Land Appeal No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 27307 OF 2024 (Arising from the judgment and Decree of of the District Land and Housing Tribunal for Kinondoni at Mwananyamaia in Land Application No. 17 of2021 by Hon. S.H. Wambiii, Chairman) BETWEEN STELA KYANDO SANGA.............................................................. APPELLANT VERSUS JOSEPHINE GEORGE JOMANGA........................................... RESPONDENT JUDGMENT 13/12/2024 & 29/01/2025 A. MSAFIRI, J. The appellant being aggrieved by the decision of District Land and Housing Tribunal of Kinondoni at Mwananyamaia in Application No. 17 of 2021, (herein the trial Tribunal), lodged the instant appeal challenging the said decision basing on eleven (11) grounds of appeal which I will not reproduce herein. The appeal was heard by way of written submissions whereas the appellant's submission in support of the appeal was drawn and filed by Mr Francis Mwita, learned Advocate while the reply submission by the respondent was drawn and filed by Mr Cleophas Manyangu, learned Advocate. 1 In the submissions, the appellant consolidated the 1st and 2nd grounds of appeal and argue them as one, the 4th,6th,7th,8th, 10th and 11th grounds of appeal were also consolidated and argued as one, the 5th and 3rd grounds oa appeal were also argued as one and finally the 9th ground of appeal was argued separately. In total, the eleven grounds of appeal were merged into four grounds of appeal. In the merged four grounds of appeal, I have gathered that the core grievance of the appellant through her advocate is that the trial Tribunal failed to analyse, scrutinize and evaluate all the exhibits in regard to the testimonies of the witnesses of the respondent herein, instead, it relied on the evidence of the witnesses, the act which prejudiced the appellant herein. In the submission, the appellant tasked this court, being the first appellate court, to re examine the evidence on record, evaluate the same and arrive on a right conclusion. Indeed, being the first appellate court, and in the circumstances whereby the major grievance of the appellant is that the trial Tribunal failed to analyse and evaluate the evidence adduced, then this court have obligation to go through the evidence on record and make analysis accordingly. 2 Going through the records of the proceedings during the trial, it shows that the current respondent Josephine Jomanga was the applicant during the trial. She instituted Land Application No. 17 of 2021 suing the current appellant, claiming that the appellant has trespassed into her land located at Kihonzile area, Mabwepande Ward in Kinondoni Municipality. The disputed land is claimed to be measuring 44x15x26.4x11.8x20.2x19.8 square meters. She claimed that she purchased the disputed land from one Cadex Machale. At the same time the current appellant also filed a counterclaim in her defence stating that she is the actual owner of the disputed land which she bought from one Hamisi Ramadhani Bais and that the land has the size of 20x30 meters width and length. Both parties brought witnesses and produced documents to prove their claims. The witnesses adduced their evidence through the witness statements. On the part of the applicant Josephine Jomanga, she was represented by Hely Mona Machicha through the Power of Attorney. Machicha as SMI adduced the evidence that on 23/7/2020 the applicant purchased the disputed land from Cadex Machale at the purchase price of TZS 10 million only. The witness said that the disputed land is bordered by Mfereji wa 3 maji in the north, Barabara ya mtaa (street road) in the south, an easement and Mama Munuo in the west and Leticia in the east. He produced the sale agreement which he was among the witnesses. He said further that the sale was also witnessed by Kihonzile Hassan Mnondwa who was the Street Chairman. He also produced another sale agreement whereby Cadex Machale purchased the disputed land from the previous owner one Hamis Ramadhani Bais. The two agreements were admitted as exhibits P2 and P3 consecutively. Ally Yusufu testified as SM2. He said that he knew the applicant, the respondent, Cadex Machale and Hamis Ramadhani Bais. That the whole disputed area i.e. the land measuring 44/15x25.4x11.8x20.2x18.8 which is claimed by the applicant