shabani Mambo scanned

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 14508 OF 2024 (Arising from the Judgment of the District Land and Housing Tribunal for Mkuranga District in Land Application No. 36/2017 delivered on ldh April, 2024) SHABANI SAIDI MAMBO................................................. APPELLANT

VERSUS HAMIS MKUMBUO................................................ 1st RESPONDENT ASHA MNG'AGI..................................................... 2nd RESPONDENT

JUDGMENT 12h November & lJh December 2024 L. HEMED, J. This matter originates from the District Land and Housing Tribunal for Mkuranga in Application No. 36 of 2017. The Appellant herein SHABANI SAID MAMBO alleging to be the lawful owner of the piece of land measuring 21.212 acres located at Nyamwimbe village, Mlanzi ward, Kibiti District, sued HAMISI MKUMBUO and ASHA MNG'AGI, the respondents for trespass to the extent of 12.598 acres. In their amended written statement of defense, the respondents disputed the claims of the herein Appellant. They stated further to be the lawfully owner of the disputed piece of land measuring 12.598 acres having i inherited it from their late mother one Nyamambo. Issues for trial were (a) whether the Appellant (Applicant) was the lawful owner of the disputed land; (b) whether the respondents were trespassers in the suit piece of land, and (c) To what reliefs are the parties entitled. Having scrutinized evidence that was adduced before the trial Tribunal, the learned chairperson found the suit land to belong to the respondents herein. She proceeded to dismiss the entire claims of the Appellant herein without costs. Aggrieved by the said decision, on 19th June 2024, the Appellant knocked the gates of this court to challenge it on the following grounds: - "Z That the trial tribunal erred both in law and fact by failure to properly evaluate the

evidence given by the parties, ii. That, the trial tribunal unfairly decided against the appellant by relying on false evidence about the fixing of the boundaries; and ii. That, the trial tribunal erred in law and fact by failure to understand the nature of the disputes and wrongful awarding the Appellant's land to the respondents." 2 It should be noted that, the 2nd respondent, upon being served with the Memorandum of Appeal, she raised the preliminary objection in Hmine Iids. - "a) That, the land appeal is hopeless bad in law for being time barred against the Respondents." I directed parties to argue both the preliminary objection and the appeal by way of written submissions. In drafting and filing submissions the Appellant was represented by Mr. Ulimboka L. Mwasomola, learned advocate, while the respondents enjoyed the legal service of RCO Advocates. All submissions were filed timely pursuant to the filing schedule directed by the court. In respect to the preliminary objection, the counsel for the respondents submitted that the appeal was filed after more than 62 days contrary to the provisions of section 41(2) of the Land Disputes Courts Act [Cap. 216 R.E 2019]. According to the learned counsel for the respondents, the impugned judgment was delivered on 19th April 2024 and the instant Appeal was presented for filing on 20th June 2024 without the leave of this court. He

ended urging the court to strike out the appeal. 3 In response, the learned advocate of the Appellant was of the view that the impugned judgment was supplied to the appellant on 24th May 2024. He contended that the period of time requisite for obtaining a copy of the decree has to be excluded relying on section 19(2) of the Law of Limitation Act, [Cap. 89 RE. 2019]. In his brief rejoinder, the counsel for the respondents reiterated his submissions in chief. He also insisted that the Appellant did not apply to the trial Tribunal to be supplied with copies of the judgment timely. In his view, the appellant cannot seek refugees to section 19(2) of the Law of Limitation Act (supra) because he showed no effort to obtain copies of judgement and decree. The decision of the Court of Appeal of Tanzania in Dan O' Bambe IKO (by William Daniko as Administrator of the estate) vs Public Service Social Security Fund and Another [2019] T.L.R 205 was cited by the counsel for the Respondent asserting that the Appellant has not accounted for the delay. The question which needs to be addressed is whether the instantaneous appeal is time barred. I am aware that under section 41(2) of the Land Disputes Courts Act [Cap. 216 RE 2019], appeals to the High Court against the decision of the District Land and Housing Tribunal 4 exercising original jurisdiction have to be lodged within forty-five (45)

