LAND APPEAL NO

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA LAND APPEAL NO. 5078 OF 2024 (Originating from the decision of the District Land and Housing Tribunal for Lindi at Lindi in Land Application No. 17 of2023) SALUM SELEMANI MANGOCHI (As Administrator of Estate of the late SELEMANI MANGOCHI KAMTANDE)..... ....... ....................... ....... APPELLANT VERSUS RUKIA SAID MAKANYAGA.......... .. ....... 1st RESPONDENT FATUMA IBRAHIMU ISSA................. ............2nd RESPONDENT JAMALI IBRAHIMU ISSA.......................................................... 3rd RESPONDENT JUDGMENT 29* November & 19* December2024. DING’OHI, J; The appellant, Salum Selemani Mangochi who stood as an administrator of the Estate of the late Selemani Mangochi Kamtande sued the three respondents listed above in the Land Application No. 17 of 2023 in the District Land and Housing Tribunal for Lindi at Lindi (trial tribunal). The main relief claimed, among others, was for a declaration that the appellant is the Pagelofl5 lawful owner of the land in dispute land and that the respondents are the trespassers to the said land located at Utimbe village within Mtama District Council in Lindi region covering approximately two and a half hectors. The trial tribunal heard evidence from both sides. In the final result, it was decided by declaring the respondents herein the rightful owners of the land in dispute. The decision was grounded on the limitation of time to institute the land matter. According to the judgment of the trial tribunal, the appellant was time-barred to institute the land dispute subject to this appeal over 38 years. That decision was against the expectation of the appellant hence the present appeal on the following grounds; 1. That the trial chairman erred in law and fact by giving the disputed land to the Respondents herein without sufficient proof. 2. That the trial chairman erred in law and fact in the interpretation of the issue of time in respect of this matter. 3, That the trial chairman erred in law and fact for proceeding with the hearing of the matter without compliance with the laws governing hearing of land application. Page 2 of 15 Before going to the merits of this appeal, I would wish to give, in brief, the background of the matter as reflected in the trial tribunal records; It was the appellants case that his late father had owned the suit land since 1972. He continued to own the same up to 1985 when he died. According to the appellant, in 1983, his father pledged the farmland to the 2nd and 3rd respondent's mother, Amina Kabongo. It is alleged later, in the same year, the land was returned to the appellant's father. After his father died, the appellant went to Dar es Salaam in 2017. And, sometime in 2019, the appellant realized that the respondents had invaded the land claiming that it was the property of their mother. To support his case side the appellant brought Hassan Mohamed Mkosa who testified as SM2. In his evidence before the trial tribunal, SM2 expounded that in 1972 when he was young he witnessed the late Selemani Mangochi who is his uncle being given land in dispute by his parents. SM2 told the trial tribunal that when his uncle died in 1985, he was at the age of 23 years. He was entrusted to administer all the properties of his deceased uncle. Later on, he handed over the properties to the children of the deceased in 2003. Page 3 of 15 To disapprove of what the appellant has testified, the respondents who are daughters of the late Amina Kabonga together with the first respondent who calls Amina Kabonga aunt (Mama Mkubwa) respectively disputed the appellants claim. They told the trial tribunal that the land in dispute belonged to the late Amina Kabongo who inherited the same from her mother who in turn got it from her brother named Chemba Ng'ombo. They started cultivating the said land in 1985 to date. And that even after the demise of the late Amina in 2000, they continued to cultivate together with the mother of the 1st respondent until 2021 when she also died. When this matter was called up for the hearing, Mr Rainery Songea, a learned advocate showed up for the appellant, whereas the respondents were unrepresented. The appeal was disposed of by way of written submission. Arguing in favour of the appeal, Mr. Songea for the appellant, in the first place, submitted that this being the first appellate court its duties are well stated in the case of R.D. Pandya vs. Republic [1957] EA 336 that; 'It is a salutary principle of law that a first appeal is in the form of re-hearing where the court is duty bound to re-evaluate the entire evidence on record by reading together and Page 4 of 15 subjecting the same to a critical scrutiny anti if warranted arrive to its own conclusion.' Mr Songea also cited the case of Okeno v. R [1972] EA. 3.2 the Court of Appeal for East Africa which has also spelt out the duty of the first appellate court. Arguing in support Of the first ground of appeal that the learned advocate submitted that the evidence presented by the appellant in the trial tribunal was stronger compared to the evidence of the respondents. According to Mr. Songea, the appellant and his witness (SM2), have testified before the trial tribunal how his late father acquired the suit land in 1972 and occupied the same until he died in 1985. According to Mr Songea, it is provided under section 3 (2) (b) of the Tanzania Evidence Act, that proof in a case of this nature is on the balance of convenience. To bolster his position, he also cited the cases of Hemedi Said! vs. Mohamed Mbilu (1984) TLR 113 and Mr. Mathias Erasto Manga vs. M/s Simon Group (T) Limited (Civil Appeal No. 43 of 