disputed land to the 3rd, 4th and 5th respondents. Ms. Janeth asserted that, it was proper for the Tribunal to declare the 3rd, 4th and 5th respondents as lawful owners and innocent buyers of the suit land as they acquired the title from the original owner, Aboubakar Kombo Mwanga. The learned advocate believed that the Tribunal did not occasion miscarriage of justice since no framed issue was abandoned as argued by the appellants. Also, she said that there was no any issue raised suo moto by the Tribunal as alleged by the appellants. Thus, the cited case of Benjamin Mungo (supra) is inapplicable to the present appeal. Responding to the argument that the tribunal delivered its decision by advancing a different issue which was not raised before, the learned 8 advocate replied that the records of the trial Tribunal speak out clearly on the issues which were framed on the first date of hearing. That, the hearing of Application No. 201 of 2016 commenced on 12th June, 2018 before Hon. Wagine Chairperson; whereby both parties and their advocates were present. The Tribunal with the assistance of the parties’ advocates framed the following issues which were agreed by both parties: 1. Who is the lawful owner of the suitland. 2. What reliefs are the parties entitled to. The learned counsel explained that the only difference was that the judgment was written in Kiswahili and the said issues were literally translated into Kiswahili as seen under paragraph 3 of page 6 of the judgment of the Tribunal as follows: “Kabla wadaawa hawajaanza kutoa ushahidi wao, yafuatayo yalikubalika kama mambo yaliyopo kwenye ubishani (issues). 1. Ni nani mmiliki halali wa eneo la mgogoro kati ya wadaawa. 2. Nafuu zipi wadaawa wanastahili.” 9 The tribunal evaluated and analysed evidence from both parties in line with the two issues. The learned counsel was of the view that the trial Tribunal correctly arrived at its decision by declaring that the land in dispute is owned by the 3rd, 4th and 5th respondents after they had purchased it from the 1st respondent. Ms. Janeth informed this court that the issues indicated by the appellants in their submissions were never raised by the trial Tribunal and the same should not be considered in the determination of this appeal. Countering the 3rd ground of appeal on evaluation of evidence, it was Ms. Janeth’s submission that, the appellants failed to establish their ownership over the suit land. That, the Tribunal clearly evaluated and analysed both oral and documentary evidence and properly reached to the conclusion that the 1st respondent was the lawful owner of the land which he sold to the 3rd, 4th and 5th respondents. In respect of Exhibit P1 which was referred by the appellants in their submission, Ms. Janeth elaborated that the exhibit was a sale agreement of a portion of land by Juma Omary Mwanga to Exaud Simon in 1991. The said land is not the same portion of land that was given to DW1- Aboubakar Kombo Mwanga by Kombo Omary Juma. 10 The learned counsel proceeded to argue that the issue of tenancy in common was merely mentioned in the application and was not framed as an issue during the hearing. She emphasized that, there was no evidence of whatever kind to establish that the land in dispute was ever owned jointly among the appellants, 1st and 2nd respondents. Ms. Janeth implored this court to dismiss the appeal with costs as it lacks merit. In his reply to the first ground of appeal, the 2nd respondent urged this court to decide whether the tribunal decided on the framed issues or it departed from the framed issues. In respect of the 3rd ground of appeal, the 2nd respondent informed this court that he was also aggrieved by the decision of the Tribunal as it failed to consider his evidence which was to the effect that the suit land was previously owned by their late father Kombo Omary Mwanga before it was given to his children. That, when the 1st Respondent sold the suit land to the 3rd and 4th Respondents, he was the one who secured the temporary injunction to the village council against the 1st, 3rd and 4th Respondents to stop them from doing anything in the land until the matter was solved within the family. 11 The second respondent submitted further that the suit land belonged to their late father Kombo Omary Mwanga, and it was given to them all and that it was not true that the 1st respondent was given such land by Juma Omary Mwanga because it was never belonged to him as he had his property at Babati. That, the land could not be given to Aboubakar Salim Kombo alone without any participation of even his wife or one of his children and without showing the basic reason for doing so. The second respondent contended further that he agreed with the 1st respondent to borrow some money from the 5th respondent for the purpose of repaying the 3rd and 4th respondents so as to restore the land to their family and had no any intention to sale the said land which belonged to the family without consent of others. That, the 1st respondent deceived him and made him to sign the contract showing that he witnessed the sale of the disputed land while knowing that the contract which he signed was for borrowing some money and not to sale the land. That, even the amount shown in the contract presented to court as evidence, was not the amount collected from the 5th respondent. Although he told the Tribunal such fact, yet it did not consider it. 12 The 2nd respondent prayed this Court to allow the appeal and exclude him from costs. Mr. Faustin Materu for the 5th respondent in reply to the 1st ground of appeal, submitted that the trial tribunal upon agreement with both parties drafted the following issues on 12th June 2018: 1. Who is the rightful owner of the suit property between the applicants and the respondents? 