days after the date of the decision or order. In the instant case, it is very clear that the impugned judgment was delivered on 19th April 2024 and the appeal was presented for filing on 19th June 2024, at least after sixty (60) days. I have gone through the records of the trial Tribunal to find out if the Appellant made any effort to apply to be supplied with copies of the judgement. Indeed, I realized that the Appellant wrote two (2) letters requesting for supply of copies of the impugned judgement and decree. The first letter was written on 6th May 2024 and the second one on 24th May 2024. The records of the trial Tribunal clearly show that the judgment, decree and proceedings were ready on 24th May 2024 as all of them were certified on 24th May 2024. What does the law provide in respect of the time spent in looking for copies of the impugned order or judgment? The answer to the aforesaid question is found under section 19(2) of the Law of Limitation Act (supra) which provides thus: - "In computing the period of limitation prescribed for an appeal, an application for leave to appeal, an application for leave to appeal, or an application for review 5 of judgment, the day on which the judgment complained of was delivered, and the period of time requisite for obtaining a copy of the decree or order appealed from or sought to be reviewed, shall be excluded? [Emphasis added] In

the light of the above provision the time between 19th April 2024 and 24th May 2024 has to be excluded. Having excluded the period of time used in obtaining copies of impugned judgment, decree and proceedings of the trial Tribunal, we find that, the instant appeal was lodged after the lapse of 26 days. This implies that, the appeal was filed timely. The preliminary objection is thus overruled. Back to the merit of the appeal. It was the argument of the counsel for the Appellant that, it was proved during trial that the boundary between the Appellant and the respondents was not the baobab tree as stated in the judgment of the trial Tribunal. He added that, evidence on record shows that the road boundary was created by the ward Tribunal (exhibit D-l). It was insisted that the refusal of the trial Tribunal to accredit evidence adduced by the appellant made the trial Tribunal to reach to the wrongful decision. In his view, the learned counsel for the Appellant stated that the trial Tribunal overlooked strong and concrete 6 evidence of the appellant that would have led into fair and just decision. He fortified his argument citing the decision in Stanslaus Rugaba Kasusura and Another vs Pharas Kabuye [1982] TLR 338 on the effect of failure to evaluate evidence of each witness. The second ground of appeal was that the trial tribunal unfairly decided against the Appellant by relying on

the false evidence about the fixing of the boundaries. In respect to this ground he asserted that it was proved by the witnesses of the Appellant that the suit piece of land belongs to the Appellant. According to him evidence adduced by the respondents was not true in respect of fixing the boundary especially on the allegations that baobab tree was the boundary. He supported his argument by the decision of Paulina Samson Ndawavya vs Theresia Thomas Madaha, Civil Appeal No. 45 of 2017, averring that the respondents could not prove their allegation. The third ground is on the trial tribunal failure to understand the nature of the dispute and wrongful awarding the Appellant's land to the respondents. The learned counsel reiterated his submissions in respect of the 2nd ground that the respondents 'created' non-existence fact like of fixing of wrong boundary. He relied on the decision in Mathias Bundala 7 vs Republic, Criminal Appeal No. 62 of 2004 urging the court to disregard the false testimony. In response thereto, the learned counsel for the respondents contended that the trial tribunal evaluated evidence on record and thus reached to the correct decision. According to the respondents, the records of the trial Tribunal disclosed that the testimonies of PW1 (SU1), DW1, DW2 (SU1 and SU2) revealed the respondents herein are not trespassers to the suit land. The learned counsel for

the respondents submitted further that the Appellant had the duty to prove his claims of ownership of the suit land, the duty which he could not discharge. In respect of the second and third grounds, the leaned counsel for the respondents was of the view that the trial Tribunal did not rely on false evidence, only that the Appellant could not prove his claims before the trial Tribunal. After having gone through the submissions and records of the trial Tribunal, it is now apt to determine whether the appeal is meritorious. I have gone through the three grounds of appeal and found that all of them are addressing on the question of evidence on record. Generally, in the 8 said three grounds, the Appellant is faulting the judgment and decree of the trial Tribunal for, one, failure to evaluate evidence on record; two, relying on false evidence; and three, failure to understand the nature of the dispute. Before delving to determine the question whether the trial chairperson properly evaluated evidence on record and or relied on false evidence, let me address the question of the nature of the dispute before the trial Tribunal. My perusal of the pleadings which were presented before the trial Tribunal, the application in particular, I found that the Appellant herein, who was also the Applicant, was alleging trespass. According to the pleadings, the Appellant alleged that the respondents

