sefu kondo ngota and others vs ally athuman kinimbe and others 2021 tzhclandd 851 17 november 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPEAL NO.72 OF 2021 (Arising from the District Land and Housing Tribunal for Mkuranga at Mkuranga in Land Appeal No.41 of 2018 originating from Ward Tribunal for Kisegese dated 9th July, 2018) SEFU KONDO NGOTA............................................... 1st APPELLANT SHABAN SEIFU NGOTA............................................ 2nd APPELLANT ASHA SEIFU NGOTA................................................. 3rd APPELLANT RAMADHANI SEIFU NGOTA...................................... 4th APPELLANT VERSUS ALLY ATHUMANI KIUMBO.................................... 1st RESPONDENT KIBIBI SULTANI KIUMBO ....................................... 2nd RESPONDENT NURDINI OMARY KIUMBO.................................... 3rd RESPONDENT MOHAMED ATHUMANI KIUMBO.......................... 4th RESPONDENT HERI OMARY KIUMBO........................................... 5th RESPONDENT MOHAMED MWINYIMKUU MKILALU.................... 6th RESPONDENT OMARY ATHUMANI KIUMBO................................ 7th RESPONDENT SHABANI OMARI KIUMBO.....................................8th RESPONDENT JUDGMENT Date of Last order: 11.11.2021 Date of Judgment: 17.11.2021 A.Z.MGEYEKWA, J This is a second appeal, it stems from the decision of the Ward Tribunal of Kisegese and arising from the District Land and Housing Tribunal for i Mkuranga in Land Appeal No. 41 of 2018. The material background facts to the dispute are briefly as follows; the respondents lodged their claims at the trial tribunal claiming for land ownership. They claimed that since 2003, Seifu Kondo and his children have trespassed and developed their portion of land. The appellants on their side contended that they have been cultivating the suit land since 2003. Sefu Kondo is the one who requested Tembo Kiumbo for a portion of land and he was told not to cultivate the remaining one acre. The trial tribunal evaluated the evidence on record, visited locus in quo, and reached a conclusion that the appellants to keep the one acre and a two acre portion was placed in the hands of the respondents. Aggrieved, the appellant appealed to the District Land and Housing Tribunal for Mkuranga, at Mkuranga vide Land Appeal No.74 of 2018 among others complaining that the appellants occupied the suit land since 2003 therefore the statutory limitation of time to claim for landownership had lapsed. The District Land and Housing Tribunal upheld the decision of the trial Tribunal and maintained that the respondents are the lawful owner of the suit land. The first appeal irritated the appellants. Thus, they filed an appeal before this court which was registered as Misc. Land Appeal No. 72 of 2021 on three grounds of grievance, namely:- 2 1. That, the Honourable Chairman erred in law and fact for upholding the decision of Kisegese Ward Tribunal without considering time limitation for a suit to recover land. 2. That, the Honourable Chairman erred in law and fact for upholding Kisegese Ward Tribunal decision without considering evidence that was adduced by the Appellants and their witnesses. 3. The, Honourable Chairman erred in law and fact for upholding the decision of Kisegese Ward Tribunal decision that Respondents are the legal owner of the land in dispute without having sufficient evidence in support of that fact. When the matter came up for hearing on 04th October, 2021, the 8th respondent informed this court that the 3rd respondent Ally Sultan Kiumbo has passed away and since he was their relative they opted to proceed with the case without him. The Court acceded to the parties' proposal to have the matter disposed of by way of written submissions. Pursuant thereto, a schedule for filing the submissions was duly conformed to. In his submission, the appellants started with a brief background of the facts which led to the instant appeal which I am not going to reproduce in this appeal. On the first ground, the appellants contended that the trial tribunal erred in law to allow the respondents to institute their claim which 3 was overtaken by event. They claimed that the appellant trespassed the suit land in 2003 and the Law of Limitation provides that a land dispute must be instituted within 12 years, contrary to that the suit stand to be dismissed. The appellants claimed that the respondents did not prove their ownership and did not report their claims at the village council, while one Hassan Simba Madenge proved that Ngota's family was residing in the suit land since operation Vijiji. It was their view that Ngota's family occupied the suit land since 1975 and there was no dispute until 2008. Fortifying their submission, they referred this court to the case of James Gekora Kitigani v Tatu Zegera (unreported), Misc. Land Application No. 29 of 2020. Stressing, they claimed that had the trial tribunal considered the appellants’ witnesses testimonies it could realize that Ngota’s family occupied the suit land first and were not disturbed by the respondents. Insisting, they said that the respondents’ allegations were not proved therefore the same lack legal weight contrary to section 112 of the Evidence Act, Cap.6 [R.E 2019], Submitting on the second ground, the appellants are complaining that the trial tribunal did not consider the testimonies of the appellants' witnesses even though he admitted that the appellants are the ones who developed the suit plot. To support their submission they referred this 4 court to page 5 of the trial tribunal judgment. They lamented that the trial tribunal did not consider the evidence properly as a result he misdirected himself and arrived at a wrong decision by stating that there is clear evidence that the respondents are the lawful