registered trustees of diocese of tanga rc vs batuli hassan 2014 tzhc 2119 26 august 2014

IN THE HIGH COURT OF TANZANIA AT TANGA (DC) CIVIL APPEAL NO. 6 OF 2006 (Originating from Civil Case No. 63 of 1997 of Resident Magistrate's Court of Tanga at Tanga) THE REGISTERED TRUSTEES OF DIOCESE OF TANGA (RC)............................................ APPELLANTS VERSUS BATULI HASSANI........................................................RESPONDENT JUDGMENT Ruqazia, 3. The appellant who was aggrieved by the decision of the Resident Magistrates' Court of Tanga appealed to this court listing down seven grounds of appeal which are as under; 1. That, the Trial M agistrate erred in iaw when he failed to observe that the said su it was legally incom petent before the court, on ground that it was tim e barred. 2. That, the Trial M agistrate erred in law and fact when he refused to avail an opportunity, to the Defence side to ca ll their intended Defence witnesses, who would have established that it is the Defendant (Diocese) which constructed the house on the p lo t which is in dispute. 3. The Trial Magistrate erred in law and facts, when he held that the Appellant (Diocese) transferred p lo t No. 21 Block "D" (Mnga'mboni) to the late Mbuguni whereas, it is the Mbuguni who transferred in exchange to p lo t No. 2 Block ”E". 4. That, the tria l m agistrate erred in law and facts when he failed to observe that if the Respondent was looking for a plan to erect a house on Plot No. 21 Block "D" then it is a conclusive evidence that her late husband had no property on Plot No. 21 Block "D " to transfer by way o f sale the Respondent (sic) 5. The Trial Magistrate erred in law and fact when he held that the su it p lo t No. 21 Mnga'm boni belonged to the Respondent without there being a documentary evidence, as PW2 testified that the file in relation to p lo t No. 21 Block "D " was missed, the evidence which would have proved that the said p lo t was actually belonged to the Respondent (sic) 6. The tria l M agistrate erred in law and fact when he took into consideration and trustworth, the evidence o f PW2 whereas in fact his evidence depends on the documents (the file) which him self said that it was not in existence (sic) 7. The tria l m agistrate erred in law and facts when he held that the house constructed on p lo t No.21 Block "D "belongs to the Respondent, whereas there was no sufficient evidence to hold so. 2 However, it is the additional ground which immediately caught my attention. The said ground says that: - Since the subject m atter involved in the su it was Land/House, the court (Resident M agistrates' Court) was not vested with jurisdiction to entertain it, after the statutorily (sic) period o f two years, as provided fo r under section 54 (3) o f the Land Disputes Courts Act, 2002, Cap. 216 elapsed. Therefore, the court has (sic) no jurisdiction to try and determ ined (sic) the said case on l( f h October, 2005 when it pronounced the judgm ent. In his argument in respect of this ground, Mr. Sangawe learned advocate appearing for the appellant contended that the suit was in respect of Land to which a court of Resident Magistrate has no jurisdiction. In reply, Mr. Chanjarika advocating for the respondent, to my surprise and chagrin did not pursue this very crucial point with the zeal and industry expected of him. All he thought was the right response was simply that the trial court had jurisdiction to entertain the matter. 3 With the enactment of the Land Disputes Courts A ct 216 R.E. 2002 all land matters had to be tried by courts and tribunals established under the said Act. Under section 3(1) and (2) of the Act, the following courts were vested with jurisdiction. It says: "3 (1) subject to section 167 o f the Land Act, and section 62 o f the Village Land Act, every dispute or com plaint concerning land shall be instituted in the Court having jurisdiction to determine land disputes in a given area. (2) The Courts o f jurisdiction under subsection (1) include: (a) The Village Land Council; (b) The W ard Tribunal: (c) The D istrict Land and Housing Tribunal; (d) The High Court (Land Division); (e) The Court o f Appeal o f Tanzania. " This had the effect of stripping ordinary courts of the jurisdiction to entertain land matters. However, since at the enactment of the Act, there were a number of cases pending in ordinary courts, like the instant, a period of two years was provided under the Act to have them heard and finalized. This was covered under section 54(1) and (3) of the Act which says: "54(1) Notwithstanding the provisions o f section 55, proceedings or appeals commenced in the High Court, the M agistrates' Courts, Regional Housing Tribunal, Housing Appeals Tribunal, Customary Land Tribunal and the Customary Land Appeals Tribunal which are pending on the date o f commencement o f this A ct sh all be continued, concluded and decisions and orders made thereon sh all be executed accordingly as if this A ct had not been passed. The Act provided further "54(3) AH proceedings or appeals under this section shall be concluded within the period o f two years from the date o f commencement o f this Act. " The Act came into operation on the 1st day of October, 2003 vide GN. 223 of 2003. 