2013) [2014] TZCA 281. Mr Songea implored this court to scan the evidence of both parties given before the trial tribunal and finally find the for the appellant. According Page 5 of 15 to Mr. Songea, the appellant herein was entitled to succeed in the trial tribunal as he had strong evidence compared to the respondents herein. His stance was based on his belief that the appellant's evidence was intact as he testified clearly how he acquired the land. According to him the respondents herein did not challenge the appellant's evidence by way of cross- examination. The learned advocate referred this court to the position given in the cases of CSR Company Limited vs. Andrew Masaga ©Andrew Kulwa Masaga (Civil Appeal 53 of 2021) [2022] 7ZHC 11487, Kanaku Kidari vs. Republic (Criminal Appeal 326 of 2021) [2023] TZCA 223, and Nyerere Nyague vs. Republic (Criminal Appeal Case 67 of 2010) [2012] TZCA 103. Mr Songea proceeded that the respondents' evidence leaves a lot of questions to be desired as there are no clear explanations as to how the Respondents obtained the said pieces of land. The learned advocate went on to submit that the Appellant's evidence was heavier compared to the respondents and the appellant complied with sections 110 and 111 of the Tanzania Evidence Act, Cap 6 R.E 2022 as to the standard of proof in civil cases. He referred me to the decision in the case of John Rwoga vs. Salimu Ngozi (Misc. Land Case Appeal 31 of 2017) [2019] TZHC LandD 15. Page 6 of 15 On the second ground of appeal, the learned advocate faulted the trial tribunal for raising and deciding an issue of a time limitation suo moto without involving the parties. According to Mr Songea, the question of time limitation was not among the issues framed to be resolved by the trial tribunal. Mr Songea therefore submitted that the trial tribunal erred in entertaining that issue in this matter because the same was not raised in pleadings and parties were not afforded the right to be heard. Mr. Songea cited the case of Makori Wassaga vs. Mwanakombo and Another [1987] TLR 88, where the Court of Appeal insisted inter allatinat parties are bound by their pleadings. According to the learned advocate the above position has also been highlighted in the cases of Masaka Mussa vs. Rogers Andrew Lumenyela & Others (Civil Appeal No.497 of 2021) [2023] TZCA 17339, Mbeya Rukwa Auto Parts and Transport Limited vs. Jestina George Mwakyoma [2003] T.L.R. 251, Margwe Error & Others vs. Moshi Bahalulu (Civil Appeal No. Ill of 2014) [2015] TZCA 282, Mary Mchome Mbwambo & Amos Mbwambo vs. Mbeya Cement Company Ltd (Civil Appeal No. 161 of 2019) [2022] TZCA 179, and Charles Christopher Humprey Kombe vs. Kinondoni Municipal Council (Civil Appeal No. 81 of 2017) [2020] TZCA 1932. Page 7 of 15 The last ground of appeal is to the effect that the trial chairman erred in law and facts by proceeding with the hearing of the matter without compliance with the laws governing the hearing of land Application. Mr Songea submitted that land disputes have their way compared to normal civil cases. He said land disputes are governed by Land Disputes Courts (District Land and Housing Tribunal) Regulations. According to the learned advocate, regulation 12 of the Land Disputes Courts (District Land and Housing Tribunal) Regulations requires the tribunal to read and explain the contents of the Application to the respondent on which the respondent is obliged to admit or deny the claim, and the same should be recorded as per regulation 12 (3) of the Regulations. Mr Songea contended that after having gone through the entire proceedings, he noticed that the above regulations were not complied with at all. He thus prayed this court to set aside the decision of the trial tribunal and proceed to declare the Appellant herein as the owner of the disputed land with costs. In reply to the first ground of appeal, the respondents have submitted that they are very much aware that in all civil cases, the burden of proof lies on the party bringing the claim as stated by this court in the case of Eunice Page 8 of15 Mashaija Noventh and Edison Noventh Mashaija vs. Ansibert Nkete Land Case Appeal No. 101 of 202, where the Court referred to the case of Barelia Karangirangi vs. Asteria Nyalambwa (Civil Appeal No. 237 of 2015) [2019] TZCA 51. They added that the same position has also been ascertained under section 110 (1) and (2) of the Evidence Act Cap 6 R.E 2022. In refusal to the first ground of appeal, the respondents submitted that the appellant was the one who brought the claim before the trial tribunal. Thus before the respondents were required to prove the ownership of the disputed land, it was the responsibility of the appellant to prove first the ownership of the disputed land. It was the respondents' case that the trial tribunal was right to decide the matter in their favour after the appellant had failed to prove the suit to the required standard. In response to the second ground of appeal, the respondents argued that they acknowledged that during the trial both parties agreed only on the two issues and the issue of time was not among the agreed issues. However, they argued further that as per records the trial tribunal did not base the issue of time limitation to arrive at its decision. They referred this court to page 6 paragraphs 4 and 5 of the typed judgment. Page 9 of 15 Concerning the last ground of appeal, the respondents contended that the failure of the learned tribunal chairman to comply with the mentioned regulation did not occasion any failure of justice to the appellant. They contended that the learned advocate is trying to bring some technicalities in this matter which act is irrelevant. To