salum hassan vs sultan omar administrator of the estate of habiba mohamed another 2018 tzhclandd 486 10 august 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 113 OF 2017 SALUM HASSAN.......................................... APPELLANT

VERSUS SULTAN OMARI (As administrator of the estate of Habiba Mohamed)................................................. 1st RESPONDENT AULELIA KAKOKI.................................. 2nd RESPONDENT Date o f last Order: 8/6/2018 Date o f Judgment: 10/8/2018

JUDGMENT MGONYA, J. Aggrieved by the decision originating from the District Land and Housing Tribunal for Temeke vide Land Application No. 121 of 2012, the Appellant is appealing against the whole judgment and filed two grounds of Appeal as below:- 1. That the trial Tribunal erred in law and fact by delivering judgement in favor o f the Respondent without taking into consideration that the Appellant is the lawful owner o f the i disputed land measuring 20x20 feet which have been encroached by the 2nd Respondent in the process o f expanding her boundaries; 2. That the trial Tribunal erred in law and fact by entering judgment in favour o f Respondent without considering the original Sale Agreement Wherefore, the Appellant prayed to this Court: a) That appeal be allowed\ b) to quash and set aside the decision of the District Land and Housing Tribunal and its decree, c) to declare the Appellant the lawful owner of the disputed land; and d) any other reliefs that the courtjust deem fit to grant Parties prayed and I granted the prayer to dispose the Appeal by way of written submissions. In order to understand what happened to the parties before this Court, there is a need to adduce a brief historical background of this matter. The Appellant, SALUM HASSAN instituted a suit claiming the ownership of piece of unsurveyed land located at Saku-Chamaz against two Respondents, HABIBA MOHAMED

and AURELIA KAKOKI who contended that the said piece of unserveyed land primarily belonged to them. The Appellant alleged to own the said piece of land by virtue of inheritance from his mother in 2003, and since then he had that suit land without any interruption until 2009 where the 1st Respondent (now deceased) sold the said land to the 2nd Respondent without good tittle; and now occupying the same. From there above Appellant filed an Application before the Temeke District Land and Housing Tribunal praying for the following reliefs: 1. That the Applicant be declared the lawful owner o f the suit land.

2. That the 2nd Respondent be declared a trespasser in the suit land 3. That the Respondents and anybody acting on their behalf be restrained from conducting or transaction on the suit premise; and 4. Costs o f the suit be borne by the Respondents. Before the hearing of the suit, two issues were framed, namely: a. Who is the lawful owner of the disputed land; and b. To what reliefs are parties entitled The Temeke District Land and Housing Tribunal had both parties and came with the decision to dismiss the entire Application costs. In his submission, Appellant merged the 1st and 2nd grounds of Appeal and averred that there was an error during the preparation of Land Application No. 121 of 2012 to the effect that the Appellant inherited the piece of land but the authentic fact was that he bought from one ABDALLAH PUTI. Appellant further submitted that, the piece of land measuring 20 x 20 feet was encroached by 2nd Respondent in the process of expanding her boundaries; the fact which was testified by PW3 who witnessed the Sale Agreement of a piece of Land between 1st and 2nd Respondent of which the land measuring 180 x 80 was sold to the 2nd Respondent. Further the Appellant stated that, the evidence of PW3 was supposed to be considered seriously since PW3 and PW1 were the only witnesses who witnessed the Sale Agreement between the 1st and 2nd Respondent, but the trial Chairman

neglected the same and instead the Chairman admitted the forged Sale Agreement, which was admitted and marked as Exhibit D1 tendered by 2nd Respondent. It is the Appellant observation that failure to consider the evidence of PW3 by the Tribunal Chairman was a gross miscarriage of justice. Appellant further stated that, there was a gross mishandling of evidence by the Trial Tribunal as the trial was flawed, the modes of admitting evidence was bogged with a lot of anomalies to the extent that the Tribunal Chairman admitted some document as Exhibits in which on the face of it was not genuine and without giving the Appellant an opportunity to object or concede. Further, it was averred that the Tribunal Chairman failed to work on its integrity since he did not consider that the Respondent failed to prove the fact in issue as to who had sold the extra piece of land measuring 20 x 20 feet to her; hence, the Tribunal had failed vividly to examine the evidence adduced by the Appellants and his witnesses, but it decided otherwise. The act which the Appellant termed to be unjust. Finally, the Appellant prayed this Court to allow the Appeal and declare him the lawful owner of the disputed piece of land. Responding to the Written Submission by the Appellant, the 2nd Respondent averred that she bought the disputed property in 2007 for two Million Tshs from Habiba Mohamed (now the deceased)