2. To what remedies are the parties entitled to? He quoted the findings of the trial Tribunal from page 7 to 8 of the typed judgment and concluded that the tribunal did not introduce new issues rather it is the applicants' advocate who is trying to introduce new issues into the case. He added that, even the evidence before the tribunal does not prove that the appellants were tenants in common since none of them ever lived in the suit land let alone possessing the same. Thus, the 1st respondent had every right to sell the same to the 3rd, 4th and 5th respondents as per Exhibit D1. That, the 3rd to 5th respondents are innocent buyers since the late mzee Juma Omari Mwanga had given the said land to the 1st respondent since 1995 in the presence of Amir Abdi Muro (SU5) the ten-cell leader of the area at that time and who also 13 witnessed the sale of the same land to the respondents vide exhibits D2 and D3. On the 3rd ground of appeal, the learned advocate submitted that Exhibit P1 (hati ya kihamba) shows that a portion of land was sold to one Exaud Simon in 1991 which is not part of the suit land and the respondents have no dispute with that let alone the fact that Exaud Simon is not a party in this case. He commented that the trial tribunal correctly decided the way it did based on the pleadings, issues and the evidence before it. That, they see no prejudice tainted with that judgment and the appellants have not pointed out any. In their joint rejoinder, the appellants reiterated their submissions in chief. Having summarised the parties’ submissions, I now turn to scrutinize the two grounds of appeal as the rest of the grounds were abandoned. On the first ground of appeal, the Chairman was faulted by the appellants for raising new issues and neglecting issues which were raised at the commencement of the hearing. This argument was disputed by the 1 st, 3rd 4th and 5th respondents who argued that the Chairman did not raise new issues. However, the 2nd respondent left it to court to decide whether the trial tribunal raised a new issue or not. 14 I had time to examine the issues which were framed at the commencement of the hearing vis a vis the issues discussed in the judgment. Upon examining the handwritten proceedings of the trial Tribunal, I noted that before commencement of the hearing, the following issues were raised: (a) Who is the lawful owner of the suit property between the parties. (b) To what reliefs are parties entitled to. In his judgement, the trial Chairman set out to answer the following issues: 1. Ni nani mmiliki halali wa eneo la mgogoro kati ya wadaawa 2. Nafuu zipi wadaawa wanastahili. The above two sets of issues resemble, only that in his judgement, the trial Chairman translated the issues in Kiswahili language without affecting the meaning and content of the English version. I am of considered opinion that the argument by the appellants that the trial Chairman neglected the raised issues is unfounded. As rightly submitted by Ms. Janeth, the appellants in their submission have raised their own new issues which are not existing. 15 Turning to the 3rd ground of appeal, the appellants’ advocate condemned the trial Tribunal for failure to evaluate evidence. That, despite the fact that the applicants testified that the suit land belonged to their late father, still the tribunal proceeded to decide against them. Mr. Ahmed stated that, the applicants tendered Exhibit P1 (hati ya kiamba) to show that their late father sold the land to one Exoud Simon in 1991. The second respondent supported the appellants’ contention. He added that, the Chairman did not consider his evidence which is to the effect that the suit land belonged to their late father. That, he was the one who issued temporary injunction to the buyers. Ms. Janeth contested the above submissions. She argued that, according to exhibit P1 the land which was sold to Exoud Simon is different from the suit land. Also, she said that the appellants’ issue of tenancy in common was not among the issues raised before the trial tribunal. The 5th respondent supported the arguments advanced by Ms. Janeth. My take in respect of the above issue is that the trial Tribunal did not properly evaluate the evidence. This being the first appellate court, it is enjoined to re-evaluate the evidence in case the trial Tribunal failed to discharge such duty. 16 