samsoni ndeshau vs deus willium kimati 2021 tzhclandd 6689 27 august 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 38 OF 2020 (Appealfrom the decision the District Land and Housing Tribunal ofKInondonIat Mwananyamala In Land Appeal No.33 of2019 before S.H WAMBILI, Chairperson dated 10/2.2020, Original Land Case No. 8of2019, MbezI Ward Tribunal) SAMSONI NDESHAU APPELLANT VERSUS C DEUS WILIUM KIMATI ......RESPONDENT Last order:28/06/2021 Judgement:27/08/2021 . ■■ . A, 3 U D G M E NT MANGO,J. The Appeal at hand originates from the decision of Mbezi Ward Land Tribunal in Case ,No,8 of "2019 where the Appellant, Deus Wilium Kimati sued the Respbhdent, Samsbni NdesWau. The dispute as presented before the Ward Triburial>,concerns a boundary between a plot belonging to the Appellant and the Respondent. TTie Respondent, who was the Applicant before the tribunal alleges that, the Appellant expanded his building and in so doing, he moved his wall beyond the boundary that existed between the two plots. The Ward Tribunal decided in favour of the Respondent. The Appellant unsuccessful appealed: against the decision of the trial tribunal through Land Appeal No. 33 of 2019 before the District Land and Housing Tribunal for Kinondoni. Aggrieved by the decision of the District Land and Housing Tribunal in Land Appeal No. 33 of 2019) the Appellant preferred this Appeal on the followings grounds: - Q 1. That the Hon. Trial chairman erred in law and facts for failure to evaluate and analyse well evidence which were adduced at the hearing; 2. That the Hon. Trial chairman erred in law and facts for failure to determine 2"'' ground of appeal; 3. That the Hon. Trial chairman erred in law and facts for failure to consider demeanour and credibility of witness. The appeal was argued by way of written submissions. The appeliant and respondent timely presented their written;; submissions. Appellant prosecuted the appeal in person while t% Respondent was represented by Mr. Daudi Mzerijearned advocate. , < In his submission, the Appeliant consolidated first and third grounds of appeal as he considers the same to be interrelated.'The Appeliant alleges that the Trial and the Appellate tribunal erredjn lavy and^fact for failure to evaluate, analyse evidence on record. He al^o, argued,that, the trial tribunal failed to consider X / ^ 'X, \ \ " • / '■ demeanour dnd credibility^^ He submitted that, the Trial tribunaj: failed toxonsider sdie agreement tendered by the Appellant, which shows the size ofihis land .with clear demarcations. He referred this Court to page 6 and 1 of judgeijient, which contains assessors' opinion and the Appellate tribunal decision regarding evidential weight of the Appellant's agreement tendered as a proof of his ownership over the suit land. He argued that the Trial tribunal erred; by holding that he did not tender sale agreement as evidence while he actually tendered the agreement before the Trial Tribunal. He insisted that his agreement indicates the size of the land and clear boundaries. He is of the view that, the Trial and Appellate Tribunal did not consider and evaluate correctly his evidence that is why the two tribunals reached into a wrong decision. e 0 IV' The Appellant submitted also on the Visit to locus in quo conducted by the Trial tribunal. According to his submission, the visit to locus in quo by the Tribunal was not effective because the Tribunal was not led by any evidence. He argued that, if the tribunal could not determine the size of the land via agreements tendered by the Appellant and the Respondent how can the tribunal determine the dispute concerning boundaries of the two plots by a mere visit to the locus in quo. He is of the view that, in its visit to locus in quo the tribunal ought to have been led by the size of the two plots as indicated in the sale agreements tendered by the parties. He refereed this Court to the decision made by my brother, Hon. Mambi J. in the case OF ANORD.ADAI^ VERSUS'REPUBLIG; Criminal Appeal No. 171 of 2019 on cohsequences of fa^ to evaluate of improper evaluation of evidence. In tbepcited qase. Court cited the case of Leonard Mwamashoka Criminal AppeahNo. 226^ 2014 in which the Court held Vn V\ that failure to evaluate of,improper\evaluat|on of evidence inevitably leads to wrong and or biased,concldsion& dr jnfereqees resulting to miscarriage of justice; He challenged the testimony of;,Shomvi Kikwasa, Kalenda Nembwe and Donald for being irreieyantto the fact in issue and full of contradictions. He also attacked the deiTieanour bf^the three .witnesses, and argued that the tribunal rested its decision on the irrelevant testimony from incredible witnesses. He Cited the case, of MAWAZO ANYANDWILE MWAIKWAJA V D.P.P, Criminal Appeal No. 455/2017 CUnreported) as an authority for the Appellate Court's power to determine credibility of a witness by assessing coherence of his testimony and considering how his evidence relate to other pieces of evidence from other witnesses. ■ ■'~i On the 2"^ ground of appeal, the Appellant argued that, the Trial Tribunal erre(^ in law and fact to determine the suit in favour of the respondent withoqt considering the length of uninterrupted occupation of the suit land ,by the: 3 'fl ■ Appellant. He submitted that, the Appellant has been in occupation of suit land without any interruptions for more than 20 years. He is of the view that, the length of the Appellant uninterrupted occupation