herein had trespassed into 12.598 acres part of the Appellant's piece of land measuring 21.212 acres. In determining the matter presented before her, the trial chairperson framed the following issues which are quoted hereunder verbatim: - ’7. Endapo Mieta Maombi ni mmiiiki halali wa eneo ienye mgogoro 2. Endapo Wajibu maombi ni wavamizi katika eneo hiio. 9 3. Nafuu zipi wadaawa wanastahiH." The above issues are translated in English as follows:- 1. Whether the Applicant is the lawfully owner of the disputed land; 2. Whether the respondents are trespassers into the disputed land; and 3. To what reliefs are the parties entitled. The above issues clearly show that the trial chairperson well understood the nature of the dispute before her. This is because, in order to establishing the claim of trespass to land, the party alleging, must first prove to be the owner of such land. The trial chairperson did this by framing the appropriate issue as to 'whether the applicant (appellant) is the lawful owner of the disputed land.' In order to prove the allegation of trespass which was the centre of the dispute, the trial chairperson framed the issue 'whether the respondents are trespassers into the suit land. From the foregoing, it is clear that the trial tribunal understood the nature of the dispute. io Turning to the grounds of failure to evaluate and reliance on false evidence, let me

start by pointing out that I am aware of the doctrine developed by the court that parties and the court are bound by the pleadings. This principle has been stated in a number of cases, one of them being that of Barclays Bank (T) Ltd vs. Jacob Muro, Civil Appeal No. 357 of 2019 where the Court of Appeal of Tanzania stated thus: 'We feel compelled, at this point, to restate the time- honored principle of law that parties are bound by their own pleadings and that any evidence produced by any of the parties which does not support the pleaded facts or is at the variance with the pleaded facts must be ignored." [Emphasis added] In the light of the above authority, the Appellant was obliged under the doctrine of 'onus probandi actori incumbit embodied in section 110 (1) of the Evidence Act [Cap 6 RE 2019], to prove that he owns the landed property measuring 21.212 acres and that the respondents had trespassed into it to the extent of 12.598 acres. The question is whether the Appellant managed to prove his claim of trespass. It should be considered that for one to prove encroachment/trespass to land, he/she must be able to prove the following elements; one, ii ownership of the land alleged to be encroached; two, the size of the land in dispute; and three, the extent of trespass. The element of ownership is necessary for establishing locus standi of the claimant or the person who

alleges trespass to the suit land. It is also crucial to prove the size of the land claimed to be owned by the claimant in order to prove the extent of trespass. In the instant case, the Appellant was duty bound to prove that he owned the piece of land measuring 21.212 acres and that the respondents had trespassed part of it to the extend of 12.598 acres. The Appellant paraded five (5) witnesses who testified as follows, the Appellant who testified as SMI (PW1) told the trial Tribunal that the respondents had trespassed into the suit land which belonged to his parent. I have gone through the entire testimony made by him, I could not find him informing the trial court how the suit land came to his possession or if at all he was acting as an administrator of the estate of the late SAID MAMBO. The testimony of SMI was confirmed by evidence adduced by SAID OMARI MLANZI (SM2) and MAULID RASHID MNERA (SM5) that the 12 suit landed property belongs to the late SAID MAMBO. SM2 and SM5 never told the trial tribunal as to whether the landed property was ever transferred to the Appellant. Evidence of SM3 one MOHAMED RASHID MNEKA, the nephew of the Appellant was to the effect that he was just employed to clear the land and he was not aware of the size of the land which the Appellant was claiming. On her part, SM4 one ASHA HASSAN JUPEGE only told the trial Tribunal that the Appellant is the

son of Said Mambo and that the land she used to farm was bordering the suit landed property. However, SM4 could not say anything about the size of the suit landed property and if the said property was transferred from the late Said Mambo to the Appellant. In Hemedi Saidi vs. Mohamed Mbilu [1984] T.L.R 113 the court held that: - '77? measuring the weight of evidence it is not the number of witnesses that counts most but the quality of the evidence..." I have examined evidence adduced by all five (5) witnesses paraded by the Appellant and found that no one who gave evidence on how the Appellant acquired the suit landed property. Some of the witnesses of the 13 Appellant's case dared to testify that the suit property belongs to one SAIDI MAMBO. From evidence on record, there is no one among the witnesses of the Appellant who exactly told the trial tribunal about the size of the land, which the Appellant has claimed to own, and the extent of the trespass committed by the respondents. In the final analysis, I find that the Appellant did not prove ownership of the disputed land, trespass and extent of the alleged trespass. The trial chairperson dismissed the claims before her for want of proof. I am of the firm view that the trial chairperson was justified so to do. In the upshot, the appeal deserves to be dismissed. The fact that parties are relatives, I dismiss the entire appeal and order each party to 14