owners of the suit landed property. Fortifying their submissions they cited the case of James Christian Basil v NMB Bank PLC & Adili Auction Mart Ltd, Land Appeal No. 179 of 2017 (unreported). Arguing for the third ground, the appellants contended that the trial Chairman reached a conclusion that the respondents are the legal owners of the suit land without having sufficient evidence to support their claims. Insisting, they claimed that the appellate Chairman's findings were wrong that the respondents gave the suit land to the appellant while the appellants' family lived and cultivated the suit land since 2003. It was their view that the respondents' claims are an afterthought. They added that the respondents' witnesses' testimonies were not clear since they did not know when the respondents acquired the suit land. In conclusion, the appellant urged this court to allow the appeal and quash the decisions of both tribunals. Opposing the appeal, on the first ground, the respondents in their submission were brief and focused. They claimed that the Kiumbo’s family occupied the suit land and the appellants’ family trespassed their suit land. 5 They contended that the appellants’ family took advantage when their father Athumani Salehe Kiumbo passed away in 2004 thus they invaded the land in 2010 and not in 2003. It was their view that the issue of limitation of time has no room in this matter. The respondents contended that since 2010 they conducted several meetings with the appellants. On the second and third grounds, that relates to evidence on record. The respondents were straight to the point that the trial tribunal considered the evidence on record and found that the respondents proved that the suit land belongs to them. They strongly contended that the suit land was not allocated to Ngota's family in 1975 during operation Vijiji. Insisting, they submitted that the Chairman considered both sides' evidence. On the strength of the above submissions, the respondents beckoned upon this court to dismiss the appeal for being meritless and upheld the decision of the appellate and trial tribunals. In a short rejoinder, the appellants reiterated his submission in chief. They valiantly contended that the respondents' claims that the appellants invaded the suit land are unfounded. They opposed that the dispute started in 2010 since the same was not proved. It was their view that they have proved that the limitation of time to lodge a claim lapsed. They insisted that the appellants developed the suit landed property before 2004. 6 On the strength of the above submission, he urged this court to consider their prayers and allow the appeal. I have considered the rival arguments by the parties to this appeal. I will combine and address all the grounds of appeal together because they are intertwined. The appellants contended that the Chairman erred in law and fact for upholding the decisions of the tribunals without considering time limitation for a suit to recover land. On the second and third grounds the appellants are complaining that the trial tribunal did not consider the evidence on record. I have revisited the appellant’s grounds of appeal and the record of the appellate tribunal and found that the appellant raised a similar ground on adverse possession at the appellate tribunal claiming that the appellant occupied and used the suit land undisturbed since 2003. I have scrutinized the trial tribunal’s records and noted that both parties in the course of proving their claims did not produce any documentary evidence. In a situation where a party is claiming ownership of land, a party has to prove on the balance of probability that, the suit landed property belongs to him/her. In other words, the claimant must produce cogent evidence against the other parties showing that he/she has better title over the disputed land any other person. One credible evidence in proving ownership of land is documents pertaining to 7 ownership of such land. However, in the present case, neither party produced documentary evidence to prove ownership over the same. From the proceedings of the trial tribunal, I have noted the assertion from the present respondents, who instituted the proceedings before the trial tribunal. They claimed that the suit landed property was acquired in 2003 by one Seifu Kondo Ngota and his children, cultivated and they constructed a house therein. However, in their testimonies, the respondents did not tender and documentary evidence to prove how they acquired the suit land and they admitted that there was no proof from the village council. Moreover, in their written submission, the respondents simply stated that they proved that the suit land belonged to Kiumbo' family. I understand that both parties adduced evidence at the trial tribunal. The respondent's witnesses testified to the effect that the suit land belongs to Kiumbo's family since 1975 and the appellant trespassed the respondent's suit land. When they were asked by the tribunal assessors as to how the appellants acquired the ownership of the suit land, their simple answer was they did not know. While on the other hand, the appellants’ witness testified to the effect that the suit land belongs to Ngota. 