samwel maleo vs peter kimaro 2020 tzhc 1780 26 june 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MOSHI DISTRICT REGISTRY

AT MOSHI LAND APPEAL NO. 8 OF 2019 (C/F Application No. 128 of 2016 District Land and Housing Tribunal of Moshi District at Moshi) SAMWEL MALEO.....................................................APPELLANT Versus PETER KIMARO...................................................RESPONDENT 4 hJune, 2019 & 26thJune, 2020

JUDGMENT MKAPA, 3 : This appeal is against the decision of the District Land and Housing Tribunal of Moshi at Moshi (trial tribunal) in respect of Land Application No. 126 of 2016 delivered on 24th April, 2019. Brief background leading to this appeal is to the effect that the appellant was alleged to have trespassed respondent's piece of land measuring 32 x 26 situated at Koboko Village, Sanya Juu within Siha district in Kilimanjaro region (the suit land) and erected a house. The respondent claimed that he inherited the suit land from his father who owned the same since 1950's until his death and was buried at the Suitland. That; the respondent shifted to Dar es Salaam leaving his mother in the suit land and when he returned he found the appellant had already built a Page 1 of 13 residential house. The appellant claimed that he purchased ^ suit land from one Zuhura Kombe way back in the year 1999 anc\ tendered a sale agreement which was admitted as Exhibit Dl. That, after hearing the trial tribunal decided in favour of the respondent. Aggrieved, the appellant filed seven (7) grounds of which two were of the same character thus can be summarized into the following six grounds; 1. That, the trial tribunal Chairman erred in law and fact in determining the suit which was time barred.

2. That, the trial tribunal Chairman erred in law and fact in admitting photocopies of Exhibit PI and P2 contrary to the law.

3. That, the trial tribunal Chairman erred in law and fact in determining the suit without joining the seller as a necessary party.

4. That, the trial tribunal Chairman erred in law and fact in reaching a decision without analysing and evaluating the evidence on balance of probability.

5. That, the trial tribunal Chairman erred in law and fact in reaching a decision without disclosing factual evidence which had transpired at locus in quo.

6. That, the trial tribunal Chairman erred in law and fact in reaching a decision contrary to Regulation 19 (2) of the Page 2 of 13 Land Disputes Court (the district Land and Housing Tribunal) Regulations, 2003. At the hearing, parties consented to argue the appeal by way of written submissions. The appellant was represented by Mr. Elia Kiwia, learned advocate, while the respondent was represented by Ms. Fay Grace Sadallah also learned advocate. Arguing in supporting of the appeal Mr. Kiwia submitted that, it is undisputed the fact that the appellant did purchase the suit land from one Zuhura Kombe way back in the year 1999 through unchallenged exhibit DW1 and witness testimonies. That, if respondent's mother was still occupying the suit land why did she allow the appellant to build a house and continue residing in the suit land from 1999 to 2009. Mr. Kiwia submitted further that, time limit for filing suit for recovery of land is within twelve years as provided for under paragraph 22 of the schedule of the Law of the Limitation Act Cap 89 R.E. 2002 (Law of Limitation Act). It was his further argument that, as per section 3 of the same Act this matter is time barred thus subject to dismissal. Mr. Kiwia went on submitting that Exhibit PI and P2 tendered as public documents by the respondent were wrongly admitted as the same were photocopies contrary to section 85 (1) and 86 Page

3 of 13 of the Evidence Act, Cap 6 R.E. 2002 (Evidence Act), he prayed for the documents to be expunged from the records. It was Mr. Kiwia's view that, it was not the responsibility of the appellant to join Zuhura Kombe or summon her to testify but respondent's duty. To support his argument, he cited the case of Juma B. Kadala V. Laurent Mnkande, HC Tanga, Civil Appeal No. 6 of 1982 [TLR 1983] where it was held that; "(Hi) in a suit for recovery of land to a third party, the buyer should be joined with the seller as a necessary party defendant■non - joinder will be fatal to the proceedings,..." It was Mr. Kiwia's further argument that, the trial tribunal chairman did not discuss, analyze and properly evaluate each party's evidence and specifically the witness testimonies as it was held in the case of Tanzania Breweries Limited V Antony Nyingi, Court of Appeal of Tanzania, Civil Appeal No. 119 of 2014 (TLS Report of 2016) where at page 99 the court had this to say; "(2) In principle, if a court of Law decides to accept or reject a party's argument■it must demonstrate that it has considered the same> and set out the reason for rejecting or accepting it Otherwise; the decision becomes arbitrary one. " Page 4 of 13 Mr. Kiwia also challenged the trial tribunal chairman for raising new issues in his decision without availing parties opportunity to address them hence prejudiced their