and the Appellant herein witnessed the transaction and later on the Appellant invaded on the said property. Respondent on responding on the ground that there was an error during the preparation of the Land Application No. 121 of 2012, to the effect that the Appellant inherited the land whereas the truth is that he bought the said piece of land from Abdallah Puti, is an afterthought to the whole matter. That, the Appellant in his Application filed at Temeke District Land and Housing Tribunal stated that, he was the lawful owner of the suit by virtue of his inheritance from his mother and later on the Appellant testified that he bought the said piece to one Abdallah Puti. But the Appellant had no evidence whatsoever to prove the ownership of either of the two (be it that of inheritance neither of the Sale Agreement). Hence the Court conclude that the Appellant couldn't justify his ownership over that of the 2nd Respondent who had the Sale Agreement to justify the ownership. Further to that 2nd Respondent averred that, to justify the 2nd Respondent ownership, Appellant herein witnessed the said Agreement. On the 2nd ground of Appeal, the 2nd Respondent submitted that even though there could be such kind of error in the preparation of the Application, this was not the right forum to cure the same. Either, the Applicant never brought that matter to the attention of the trial

Chairman hence the he cannot bring it at this stage of Appeal. 2nd Respondent cemented her point by citing Section 110 of the Evidence Act Cap. 6 [R. E. 2002] which states that he who alleges must prove, where the Appellant failed to prove his ownership over disputed land hence the Judgment was entered in favour of the Respondents herein. Therefore, Respondent submitted that the trial Chairman was correct in dismissing the Application for the Appellant's failure to establish his ownership. He thus prayed the Appeal be dismissed with costs. On the side of the 1st Respondent, who was in line with the 2nd Respondent's submission to the effect that, it was the duty of the Appellant to argue and prove before the trial Tribunal on how he acquired the suit land, either by showing the Sale Agreement or any document that shows on how he inherent, or bought the suit land. Further, the first Respondent averred that it is impossible for the Appellant to have acquired the said land through inheritance and at the same time by acquiring it by buying it. Further to that, the Appellant never produce any evidence to prove his arguments before the trial tribunal as it was his duty to convince the tribunal by way of evidence and witness and not otherwise. On the issue of mishandling of the evidence by the trial Tribunal, the 1st Respondent emphasized that there was no any mishandling of evidence

where the entire evidence produced by both parties were admitted without any anomalies, and were given an opportunity to go through to object or concede. 1st Respondent finally, submitted that the trial Tribunal worked to its integrity and its decision was proper as every evidence brought to the Tribunal was gathered including the evidence by the witnesses of the Appellant who testified against him and made the Respondent's evidence strong that led the Tribunal to its decision. For that reason the 1st Respondent prayed that the Appeal be dismissed with costs for lack of merits. Having gone through the grounds of the Appeal as well the records of the Temeke District Land and Housing Tribunal and the submissions from both parties, this court observed that the main issue herein is based on the ownership of the disputed piece of land. According to the evidence on records, there are two conflicting positions on how the Appellant acquired the piece of land in dispute. On one hand the Appellant claimed to have been bought the piece of land from one Abdallah Puti, and second position is that he inherited the same from his mother. At the first hearing of the Appellant's Application at the trial Tribunal on 6th November, 2012, the Appellant testified that the suit land was handled to him by his mother in 2001. And I quote:- "........I have sued the Respondent for trespass of my land at

Suka Chamazi. It measures 160 feet by 40 feet x 12 feet in front This land was given to me bv my mother. That was in 2001. Our mother gave the iand to eight of us. My other relatives sold their pieces of land but I did not sell mine......." Records of District Land and Housing Tribunal shows that sometime in March, 2015, the Appellant bought the suit land from Abdallah Puti (Ten Cell Leader). When the Appellant was cross examined by the 2nd Respondent, he said and I quote: "I bought the suit land from Abdallah Puti in 2002 or 2005. I did not tender my sale agreement in ward tribunal". Further perusal of the trial Tribunal's records, especially on 11th March, 2015 when the Appellant (by then Applicant) was cross examined by the 1st Respondent, he stated that; and I quote:- "J witnessed the Sale Agreement between Respondents. I was the witness of the 1st Respondent. 1st Respondent sold her land to the 2nd Respondent. The 1st Respondent inherited the land from her late father." Furthermore, the Tribunal questioned the Appellant, and he stated that; I quote: "Abdallah Puti was living at Suka. Bv the t im e I bought the Suit land, Mpoto's family were not involved. 1st Respondent is my elder mother. I filed the case against the Respondents though I witnessed their Sale Agreement" The records further revealed that; PW2- Jafari Hassan, the Appellant's brother when was cross examined by