and the land measuring 30x20 claimed by the respondent, all forms the whole area of Kihonzile owned by the late Hamis Ramadhani Bais who died in 2017. SM2 said further that on 31/3/2014 his brother Hamis Ramadhani Bais sold a piece of land measuring 30x20 to Stella Kyando Sanga (the respondent). That SM2 witnessed the sale. That again on 06/6/2015, the late Hamisi Ramadhani Bais sold another piece of land measuring 24x45 m adjacent to the former land to Cadex Machale at the purchase price of TZS 19 million shillings. That SM2 also witnessed the said sale. -M L 4 SM2 said that he has never witnessed any sale agreement between Hamis Ramadhani Bais and Stella Kyando, purported to have taken place on 06/6/2015. SM2 said further that on 23/7/2020, he witnessed a sale agreement whereby Cadex Machale sold part of his purchased land to Josephine George Jomanga. That among the witnesses was Hassan Mnondwa, the Street Chairman of Kihonzile. He insisted that Stella Kyando Sanga has never purchased a land measuring 20x30m from Hamis Ramadhani Bais on 06/6/2015 but the land which she purchasesdwas measured 30x20 and it was on 31/3/2014. Hassan Mnondwa was another witness of the applicant and he testified as SM3. He said that he is Kihonzile Chairman since 2019 and the disputed land is located at Kihonzile Street. He stated that on 23/7/2020 he personally witnessed part of the disputed Iand(24x45m) being sold to the applicant Josephine Jomanga by Cadex Machale. That the land sold was measured in different dimensions i.e.44xl5x26.44.11.8x20.2x18.2 square meters. He identified the sale agreement dated 23/7/2020. He concluded that the disputed land was previously sold to Cadex Machale by Hamis Ramadhan, which later Cadex Machale sold to Josephine Jomanga. „ 5 On the respondent side, one Rose Sospeter Gimonge testified on behalf of Stella Kyando Sanga under the Power of Attorney. Rose Sospeter Gimonge testified as SU1 and stated that the respondent Stella Kyando Sanga is the lawful owner of the undisputed land measuring 30x20 meters which she bought from Baisi on 31/3/2024 and Cadex Machaya was a witness. That again on 06/6/2015, Stella Kyando Sanga purchased a piece of land from Hamisi Ramadhani Baisi and Cadex Machaya was the witness. SU1 said that Cadex Machaya was the caretaker of the disputed land and was living there. That, Cadex Machaya was dishonest and used a copy of sale agreement of the respondent to claim ownership of the disputed land and unlawfully sold it to the applicant. She produced the two sale agreements which were admitted as exhibits D2 and D3 respectively. SU2 was Juma Jabir Mkwanda who stated that he is cell leader of Kihonzile Street from 2017 to the date he was testifying. He said that the Chairperson of Kihonzile Street in 2019 was one Jihad Abdalla Nzagu and after that Hassan Selemani Mnondwa took over the Chairmanship of Kihonzile Street. He said that he knew one Cadex Machaye who used to live in the house which was adjacent to the disputed land. That Cadex Machaye told SU2 6 that the disputed land and the house he was living in belonged to the woman living abroad. SU3 was Jihad Abdallah Nzagu. He said that he was the first Street Chairman of Kihonzile Street. He said further that he knows the disputed land as being located in Kihonzile and he witnessed the sale agreement in person between the respondent Stella Kyando Sanga and Hamisi Ramadhani Baisi dated 06/6/2015 whereby Cadex Machaya was the witness for the purchaser and Ally Yusufu was the witness for the vendor and that the sale agreement was for consideration of TZS 30 million only. That, he went also to visit the property and identified the boundaries as shown in the sale agreement i.e. North- Baisi, South- Street Road, West- Mama Munuo, East- an easement adjacent with the respondent land which was purchased earlier. SU3 said that he has seen the sale agreement exhibit P3 by the applicant which was claimed to be executed on 06/6/2015 but at that time there was no Bunju "B" Street and that the agreement contain false details. He further denied to have witnessed exhibit P3, for the reason that the signature was not his, in 2015 there was no Bunju "B" Street but Kihonzile Street which has began in 2015 and he was the first chairperson. He maintained that exhibit P3 is not a genuine document because it did not come from his office as he was the Chairman. 