Looking at the judgment by the trial Tribunal, while addressing the first issue as to who is the lawful owner of the suit property between the parties, it had this to say at page 7 of the judgment: “Kwa kuanzia na hoja ya kwanza bishaniwa, na kwa kuzingatia ushahidi uliopo kwenye kumbukumbu waombaji wao walisema kwamba eneo la mgogoro lilikuwa ni mali ya baba yao aitwaye Omari Kombo Mwanga na kwamba wao walirithi eneo hilo tangu mwaka 1993. Kwa upande mwingine mjibu maombi wa kwanza Aboubakari Mwanga yeye alisema Kwamba alilipata eneo hilo la mgogoro kutoka kwa mzee Juma Omari Mwanga mwaka 1995 ushahidi wake uliungwa mkono na SU5 Amii Abdi Muro ambaye wakati Abobakary anapewa eneo hilo yeye alikuwepo na alishuhudia kama balozi wa eneo hilo. Pia Kielelezo D1 kinathibitisha Aboubakari kupewa eneo hilo la mgogoro na mzee Juma Omari Mwanga. Kwa upande mwingine waombaji wameshindwa kuthibitisha madai yao ya namna walivyopata eneo hilo. Hata hivyo kwa ushahidi uliopo Aboubabakry ndiye amekuwa akiishi katika Kijiji cha Nshalla sikuzote Zaidi ya ndugu zake ambao 17 wamekuwa wakiishi Arusha. Baraza hili limeridhika na ushahdi uliotolewa na upande wa wajibu maombi kuwa una nguvu Zaidi ya ule uliotolewa na upande wa waombaji.” The findings of the Chairman herein above are according to the available evidence on the record. Whether the respondents’ evidence was heavier than that of the appellants is the main grievance of the appellants. Thus, the issue is whether the applicants discharged their duty of proving the case on balance of probabilities. In civil cases, the burden of proof lies on the person who alleges. The onus never shifts to the adverse party unless the one who alleges discharge his/her onus. In the case of Ernest Sebastian Mbele vs Sebastian Mbele & Others (Civil Appeal 66 of 2019) [2021] TZCA 168 [TANZLII] at page 8, the Court of Appeal stated that: “The law places a burden of proof upon a person "who desires a court to give judgment" and such a person who asserts...the existence of facts to prove that those facts exist (Section 110 (1) and (2) of the Evidence Act, Cap.6). Such fact is said to be proved when, in civil matters, its existence is established by a preponderance of probability (see section 3 of the Evidence Act, Cap. 6).” 18 In the present matter, the appellant herein being the applicants before the trial tribunal were required to prove on balance of probabilities that the suit land belonged to their late father and that the same was given to them by their late father before his death. According to the available evidence, I hesitate to conclude that the appellants herein managed to prove that their late father was the original owner of the suit land. Apart from merely stating that the said land belonged to their late father, neither the appellants nor the 2nd respondent proved that their late father was the original owner of the suit land. Regarding exhibit P1, the same does not prove the fact that the suit land belonged to the late Kombo Mwanga as it was the sale agreement of the land which is different from the suit land as rightly submitted by Ms. Janeth and the 5th respondent. On the other hand, he 1st respondent managed to prove that the original owner of the disputed land was his uncle (baba mdogo) the late Juma Omari Mwanga. This was supported by the evidence of DW5 Amii Abdi Muro who testified inter alia that: 19 …Kabla ya hapo eneo hilo lilikuwa ni la Mzee Juma Omari Mwanga. Siku 3 kabla mzee Juma alinitaarifu Kwamba ana kikao kwenye eneo lake na kunitaka nifike tarehe 14/08/1995… Baada ya kukutana Mzee Juma alitujulisha kwamba eneo hilo walilokutana ni la kwake. Akatueleza kwamba anataka kumpa eneo hilo mtoto wa kaka yake ambaye ni Abubakari Kombo Mwanga…” Also, the 1st respondent tendered exhibit D1 the document which proved that the said land was given to him by the late Juma Omari Mwanga. By weighing the above evidence, it goes without saying that the 1st respondent managed to prove that the said land belonged to the late Juma Omari Mwanga and not the late Kombo Mwanga. Since the land was given to the 1st respondent as per exhibit D1, he had legal right to sale the same to the 3rd, 4th and 5th respondents. Thus, the sale was lawful as rightly decided by the trial Chairman. I find it prudent to comment albeit briefly in respect of the 2 nd respondent’s assertion. His submission is an afterthought as per the evidence, particularly exhibit D2 the 2nd respondent was among the witnesses to the sale of the said suit and his picture is attached to the 20 sale agreement. Thus, it is awkward for him to claim that the said land belonged to his late father and that he was deceived by the 1 st respondent to sign the said sale agreement. It is on the basis of the above scrutiny of evidence, as the first appellate court, that I find no reason for faulting the decision of the trial Tribunal. Hence, I dismiss this appeal in its entirety with costs. It is so ordered. Dated and delivered at Moshi this 24th day of November 2023. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 24/11/2023 21 22