right to be heard. That, the suit was not determined based on balance of probabilities as it was tainted with contradictions from the witnesses. Since the trial tribunal chairman neither recorded what had transpired during the visit to locus in quo nor thoroughly analyzed the evidence, Mr. Kiwia prayed for the decision to be quashed. Finally, he submitted that, the trial assessors' opinion was not read out after the defence case was closed, failure of which rendered the judgment a nullity. He finally prayed for the appeal to be allowed with costs. Challenging the grounds of appeal, Ms. Sadallah firstly submitted that, in order to establish time limitation to claim for the recovery of land and adverse possession, the appellant had to prove that he had been on the said suit land uninterrupted for the period of 12 years. That; the appellant trespassed on the suit land in 1999 and it was in 2008 when the respondent started to claim right over the suit land for the first time therefore, he was not time barred. Ms. Sadallah submitted further that, section 85 of Evidence Act is inapplicable when exhibits PI and P2 were tendered as the procedure was the same which was used to admit appellant's Page 5 of 13 exhibits D1 and D2. Ms. Sadallah also argued that the respondent did not initiate for Zuhura Kombe to be joined as necessary party because she was a trespasser to the suit land. On

the issue of analysis of the evidence on record, Ms. Sadallah argued further that the trial tribunal chairman reached a fair decision on balance of probability after he had thoroughly scrutinized the evidence on record and no new issue was raised. To support her argument she cited the case of Anurali Ismail V Regina 1 TLR 370. Finally, Ms. Sadallah submitted that the report on locus in quo supported respondent's claim of ownership of the suit land. Lastly, it was her contention that assessors' opinion were considered and the same reflected in the judgment. She finally prayed for the appeal to be dismissed with costs. In his brief rejoinder, the appellant reiterated his submission in chief and maintained that the appeal be allowed. Having considered both arguments for and against the appeal, and the fact that it is principle of the law that the first appeal is in the form of rehearing, thus, the court has to re-evaluate the entire evidence on record; on this strength I will address each ground of appeal. To begin with the first ground of appeal on whether the suit is time barred, as pointed out earlier on under the Law of Limitation Act, time for recovery of land should not Page 6 of 13 exceed twelve years. However, the same does not count from when a person begins to occupy the land rather when the alleged owner became knowledgeable of the trespass to the land in question. In

the present appeal the appellant testified to have purchased the suit land in 1999, but the respondent reported the matter to the police and Ward Executive Officer vide letters dated 26th September, 2008 and 10th October, 2008 respectively, (marked Exhibit PI) which acknowledged respondent's claims against the appellant on trespass. As rightly submitted by the respondents this marked the beginning of the dispute. It has been established through testimonies that a number of negotiations took place with a view to reaching consensus but in vain, thus led the respondent to lodge his complaints to the trial tribunal in 2016 whose decision is subject to this appeal. Thus, the application was not time barred. Therefore this ground of appeal is dismissed for lack of merit. On the second ground the appellant challenged the admission of Exhibit PI and P2. It is on record that, the respondent who was not a public officer tendered Exhibit PI and P2 therefore sections 85 and 86 of the Law of Evidence Act are inapplicable as the said compliance would have been applicable had the saicLexhibits Page 7 of 13 been tendered by a public officer. This ground of appeal is also baseless and I proceed to dismiss it. Turning to the third ground of appeal on non - joinder of the seller of the suit land to the appellant one Zuhura Kombe, the law is settled to the effect that, where

the defendant/respondent is sued and he thinks there is another person responsible, he may sue the third party by instituting third party proceedings. The objective of 3rd party proceedings is to avoid filing of multiple suits in Court and the procedure is limited to a claim of indemnity/compensation and contribution over or against any person not a party to the suit. This is provided for under Order 1 Rule 14 (1) and (2) of the Civil Procedure Code, Cap 33 R.E.2002 as follows; "14. (1) Where in any suit a defendant claims against any person not a party to the suit (hereinafter referred to as "the third party')- a. any contribution or indemnity; or b. any relief dr remedy relating to or connected with the subject matter o f the suit and substantially the same as a relief or remedy claimed by the plaintiff,, The defendant may apply to the court for leave to present to the court a third parfy notice (Emphasis mine) Page 8 of 13 At the trial tribunal the respondent sued the appellant for trespass and since the latter failed to join Zuhura, as a necessary party he cannot shift the blame to the respondent to the effect that it was his duty to join her. The fact that the appellant purchased the disputed land from Zuhura is undisputed, the issue is why did the appellant who raised the issue of Zuhura failed to summon her before the tribunal to establish among others how did she became