1n 7 SU3 did not dispute the sale agreement of the respondent dated 31/3/2014 as it was not also disputed by the applicant whereby Stella Kyando Sanga bought the first plot which was also not in dispute. Having gone through the evidence by the witnesses, it is clear that the dispute is revolved around the two sale agreements which are both dated 06/6/2015. The first one is between Hamisi Ramadhani Baisi and Stella Kyando Sanga. In the agreement, Hamisi Ramadhani Baisi is selling a piece of land located at Kihonzile Street to Stella Kyando. The witnesses are Ally Yusuph for the vendor and Kadeksi Machaya for the buyer. The borders are on the north- Baisi, on the east- the road, on the west-Mama Munuo, on the south- the road. The agreement does not show the name of the street leader who witnessed and endorsed the agreement but it is stamped by the official stamp of the Street Executive Officer and was signed. There is no name of the one who signed. It is the evidence of SU3 Jihad Abdalla Nzagu that he witnessed the sale agreement between Stella Kyando Sanga and Hamisi Ramadhani Bais dated 06/6/2015 but this is not reflected in the said sale agreement as the same does not show the name of Jihad Abdallah Nzagu as the Street Chairman who witnessed the agreement. Also, another witness who was claimed to witness the sale one Ally Yusuph (SM2), denied to have witnessed the purported agreement but said that he witnessed the 8 agreement dated 31/3/2014 whereby Hamisi Ramadhani Bais sold another piece of his land to Stella Kyando Sanga. Exhibit P3 is the second sale agreement which is also purported to be entered on 06/6/2015 between Hamis Ramadhani Bais and Cadex Machale. In this, Cadex Machale purchased a piece of land located at Bunju 'B', Bunju Ward, Kinondoni for a consideration of TZS 19 million. The witnesses were Ally Yusuph and Bresta Mtahibirwa. Ally Yusuph testified as SM2 and said that the agreement was witnessed by Jihad Abdallah Nzagu, the former Street Chairman but the said Jihad has denied to have witnessed the agreement. The sale agreement also does not show the name of the Street Chairman but only the signature and the official stamp of the Chairman, Kihonzile Street. Also in this agreement, the land sold is said to be located at Bunju 'B', Bunju Ward, but it is stamped with the official stamp of the Chairman of Kihonzile Street. In exhibit D3, the disputed land is shown to be measured at 20x30 meters, while in exhibit P3, the land is said to be measured at 24x45 meters. The proceedings shows that the Tribunal visited the land in dispute. In attendance there were the parties with their advocates. The findings of the Tribunal which were read to the parties and agreed upon was that the 9 applicant has built a brick fence to surround the disputed area while the respondent has planted/installed the cement poles to surround her area. Then the important question is if the Tribunal visited the area and found that the applicant has built a brick fence to surround the disputed land, and the respondent has her own area which she has installed brick poles then who between the parties have trespassed into the land of another? The boundaries according to the Tribunal's findings on the visit are that; on the east, there is the area of Stella Kyando, on the south there is a road, on the west there is an easement and after that, there is Mama Munuo. On the North, there is a river and the area of Leticia. Going back to the disputed sale agreements, exhibits P3 and D3, the boundaries show that on the North, there is Bais, on the south there is a road, on the west there is Mama Munuo, and east there is a road. With these stark differences on the boundaries of the disputed area, it is my view that the Tribunal findings are not clear on which party has trespassed into the disputed land. The Tribunal findings on the visit on the locus are not clear, does not assist this court or any party in the circumstances on how it arrived to the decision that the disputed land is lawfully owned by the applicant Josephine George Jomanga and that she is not a trespasser. Mk 10 It is my further view that the evidence adduced in the court, depended heavily on the results of the visit of the