8 In my view, it was important for both parties to produce evidence showing how they acquired the suit land. In the absence of such evidence, it is difficult to believe the said landed property was legally acquired by the respondents. Moreover, in the absence of such evidence, it was important for the trial tribunal to draw an adverse inference from such non-production of evidence. The learned counsel for the respondents claimed that the appellant did not occupy the suit land for 12 years without being disturbed. That means they did not acquire the suit land by adverse possession. It is trite law that for a person seeking to acquire title to land by adverse possession had to cumulatively prove certain conditions. In the case of Bhoke Kitang’ita (supra), the Court of Appeal of Tanzania cited with approval the case of Moses v Lovegrove [1952] 2 QB 533 and Hughes v Griffin [1969] 1 All ER 460 it held that: “ On the whole, a person seeking to acquire title to land by adverse possession had to cumulatively prove the following:- (a) That there has been absence of possession by the true owner through abandonment. (b) That the adverse possessor had been in actual possession of the piece of land. 9 (c) That the adverse possessor had no color of right other than his entry and occupation. (d) That the adverse possessor had openly and without the consent of the true owner do acts which were inconsistent with the enjoyment by the true owner of land for purposes for which he intended to use it. (e) That there was a sufficient animus to dispossess and an animo possidendi. (f) That the statutory period, in this case, twelve 12 years had elapsed. (g) That there had been no interruption to the adverse possession throughout the aforesaid statutory period, and (h) That the nature of the property was such that in the light of the foregoing/adverse possession would result. In line with the above authority, in the situation at hand, the evidence reveals that Seifu Kondo Ngota testified to the effect that they cultivated the suit land since 2003. The 1st appellant, Seifu Kondo Ngota said that they requested a piece of land from Tembo Kiumbo for ease of reference I reproduce the first appellant's testimony hereunder:- “ Sisi tulilima eneo hili tangu mwaka 2003. Tulimuomba ndugu yao Tembo Kiumbo.” io The above evidence shows that the appellants asserted that one Tembo Kiumbo gave them the suit land. In my considered view, as long as they requested a piece of land from Tembo Kiumbo, the claim of adverse possession cannot hold. Therefore, the appellants’ claims regarding adverse possession cannot stand. On the other hand, the respondents were required to prove their ownership of the suit land on the balance of probability. In order to determine the rights of the parties at the trial tribunal the respondents (claimants) were required to confirm that Tembo Kiumbo transferred the said land to them, but there is no any evidence of transfer of ownership from Tembo Kiumbo to the respondents, therefore the same means the respondents did not acquire good title over the suit land and therefore they cannot raise their claims of ownership of the property in dispute. The present respondents are the ones who instituted the proceedings before the trial tribunal. In their testimonies, they testified to the effect that since 2003, Seifu Kondo Ngota and his children have acquired their plots and cultivated and constructed a house. However, in their testimonies, the respondents did not tender any documentary evidence to prove their ownership over the suit land. It is my considered view that, the respondents they failed to prove their ownership over the suit land and 11 they admitted that they did not take any action against their alleged trespass. The trial tribunal was required to direct itself to the issue of locus standi, since the respondents failed to prove their interest or ownership of the suit landed plot. Considering that the 1st appellant testified to the effect that Tembo Kiumbo allowed them to cultivate the suit land and Tembo Kiumbo was not a party to the dispute. The respondents’ witnesses testified to the effect that the respondents are the lawful owners of the suit landed property. However, they did not mention whether Tembo Kiumbo was among the said owners. It is not safe for this court to relay on the respondents and their witnesses testimony without connecting the said ownership with one Tembo Kiumbo. I am saying so because it might be the appellants land is quite different from the one which the respondents are claiming for ownership. Thus, in my view, the trial tribunal ought to have dismissed the respondents' claims on the basis that they had no title over the suit land. In my firm view, this kind of effort deployed by the respondents to try to recover the alleged suit land was not in conformity with the law. One of the canon principles of civil justice is for the person who alleges to prove his allegation. The said principles are stipulated under section 110 of the Evidence Act, Cap.6 [R.E 2019] which places the burden of proof on the 12 party making the assertion which that partly desires a Court to believe him and pronounce judgment in his favour. For ease of reference, I reproduce section 110 (1) of the Act, as hereunder:- “110 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of ant fact, it is said that burden of proof lies on that person." Similarly, in the case of East African Road Services Ltd v J. S Davis & Co. Ltd [1965] EA 676 at 677, it was stated that:- " He who makes an allegation must prove it. It is for the plaintiff to make out a prima facie case against the defendant. " Applying the above authorities and provision of law, it is clear that the respondents were required to prove their case at the trial tribunal, in the absence of proof of their ownership, the trial tribunal was required to dismiss the case. In the upshot, I proceed to quash and set aside the judgment, decree, and proceedings of the trial tribunal and the appellate tribunal. The appeal is allowed to the extent stated above without costs. 13 Order accordingly. Dated at Dar es Salaam on 17th November, 2021. A.Z.MGEYEKWA JUDGE 17.11.2021 Judgment delivered on 17th November, 2021 in the presence of the appellants and the respondents. MGEYEKWA JUDGE 17.11.2021 Right to appeal fully explained. 14