selemani hamisi huseni vs hassani mohamed duwe 2017 tzhc 2090 23 june 2017

IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA MISC. LAND APPEAL NO. 24 OF 2016 (Appeal from the District Land and Housing Tribunal of Kondoa Land Appeal No. 63 of 201 Arising from Land Case No. 4 of 2014, Kikore Ward Tribunal) SELEMANI HAMISI HUSENI.............................. APPELLANT VERSUS HASSANI MOHAMED DUWE RESPONDENT JUDG EM ENT Date of JUDGEMENT- 23RD/06/2017. Mansoor, J: Before Kikore Ward Tribunal (the ward tribunal) the appellant, Selemani Hamisi Huseni sued Hassan Mohamed Duwe for trespass into a piece of land measuring 42(forty two) acres. He said before he had bought twenty acres from his neighbor (not named) had twenty two which on 14th august,2010 was allocated by Hurui village council. He brought Umuri Simao, Adam Omary Ntuko, Mohamedi Mpangi, Hamisi Juma Selemu and Iddi Juma Selemani who testified in his favour .Umuri Simao testified that in 2014 the appellant told them that his land had been encroached by the respondent. Adam Omary Ntuko told the ward tribunal that the appellant came into occupation of the land in dispute after being allocated by hurui village council and that he was informed of the alleged trespass by the appellant. Mohamedi mpangi’s version was that the appellant had first bought about 15 acres from one Juma Selemani Hamisi but due to a misunderstanding on the disputed land as between him and the latter after certain arrangement with the village council he was allocated about 22 acres in an effort to resolve the problem. A document evidencing the village council allocating the said 22 acres was tendered in evidence before the ward tribunal. This witness said the appellant is bordered with Gejee and Adam Omary (on the south). Iddi Juma Selemani, a member of village council confirmed that the appellant was allocated the said 22 acres by the village council. On the other hand, the respondent declined to have trespassed. He said is the rightful owner of the land in dispute as he came into possession of the same since 2000. However, in 2002 other people he did not know claimed ownership thereof. It is at this juncture he was deprived of his right of quiet possession of the land in dispute. Following the incident he had to report the matter to the village government against the ones who purported to claim ownership of the Suit land and, he testified that it is a pity that some members of the village council who had allocated land to him claimed before the ward tribunal not to know him irrespective of the fact that they were the ones who allocated land to him. The respondent testified further that he has documentary evidence which prove his ownership over the disputed land and tendered the same in evidence before the ward tribunal. Apart from other proof of ownership the respondent tendered in evidence a contract evidencing sale of a five acre piece of land to one Marry Fidelis Lymo. When the ward tribunal questioned on the possibility of bringing the ones who had witnessed the documents evidencing his ownership over the disputed land he said he would make it happen but did not. Likewise, when he was required to mention a few neighbors he borders with in so far as the land in dispute is concerned he happened not to know any. Given the evidence before it, the ward tribunal found for the appellant. According to the ward tribunal the documentary evidence as to ownership of the land in dispute did not do the needful in as much as the respondent failed to bring the witnesses to back up his version of story that they witnessed the documents in question to clear the doubt or rather cast a possibility that the same may have been forged. Also the respondent failure to name few individuals he borders with at the disputed land made his version of story unreliable. Dissatisfied with the ward tribunal’s finding the respondent appealed to the District Land and Housing Tribunal of Kondoa (Land Appeal No.63 of 2014)(the district tribunal).He filed four grounds of appeal in his memorandum of appeal which in substance has two complaints. One, the appellant did not tender documentary evidence to prove ownership of the disputed land and thus the ward tribunal erred in law and fact in deciding in his favour and (2) the ward tribunal erred in law and fact in deciding in favour of the appellant when it was not properly constituted. It was the finding of the district tribunal that the respondent has with documentary evidence which were tendered before the ward tribunal proved to be the rightful owner of the suit land .The district tribunal observed that the appellant’s claim that he had bought the said 15 acres from Hamisi J. Selemani was rather a contradiction more so because it was later discovered that the said Hamisi Selemani is not even the true owner of the disputed land in which case the village council found it incumbent to compensate the appellant by allocating to him 22 acres. The district court decided in favour of the respondent. Aggrieved, the appellant appealed to this court. He has put forward three grounds of objection. One, the district tribunal erred in law and fact in holding that the respondent is the lawful owner of the land in dispute by placing its reliance on a written letter to that effect and thereby disregarding the provisions of the Land act[ Cap 114 R.E 2002 ] (the act) .Two, the district Tribunal erred in law and fact by placing its reliance on respondent’s documentary evidence to prove his ownership over the disputed land when in fact the ward tribunal doubted the authenticity thereof and three, the district tribunal erred in law and fact in holding that the appellant was compensated the other 22 acres after he had bought a piece of land from the seller who was not the owner of the same. When the matter was scheduled for mention on several occasions the respondent did not appear. A substituted service through publication was proposed and effected as the respondent’s whereabouts was unknown and yet proved futile. The respondent was a no show person. The matter was scheduled to be heard exparte. When the matter came on for hearing on 5th June, 2017 the appellant’s learned advocate, Mr. Ngongi prayed to argue the same by way of written submission. This court granted the prayer. Submitting in elaboration of appeal the appellant contends that the records of the ward tribunal show that the respondent claimed to have been allocated about 180 hectares (one hundred