locus in quo since the Tribunal has decided to visit so as to ascertain the facts which were stated in court by the parties. Here there were two sale agreements, exhibits D3 and P3, both claimed to be entered on the same date i.e.06/6/2015. The same vendor Hamisi Ramadhani Bais selling the same piece of land first to Stella Kyando Sanga at TZS 30 million, endorsed with the official stamp of the Street Executive Officer of Kihonzile Street, witnessed by Ally Yusuph(SM2) and on the same date, Hamisi Ramadhani Bais selling the same piece of land to Cadex Machale at TZS 19 million and witnessed by Ally Yusuph. The agreement is endorsed by the official stamp of the Street Chairman of Kihonzile Street while the sold area is shown to be located at Bunju B. This Cadex Machale later on 23/7/2020 sold this piece of land to Josephine George Jomanga at TZS 10 million and was stamped with the official stamp of the Street Chairman, Kihonzile Street (Exhibit P2). I find that all three sale agreements exhibit P2, P3 and D3 have omissions which raises questions which could have been answered by the observations of the Tribunal at the locus in quo. I know that the purpose of the visit at the locus in quo is not to fill the gaps in the evidence. But I am certain that the purpose of the visit is to establish whether the evidence in respect of the property is in tandem with what pertains ii physically on the ground, (see the case of Kimonidimitri Mantheakis vs Ally Azim Dweji &7 others, Civil Appeal No. 4 of 2018, CAT at Dar es Salaam (Unreported). The proceedings of the locus in quo shows that the parties attended with their advocates but does not show if the parties adduced evidence if any at the locus in quo in relation to the evidence adduced in court. I find that it was important for the Tribunal to make observation on the difference of the boundaries and the size of the disputed land as seen at the locus and as shown in the sale agreements. Unfortunately, the impugned judgment is silent on the observation of the Tribunal at the visit of the locus in quo and the differences/ contradictions of the boundaries and the size of the disputed area. This court as the first appellate court, while making re- analysis of the evidence adduced during the trial was of the view that the disputed area claimed by the parties might be two different areas and therefore failed to make a proper analysis of the evidence. To emphasis my point that the boundaries seem to be different, on exhibits P3 and D3, the boundaries are the same, on the North- Bais, on the south- the road, on the west- Mama Munuo, on the east- the road. The sizes of the areas are different. In exhibit D3- 20x30 metres, while in 12 exhibit P3 the size is 24x45. In exhibit P2, the same land now sold to Josephine Jomanga on 23/7/2020, the size is 44x15x25.4x11.8x20.2x19.8 square meters. The borders are on North- Mfereji wa maji (not Bais), on the south- barabara ya mtaa, on the west, an easement, Mama Munuo, and on the east- Letisia. The proceedings of the visit of the locus are silent on whether each of the party including the respondent showed the area they claim, and the size of their areas, and their boundaries. If the applicant has surrounded the disputed area with the fence, then how the respondent has trespassed into the disputed area? To what extent? The issues before the trial Tribunal were three; first, Is the disputed land the property of the applicant or the respondent? second; depending on the first issue, who between the parties have trespassed into the disputed land? And third; which are reliefs the parties are entitled of? During his findings, the trial Chairman seems to shift from the issues particularly the first issue and concentrated much on the differences of the names between Cadex Machale who was claimed to have sold the land in dispute to Josephine Jomanga, and Cadex Matchaya, Kadeksi Machaya who is said to be among the witnesses in the sale agreement between Hamisi Ramadhani Bais and Stella Kyando. Jul 13 The trial Chairman observed that in the sale agreement where the respondent Stella Kyando Sanga claim to have purchased the disputed land from Ramadhani Bais, the agreement was witnessed by Kadeksi Machaya (see exhibit D2). The trial Chairman was of the view that the respondent Stella Kyando