the rightful owner of the suit land and the manner the suit land was sold to the Appellant. These would have cleared doubts and prove plaintiffs case. Failure to join Zuhura in my considered view vitiated the trial tribunal proceedings. Therefore this ground of appeal also crumbles. Coming to the fourth ground which relates to analysis of evidence, it is trite principle that, the burden of proving a claim lies upon the claimant in the case at hand the respondent, who was the applicant at the trial tribunal. Respondent (who was the applicant), thus from each party's testimony I believe the trial * chairman made analysis and reached a just decision. In Miller V Minister of Pensions [1937] 2 ALL. ER 372 as quoted with approval in the case of Paulina Samson Ndawavya V Theresia Thomas Madaha, Civil Appeal No. 45 of 2017, CAT at Mwanza (Unreported), Lord Denning had this to say; Page 9 of 13 "If at the end of the case the evidence turns the scale definitely one way or other, the tribunal must decide accordinglybut if the evidence is so evenly balanced that the tribunal is unable to come to determine conclusion one way or other, then the man must be given the benefit of a doubt This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge a burden in a civil case. That degree is well

settled. It must carry a reasonable degree of probability, but not so high as required in a criminal case. I f the evidence is such that the tribunal can say -We think it more probable than not, the burden is discharged, but, if the probabilities are equal, it is not..." In Paulina Samson Ndawavya (supra) Court of Appeal emphasized the fact that; "It is a trite law and indeed elementary that he who alleges has a burden of proof as per section 110 of the Evidence Act, Cap 6 [R.E. 2002]. It is equally elementary that since the dispute was in civil case, the standard of proof was on a balance of probabilities which simply means that the Court will Page 10 of 13 sustain such evidence which is more credible than other on a particular fact to be proved..." In the present appeal there are contradictory evidence on the part of the respondent regarding the exact size of the suit land, as well as the fact that he did not bring evidence on when he was allocated the suitland. The respondent further testified to the effect that, both of his parents were deceased and were buried in the suit land while his witness PW4, testified the opposite to the effect that the parents' cemeteries were located outside the suit land. Indeed the court cannot turn a blind eye on the above mention contradictions. It is plain clear that the trial tribunal did not thoroughly scrutinize the evidence and reached a

just decision, thus, in my view this dispute was not proved at the required balance of probability. I find this ground of Appeal has merit and proceed to allow it. Turning to the sixth ground of appeal, it is plain clear from the record that a visit to locus in quo was scheduled, however what had transpired was not recorded for parties to verify the facts. In Nizar M. H. V Gulamali Fazal Jan Mohamed [1980] TLR 29 the Court of Appeal had this to say when visiting locus in quo; Page 11 of 13 "When a visit to a focus in quo is necessary or appropriate, and as we have said this should only be done in exceptional cases, the court should attend with the parties and their advocated, if any, and with much each witness as may have to testify in that particular matter, and for instance if the size of a room or width of road is the matter, have the room or road measured in the presence of parties, and a note made thereof. When the court re­ assembles in the court room, all such notes should be read out to the parties and their advocates, and comments, amendments or objections called for all if necessary incorporated. Witness then have to give evidence of all those facts, if they are relevant and the court only refers to the notes in order to understand or relate to the evidence in court given by the witness. We trust that this procedure will be adopted by the courts in the future." My

understanding from the above legal position is the fact that the rationale behind visiting a locus in quo is to obtain a clear picture of the dispute in question in reaching a just decision. It is on record that the trial chairman did not record what had transpired at the locus in quo failure of which vitiated the proceeding. This ground has merit and I allow it. Page 12 of 13 Lastly, the appellant complained that assessors' opinion was not read out and my perusal of the Tribunars record has revealed the same is not reflected. However, I have discovered handwritten opinion of the assessors and the same is reflected in the composed judgment. I am alive to the mandatory requirement on procedure for involvement of assessors under Regulation 19 (2) of the Land Disputes Court (the District Land and Housing Tribunal) Regulations, 2003. This ground is meritorious and I allow it. In the light of the foregoing circumstances, I find the appeal has merit and proceed to allow it. Consequently the trial tribunars decision is hereby quashed and set aside with no order as costs. It is so ordered. Dated and delivered at Moshi this 26thday of June, 2020. Page 13 of 13