and eighty hectares) through a letter dated 14/08/2010 when in fact the provision of regulation 76(2) of the village Land Regulations, 2001 (the regulations) requires consent of the district council to approve such an allocation. I find it incumbent to correct right away that as per the receipt evidencing payment of certain charges in respect of the disputed plot and not the said letter, the respondent happens to have been allocated 180 acres and again not 180 hectares as the appellant submitted. The provision of regulation 76(2) of the regulations cited by the appellant provides as follows. “Where an application is made to the village council for an am ount o f land whether by way o f a custom ary right o f occupancy or by way o f a derivative right or consent to the grant o f a derivative right which is between twenty - one and fifty hectares in extent,the village council shall forward that application to the district council having jurisdiction in the district where the village is situate together with its recom m endation on that application and shall not grant that application unless and until the district council shall signify in writing to the village council that it consents to that application ” As the procedure was not followed the allocation of 180 acres to the respondent contravened the cited mandatory provision of the law, he charges. The appellant submitted further that the proceedings before the ward tribunal show that the respondent was unable to bring neighbours whom he borders with as witnesses in respect of the disputed land but failed. The failure in question entails that the ward tribunal was justified not to believe his version of story and the district tribunal ought not to place reliance on his testimony. I have gone through the evidence before the ward tribunal and the decision of the district tribunal and gather that the appellant's case before the ward tribunal was stronger than that of the respondent for the reasons that will be apparent shortly. The ward tribunal visited the locus in quo along with its members in which case the appellant and respondent were the ones presumably, identifying their respective pieces of land. At this juncture the ward tribunal had the advantage of observing what was told in court by seeing the land in dispute. Also besides the said receipt, the documentary evidence which the district tribunal relied on as being the conclusive evidence that the respondent is the rightful owner of the plot in dispute do not suggest that the land measures 180 acres .But, a certificate evidencing confirmation of ownership over the disputed land show that he was allocated a piece of land measuring about 1140 paces which is equal to only 16 or so acres. In the circumstances as this no one can say with certitude that the respondent was truly allocated the disputed land with the village council given the said discrepancy in evidence. Indeed, not in the circumstances as this where the respondent did not summon member(s) of village council whom he claimed had witnessed the documents to testify in his favour. Another misgiving is on the documentary evidence which the DLHT regarded as being the conclusive evidence that the respondent is the rightful owner of the plot in dispute does not suggest that the land measures 180 acres .But, a certificate evidencing confirmation of ownership over the disputed land show that he was allocated a piece of land measuring about 1140 paces which is equal to only 16 or so acres. In the circumstances as this no one can say with certitude that the respondent was truly allocated the disputed land by the village council given the said discrepancy in evidence. Indeed, not in the circumstances as this where the respondent did not summon member(s) of village council whom he claimed had witnessed the documents to testify in his favour. I do not accede to the appellant’s invitation that the fact that the receipt evidencing ownership of the Suitland implies that the respondent was allocated 180 acres as shown therein entails that he was allocated the same in contravention of the provision of regulation 76(2) of the regulations. Whereas I agree with the appellant that the respondent’s testimony on the number of acres he owns has not been so far inconsistent for on one occasion said he was allocated 42 acres and on the other said was allocated about 100 acres, by no means is caught up with regulation 76(2) of the regulations. Regulation 76(2) of the regulations does not permit allocation of land by village council by way of customary right of occupancy. As far as I could gather from the testimonies of various witnesses herein and the documentary evidence tendered in evidence the respondent’s allocation of land cannot be said to qualify and be termed as ‘customary right of occupancy'. Customary right of occupancy has been defined under section 2 of the act in the following words: “custom ary right o f occupancy” means right of occupancy created by means o f the issuing of a certificate o f custom ary right o f occupancy under section 27 o f this Act and includes deem ed right o f occupancy ” Section 25(1) (2) (a) of the act requires a certificate of customary right of occupancy to be in a prescribed form. My understanding of the stance of the law above is that the requirement set under regulation 76(1) and (2) only binds the holder of a certificate of customary right of occupancy. As there is no proof so far that the respondent has a certificate of title, one that is in a prescribed form, regulation 76(1) and (2) cannot apply in the circumstances. If anything, the respondent has only hand written documents claiming to substantiate that he is a true owner of the suit land. Otherwise, I remain alive to the effect that the respondent failed to prove his ownership to the land in dispute more so because his version of story was not backed up by any witness before the ward tribunal even those one would have expected to testify in his favour. For example the respondent was expected to summon the village council members who according to him, had witnessed the documents he referred as evidence of ownership over the suit land. Equally the respondent was expected to summon the said Dukuma Alos, a person he claimed to have permitted to occupy the suit land on temporary basis (caretaker). Based on the above reasoning, this appeal has merits, and it is hereby allowed, with no orders as to costs. DATED at DODOMA this 23rd day of JUNE, 2017