Sanga failed to prove that Kadeksi Machaya, Cadex Matchaya and Cadex Machale are the same person and that the respondent has no any claim against Kadeksi Machaya and Cadex Matchaya whom she alleged he was a caretaker of the disputed area and forged the document to show that the area is his property. At page 14 of the judgment, the trial Chairman observed that he has read the sale agreements exhibits P3, D2 and D3 and found that the sale agreements are totally different. He observed further at page 18 of the judgment that the sale agreement of 06/6/2015 between Stella Kyando Sanga and Hamisi Ramadhani Baisi has no name of SU3 and the official rubber stamp of the Street Chairman. But the trial Chairman forgot to point out that even exhibit P3 which is also the sale agreement dated 06/6/2015 between Hamis Ramadhan Bais and Cadex Machale, which the trial Chairman relied upon, did not also show the name of Hassan Selemani Mnondwa (SM3), the street Chairman who purportedly witnessed it. Also, the sale agreement P3 shows that Hamisi Ramadhani 14 Bais sold to Cadex Machale a plot situated at Bunju B, Bunju Ward and not Kihonzile Street, contrary to the official rubber stamp of the Street Chairman of Kihonzile. In the circumstances, it was vital that the trial Chairman should have concentrated on the framed issues particularly on the issues of who between the parties is the lawful owner of the suit property and who has trespassed. According to the observation at the visit of locus, it is clear that the parties are neighbours, the applicant Stella Kyando Sanga having a different plot nearby the disputed area which she purchased from the same Hamisi Ramadhani Bais in 2024 as per exhibit D2. It was important that the witnesses who witnessed the purported sale and who testified in court could have been at the locus to cement what they have testified in court as there seems to be contradictions on the boundaries and the size of the disputed land. I agree with the trial Chairman findings at page 22 of the judgment that SMI Hely Mona Machicha and SM2 Ally Yusuph witnessed the sale agreement exhibit P2 whereby Josephine Jomanga purchased the disputed land from Cadex Machale, but the question remains on whether the land sold to Josephine Jomanga is the same which was purchased by 15 Stella Kyando Sanga. This question could have been clearly answered during the visit at the land in dispute, but the observations of the trial Tribunal are not clear on this. Having analyzed the evidence and observed the findings of the trial Tribunal, I have come with my own conclusion that the proceedings of the visit of the locus in quo are incomplete as they do not reveal important information like the differences of the borders/boundaries and the size of the disputed land which both disputing parties claim to own. I agree that the trial Tribunal could have exploited on the proceedings of the visit of the locus in quo and the observation in its findings in the impugned judgment instead of exploiting much on the difference of the names Cadex Matchaya, Kadeski Machaya and Cadex Machate. It is my strong view that the circumstances of the case necessitate a thorough observation, physically of the locus in quo, observing the pointing of the boundaries and the size of the land in dispute, not only by the parties, but also with the attendance of the witnesses in accordance with what they have testified in court. In that regard, I hereby nullify the proceedings of the visit of the locus in quo dated 22/3/2024 and order the revisit of the land in dispute whereby the trial Tribunal should observe the procedures of the visit as set in. 16 numerous authorities among them the cited case of Kimonidimitri Mantheakis vs Ally Azim Dewji &7 others, Civil Appeal No. 4 of 2018, CAT at Dar es Salaam (Unreported). Following that order, this court quashes and set aside the proceedings of the trial Tribunal from 22/3/2024, the judgment and decree following the proceedings and any subsequent orders. This court order the composition of the new judgment after the trial Tribunal have revisited the locus in quo and received the opinion of the assessors (the same assessors who sat throughout the trial). The appeal is allowed to such extent and with no order as to the costs. It is so ordered. 29/01/2025 17