5 With the coming into operation of the Act, it effectively meant that all pending matters had to be finalized by the 1st day of October, 2005. The instant case was heard and defence case closed on 01/08/2005 well within time with judgment reserved. The said judgment was delivered on 10/10/2005 two months after the deadline. This is why Mr. Sangawe raised a jurisdictional point. It is agreed that it is only the judgment which was pronounced outside the time limit prescribed by the Act. I cannot downplay the importance of this point but I think upholding it will result in an injustice and stretching technicalities to the limit or even to absurdity. I cannot sail with Mr. Sangawe on this point so I dismiss the additional ground. In his submission in support of the grounds of appeal, Mr. Sangawe opted to argue grounds 5, 6, and 7 together. To begin with, he contended the suit was time barred and the trial court erred in not sustaining this point of objection on limitation. It was his assertion that the house was duly transferred on 5/10/1997 more than the statutory 12 years. Counsel further submitted that essentially, the dispute was between the appellant and the respondent's late husband. He was of the view that under section 3 of the 6 Law o f Lim itation Act, Cap. 89 R.E. 2002 the suit should have been dismissed. In reply, Mr. Chanjarika submitted that it is not true that the suit was time barred at institution; and also that it is not correct to say that the disputed house was sold to the respondent on 05/10/1979. He asserted that there is evidence before the trial court that it was sold on 28/06/1993 and the sale agreement tendered as Exhibit P4. As the suit was filed on 28/08/1997, he went on, that was only 4 years after the sale so it was within time. Mr. Sangawe advocated for the appellant as defendant in the trial court. He is therefore very conversant with the case. As such, he is aware of the sale agreement which was tendered before the trial court and admitted as exhibit P4 on 12/2/2001. The sale agreement shows the sale to have been effected in the year 1997. I therefore find it difficult to understand Mr. Sangawe's audacity to come up with the issue of limitation. In the face of such facts, Mr. Sangawe should have just been contented with the obvious. Lawyers as court officers should always avoid the temptation to win cases at all costs knowing that they owe a duty to the court to assist it arrive at a just decision. It is quite evident that there are no grounds upon which limitation could be raised so this point is found to have no merit and dismissed. On transfer of the Right of Occupancy, Mr. Sangawe submitted that there was no evidence to that effect. I had to go through the evidence and, pursuant to the testimony of PW2 Augustino Shaban who is a Land Officer, the transfer between Mbuguni Ally the vendor and the respondent, was signed by a Land Assistant one Sheshe, vide ERV no. 00611 of 12/07/1993. He also deposed that income tax was paid and that the Land Officer by the name of Pashua consented to the transfer. That is the evidence which is on record in the face of which, I find myself inclined to go with it. I cannot find any basis upon which to fault the trial court. Having said that, this ground also fails. Lastly Mr. Sangawe faulted the trial magistrate for refusing him an opportunity to call his remaining witness. Mr. Chanjarika countered that the allegation is not borne by the record. I agree with Mr. Sangawe that indeed, he was forced to close his case. Going by the record, it is true that the trial Court refused to grant an adjournment on the ground that it had earlier on made an order for last adjournment. The record shows that it was the very Counsel who asked for that last adjournment and yet, come the agreed date, he still prayed for another adjournment. This is not to forget that he had been given a three months' adjournment. And mind you, by that particular date, the case was celebrating its 8th year birthday in court. In all fairness, Counsel was overstretching the court's patience and, not surprisingly, it had reached its limit. I cannot venture to be the one to point an accusing figure at the trial court. After all, as it were, the learned Counsel was not even sure if he was going to secure his witness. Courts of law should not readily accede to prayers for adjournments simply because a prayer is made. Reasons for adjournment have to be weighed carefully and have to be reasonable. In the instant case, judging from the long duration the case had been in court, the trial court was justified to refuse to grant an adjournment. In the final analysis, the appeal is found to have no merit and, consequently, dismissed with costs. P. A. RUGAZ1A, J. 21/08/^014 DATE: 21/08/2014 CORAM: P.C. MKEHA, DR. APPELLANT: Absent RESPONDENT: Chanjarika for C/CLERK: Kombo Mr. Chaniarika: I also hold brief of Mr. Sangawe for the appellant. Court: Judgment is delivered in the presence of Mr. Chanjarika for the Respondent, who also holds brief of Mr. Sangawe for the Appellant. P. C. 26/08/2014 10