of the suit land was a sufficient reason to move the Court to rule in his favour. He cited the case of SHABANI VERSUS RAJABU SIMBA (1967) HCD 233 as an authority for his argument that, long period of uninterrupted occupation of the land may move the court to rule in favour of the person who occupied the land in dispute. C\ In his reply submission, Mr Daudi Mzeri Advocate for tho^i^espondent, submitted on the grounds of appeal as consolidated by the:AppeJlant's coun^ On the first and third ground of appeal he argued thit the Trial. tribunaUconsidered evident produced by both parties and analysed it well. Hefadded that, proceedings; before the Tribunal shows that the App^lraht:ijid>not tender the sale agreement: and even if the sale agreement was produced, the Appellant did not testify op the size and boundaries of his Plot . J > On the demeanour of vyitnesses, the Respondents counsel submitted that the trial Court is^better'pbsitioned to determine the same than the Appellate Court, He submitted thaty'ih determinmg demeanour of witnesses via variation in his testirtidny, the entiretestimony of a particular witness need to be considered, and hot selected , portion. The learned counsel cited the case of NELSON GEORGE® MANDELA AND 4 OTHERS VERSUS REPUBLIC, Consolidated Criminal Appeals No. 31, 93 and 94 Court of Appeal of Tanzania, at Mwanza as an authority to support his arguments. He added that, in determining the dispute in this Appeal, the tribunal considered testimonies of witnesses and observations made during visit to locus in quo. During a visit to the land in dispute it was observed that the Appellant extended his building beyond the boundary between his land and that of the Respondent. Thus, the allegations that the tribunal's decision based on contradictory evidence from incredible witnesses is unfoundci On the 2"^ ground of appeal that, the Respondents Counsel argued that the Appellant failed to prove the alleged uninterrupted occupation of the suit iand for more than 20 years, thus, the Triai tribunai did not err to determine the dispute in favour of the Respondent. In substantiating his arguments, he submitted that the dispute between the Appeiiant and the Respondent is on boundaries between their piots and not ownership. It was observed during visit to the land in dispute that, the Appeiiant constructed a wail beyond the boundary that existed between his iand and the Respondent'sland. He submitted further that, the Appeiiant's trespass to the Respondents iand 'is aiso estabiished by the \W \- \ testimony of his witness namely, Kalenda Nembwe^who testifiea to the effect that, the Appellant's house occupied the entire iand belonging to the Appeiianti The Respondent's counsei concluded "his.submission that the two Tribunal's correctly held in favour of the itespondent. ' In his rejoinder the Appeiiant reiteratedN^is submission in chief. ''v "\ \ Having gone through the rival submission of both parties and Court record I can now determine the Appeal, before this Court. Court record indicates that the Appeiiant^produced a sale agreement establishing his ownership over the suit iand.iThe fact that there was documentary evidence tendered by the parties to \ \x Xtv. t- ' this appeal before the Trial tribunal is reflected in page 4 and 5 of the un-typed proceedings of the tribunai. The sale agreement produced by the Appellant is in the record of the Court. It should be noted that tendering evidence before Ward tribunals is not bound by any rules of evidence or procedure applicable to any Court as provided under section 15(1) of the Ward Tribunals Act,[Cap. 206 R. E 2002]. As correctly submitted by the Appeiiant, the sale agreement indicates the size and boundaries of the Appellants land. According to the sale agreement^ the land is bordered by Mzee Kiseie on the Northern part and Eastern part, Mzee Makubi Abdailah Southern part. The name of the owner of a piece of iand bordering the Appellant's land on the Eastern part Is unreadable. On the size of the Appellants land, the sale agreement contains a sketch map Indicating the size of the land to be 30 footsteps North, 28 footsteps South, 24 footsteps East and 25 footsteps West. In such circumstances, I agree with the Appellant that Information contained In his sale agreement would have assisted the tribunals to determine the dispute between the Appellant and the Respondent. The sale agreement Indicates further that, the owner of the land In dispute Is not the Appellant, SamsonI Ndeshau but a person .known as Emmanuel Ndamshall. Court record does not establish theTwo names;to be referring to a single person. In such circumstances, this CourtTonslders the t^ names to be referring to two different persons. Having held so, Tfipd the Respondent to have sued a wrong party as there^^ls hb ,evidence ^ establishing the Appellant'^ ownership over the suit ^ For those reasons,the Appeal Is hereby allowed. Proceedings of the District Land and Housing TribunalV|e^hereby nullified,and Its decision set aside. This Court do hereby employ Its revislojnary powers to nullify proceedings and set aside the decision of the trial tribunal for being preferred against a wrong party. The / V , ":-.v O Respondent may pursue his claims against the person who appears In the salg agreement as the\6wner of the suit land. Given circumstances In this Appeal, I award no costs. Right of Appeal Explained. Z. D. MAN< o JUDGE i-; 27/08/2021 s m 2;