the 2nd Respondent, he stated that, and I quote "I was not present at the time the Applicant bought the suit land\ Applicant is my young brother. The Applicant never told me if he bought the piece o f land from the family land." The record also shows that, PW2 when the Tribunal asked him some questions, PW2 stated that; I quote:- "I never witnessed Sale Agreement ofApplicant, I was the one who divided the land of Mpoto to the family member but Applicant was not given because he was not entitled but his mother was given. Mzee Puti was ten cell leader. He was not given the piece of land because he was not a family member." 10 Upon perusal of the Tribunal records, it came to my knowledge that the Appellant and the 1st Respondent were relatives that, the 1st Respondent was the Appellant's elder mother. When the case came for defence hearing, (late Habiba Mohamed), DWl-testfied to the effect that the 1st Respondent inherited the suit land from her father Mohamed Mpoto. Later the 1st Respondent sold part of her land to the 2nd Respondent and the remaining part of her share gave the same to her children. More so, upon perusal of the records on 22nd June, 2015, of the original proceedings (hand written) revealed that; PW3 SALUM HASSAN MTARIKA, witness of the Appellant testify to the effect that; the owner of the suit land was the 1st Respondent. In 2007 the 1st Respondent sold land to

the 2nd Respondent and PW3 witness the Sale Agreement. Therefore the Appellant have nothing to claim to the 2nd Respondent's land because it was lawful sold by the lawful owner (the 1st Respondent). Again, on 21/11/2016 the Court record revealed that there was the Sale Agreement dated 3/10/2007 between the 1st Respondent and 2nd Respondent in which PW3 Salum Hassan Mtalika was involved as a second witness on the side of the 1st Respondent. Yet, the Appellant at the Tribunal did not tender the exhibit for Sale Agreement as an Exhibits. ii From the above reasons, I don't have any good reason to allow the grounds of Appeal, due to the fact that the Appellant contradicted himself on how he obtained the said suit land. These two conflicting version lead the trial court to rule on favour of the Respondents. My decision on this point lies/be supported with the case of SALEM AHMED HASSAN ZAIDI V.FAUD HUSSEIN HUMEIDAN [1960] EA . 92., V.P. of the then Court of Appeal for Eastern Africa held that a decision under O.XVII, r.3 is a decision on the merits. He went on to hold thus:- "It is well settled in India that dismissal of a claim under O. XVII, r.3 on account of the plaintiff's default in producing evidence to substantiate his case has the effect as dismissal founded upon evidence, and that the subject matter of such a claim will be resjudicata ... I see no reason to differ from the

Indian decisions on the effect of a decision under O. XVII, Rule 3... that such a judgment must be deemed to be a decision on the merits and must have the same effect as a dismissal upon evidence...." 12 I am of the settled view that this court is not a proper forum to deal with errors occurred on preparation of an Appellant's Application. The Appellant cannot draw attention of this honourable Court on this issue due to the fact that, this court cannot take new arguments which were not dealt or pleaded on the lower Tribunal. As long as the Appellant did not challenge or bring the same to the attention of the lower Tribunal, the Appellant cannot raise it now at the Appeal stage. Therefore, I concede with the arguments by the Respondents on this aspect. The law is very clear that fact/matters which were not pleaded or argued on the trial court, cannot be raised at the appeal stage. See the case of HOTEL TRAVERTINE LIMITED AND TO OTHERS VS. NATION BANK OF COMMERCE LIMITED (2006) TLR133. I am further of the view that, according to the evidence adduced at the trial Tribunal and the submissions in respect of the Appeal before this Court, this Court finds no sufficient reason(s) adduced by the Appellant to disturb the findings and decision of the trial Tribunal. On this see the case of FARIDA & ANOTHER VS. DOMINA KAGARUKI, Civil Appeal No. 136 of 2006 C.A. (Unreported). 13 In the event, the decision of the District Land and Housing Tribunal of Temeke in Land Application No. 121 of 2012 is up held. The appeal is accordingly dismissed with costs. L.E.MGONYA

JUDGE 10/8/2018 COURT: Judgment delivered before Hon. A. Teye, Deputy Registrar in the presence of both parties and Ms. Kitowo RMA on 10th day of August, 2018 in chamber No.

17. L.E.MGONYA

JUDGE 10/8/2018 14