bolster their position, they cited Article 107 A (2) (e) of the Constitution of the United Republic of Tanzania which insisted the court of law not be tied up with technicalities in the dispense of justice. In rejoinder, the appellant's learned advocate almost reiterated his submissions in chief. He insisted that this appeal has merits, hence it should be allowed. Having read the submissions of both parties and examined the records of this matter the issue for determination is whether the appeal has merits. In the course of determining the merits of this appeal, I shall start with the second ground of appeal where the appellant's advocate claimed that the trial tribunal raised an issue of limitation of time suo moto contrary to what was framed by parties and in so doing the appellant was denied right to be heard. Page 10 of 15 It is the elementary and fundamental principle of the law that the cases must be decided on the issues framed by the parties and not otherwise. It is also a trite law that if the court/tribunal thinks that there is an issue worth consideration under the circumstances of the matter before it should bring it to the attention of the parties for them to express their views oh the same, That is the position of the law which was also emphasized by the Court of Appeal in many cases including but not limited to the case of Wegesa Joseph M. Nyamaisa vs. Chacha Muhogo (Civil Appeal No. 161 of 2016) [2018] TZCA 224, which quoted with approval the decision in the case of EX-b.8356 S/sgt Sylivester S. Nyanda vs. The Inspector General of Police & Another (Civil Appeal No. 64 of 2014). The Court held that; 'There is similarly no controversy that the trial judge did not decide the case on the issues which were framed, but her decision was anchored on an issue she framed suo motu which related to the jurisdiction of the court. On this again, we wish to say that it is an elementary and fundamental principle of determination of disputes between the parties that courts oflaw must limit themselves to the issues raised by the parties in the pleadings as to act otherwise might well result in denying of the parties the right to fair hearing'. Page 11 of 15 From the above position, and since this issue is something that is being complained about by the appellant's advocate, it made me carefully peruse the trial tribunal records and to satisfy myself whether what is being complained about by the appellant's advocate is true. Admittedly, the trial tribunal records revealed that, on the 9th of August 2023, the learned Ghairman of the tribunal and the parties to this appeal framed two issues namely; (a) Nani mmiliki wa eneo la mgogoro (Who is the owner of the land in dispute), and (b) Ni stahiki gani wadaawa wapewe (What reliefs parties are entitled to) I would have expected that even in her judgment the learned chairman of the trial tribunal would focus on those two issues only to decide the fate of the parties. But, this has been different from what I had expected because after going through the judgment of the trial tribunal, especially the fifth page, I have realized that in the course of deciding the fate of the parties, the learned trial chairman has raised an issue of limitation of time to file a land suit suo motto at the time of composing the judgment. Parties were not Page 12 of 15 allowed to be heard on that issue at all. The relevant part in the trial court Judgment is reproduced hereunder; 'Hivyo mieta maombi amepata mirathi ya mzee SELEMANI MANGOCHI baada ya miaka 38 kupita ndipo akafungua mirathi. Na pia yeye anaeleza amegundua wajibu maombi kuwa katika ardhi yenye mgogoro mwaka 2019 wakati wajibu maombi wameshuhudia wamelima ardhi yenye mgogoro tangu mwaka 1975. Na shauri hili pia iiiianza mbeie ya baraza hiii mwaka, 2023 baada ya miaka 38 kupita tangu Seiemani Mangochi kufariki, mieta maombi na ndugu zake waiikaa kimya biia kudai ardhi hiyo. Muda wa kudai ardhi kisheria ni miaka 12 kama isemavyo sheria katika kipengeie cha 22 ya first schedule of the law of Limitation Act, sura ya 89 marejeo ya 2019. Kwa muda wote zaidi ya miaka 38 mieta maombi aiikaa kimya biia kudai haki yake kama kweii anayo, hivyo maombi yake yamepitwa na muda. Kama kweii eneo Hiikuwa ni mall ya marehemu baba yake kwanini mirathi haikufunguiiwa kwa wakati muafaka Hi kugawanya mirathi hiyo.' Page 13 of 15 From the above extract, the question I asked myself was whether the learned trial chairman needed to decide on the issue of the limitation of time to file the instant case without calling the parties to address the matter as it was done. l am of the view that that was improper and against the rule of the fair trial. The appellant was not heard on that issue and thus the complaint is valid. Under the circumstances, I find that the trial tribunal judgment is a nullity. It is hereby quashed arid set aside. That being the situation I will not consider other grounds of appeal as the second ground alone has the effect of disposing of this appeal the way lam about to do. In fine, the appeal is partly allowed to the extent stated above. For the avoidance of doubt, the records shall be remitted to the trial tribunal which shall proceed to compose another judgment, in place of the quashed one, based on the available evidence by the parties. In case the parties and/or trial tribunal finds it necessary to deal with the issue of the jurisdiction of the tribunal in entertaining the matter, parties are to be heard on that first. There will be no order as to costs. DATED at MTWARA this 19th day of December 2024 Page 14 of 15 S.R. DING'OHI JUDGE 19/12/2024 COURT: Judgment delivered this 19th day of December 2024 in the presence Page 15 of 15