20161028 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA AT MBEYA LAND APPEAL NO. 21 OF 2014 (A rising from Land Application No. 3 of 2014 determined at the District Land and Housing Tribunal for Mbeya at Mbeya) THE REGISTERED TRUSTEES OF UAMSHO WA WAKRISTO TANZANIA (UWATA) ...................... APPELLANT VERSUS TATIZO NGIlBUDZI ........................................ 1st R.E,SPONDEN'J ZUBERY IfltONDO ...........................................2 nd R.ESPONDEN'I' 3rd KAPUNGA VILLAGE COUNCIL RESPONDENT JUDGMENT A.F. NGWALA, J. This Appeal emanates from the decision of the District Land and Housing Tribunal for Mbeya, which struck out the Application on grounds of misjoinder and non-joinder of parties. It also held that the Application was filed prematurely. The Appellants, the Registered Trustees of Uamsho wa Wakristo Tanzania (UWATA) are aggrieved by this decision. In their four grounds of Appeal they say that the learned Chairman erred in law and fact by holding that the Application was premature. Secondly he failed to consider the issues laid and to determine who was the owner and trespasser into the land in dispute. Thirdly the Page 1of 19 Chairman erred in law and fact for holding against the water tight evidence and exhibits tendered by the appellant. And lastly the chairman failed to give reasons for departing from the opinion of the assessors. At the hearing of the appeal Mr. Kalonga the learned advocate for the appellants submitted that the applicant own more than 360 acres since 2002 at Ukwavila Village. They had been using the land until 2013, when the 1st and 2nd Respondents invaded and trespassed into parts of the land in dispute. The respondents claimed to have been allocated the same by the 3rd respondent. For that reason the appellant instituted the matter before the tribunal. The learned Counsel contended that it failed to decide who was the rightful owner of the suit land and who was the trespasser. The provisions of Order XX Rule 5 of the Civil Procedure Code [CAP. 33 R. E. 20021 together with the case of Sheikh Ahmed Said v. The Registered Trustees of Manyoma Masjid (2005) T.L.R. 61 were cited in support of this contention. Mr. Kalonga further argued that the learned Chairman never dealt with the framed issues as a result he left them un-tackled. The opinion of the assessors as provided under Section 24 of the Land Disputes Courts Act CAP. 216 R. E. 2002 and the principles in the case of Usi Athmani Waltu v. Republic [1988] T.L. R. 78 were not complied with by the learned Chairman. The Chairman mistreated the opinion of the assessors. Page 2 of 19 In respect of the last ground of Appeal, it was submitted that the appellant brought two key witnesses, i.e. PWI and PW2. PWI ") substantiated clearly on how the applicant the appellant had acquired the land since 2002. He did so by tendering exhibits P1, P2 and P3 collectively. The Sale Agreement had been approved by the Village Council witnessing purchase of land from some of the villagers. The exhibits that were tendered included the Customary Certificates of Right of Occupancy issued by the District Executive Officer of Mbarali. That Certificate had never been revoked. It clearly show that the land in dispute belonged to the appellants. PW2 one Clement Rajab Mgaya testified before the tribunal that at that time he was the Village Chairman of Ukwavila Village. He tendered exhibit P4 (the map of Ukwavila Village) of 1989, together with exhibit P5, the revised map of 2009. The Counsel for the appellant insisted that the quality of the evidence of PW2 was that the appellant acquired some of the land by buying from the Villagers. When the appellant was allocated such lands he was also the Chairman of the Land Allocating Committee. The said allocation was guided by the map of 1989 which was similar to that of 2009. PW2 had also tendered exhibit P6, an expert Report prepared by the District Executive Director of Mbarali. That Report showed that the disputed land was in Ukwavila Village. Mr. Kalonga argued that when the District Land and Housing Tribunal visited the disputed land there were experts from the said DED's Office and private surveyors, who all together showed that the disputed land was 50 Page 3 of 19 .11 metres away from the boundary between Ukwavila and Kapunga Villages. He contended that there was a water tight evidence to prove that the land belonged to the appellants, however for the reasons best known to the Chairman of the District Land and Housing Tribunal for Mbeya Region did not consider the evidence and proceeded to base his decision on weak and contradictory evidence by the respondents. In response to the submission by the appellant's Counsel, Mr. Muhelela, the learned advocate for the respondent submitted that the Chairman of the District Land and Housing Tribunal was right to hold that the dispute was premature. Mr. Muhelela argued that it is necessary to make sure that all parties related to the dispute are joined. If that is not done it is what is termed as a misjoinder. He contended that the 1st and 2nd respondents were allocated the land by the 3rd respondent. Mr. Muhelela, however conceded to the argument by Mr. Kalonga that some of the land in dispute was allocated to the appellant by the villagers of Ukwavila and Ukwavila Village itself and Kapunga. He however contended that in order for a Chairman or Village Council to allocate land, he must have an authority to do so, and must make sure that the land belongs to that particular Village. According to Mr. Muhelela during trial, it was revealed that the boundary between Ukwavila and Kapunga Village was Ruaha River. The tribunal took trouble to visit the locus in quo but they never saw the Ruaha River. They noticed that the boundary between Ukwavila Page 4 of 19 and Kapunga Village was uncertain. Thus it was the counsel's argument that since the boundary was uncertain the same could ) lead the two villages to allocate the land without authority. While conceding to the submission by the appellant's counsel that a person can be allocated land in another village where a person does not live, but it was necessary that in order to hold such a land, he or she must follow the proper procedures on how to acquire such land from the village he does not reside. His born of contention therefore was that it was Ukwavila Village and not Kapunga Village which acted without authority. On the issue that the 'District Land and Housing Tribunal Chairman gave his decision while departing from the opinion of the assessors without giving reason thereof, the learned Counsel for the respondents conceded. He added that the Chairman never wrote the opinion of assessors because there was no need to do so. On the last ground that the District Land and Housing Tribunal Chairman ignored the evidence given by the appellant's side, Mr. Muhelela contended that the testimonies by the appellants and the documents exhibiting that they owned the land since 2002, like the sale agreements and the Customary Certificate's remains as per evidence that the appellants were allocated the disputed land by Ukwavila Chairman the land that did not belong to the said village. The main issue centered on the dispute of boundary which he thought the learned Chairman of the tribunal was correct in his decision. For these arguments he prayed this court not to disturb Pages of 19 the Judgment delivered by the trial tribunal and uphold the same with costs. Mr. Mikidadi, the learned Counsel for the 3rd respondent submitted that the land in dispute is falling between the boundary of Kapunga and Ukwavila Villages. The Ukwavila Village Counsel had exercised their power to allocate the land which they thought belonged to Ukwavila Village and its villagers and other applicants. The Kapunga Village also allocated the same land to the 1st and 2nd respondents which they say belonged to Kapunga Village. That is why the land conflict arose. Mr. Mikidadi supported the decision of the District Land and Housing Tribunal that the matter was prematurely filed as per the testimonies of the Chairmen of Ukwavila and Kapunga Villages respectively, who said that their boundary is Ruaha River. They even brought the maps of the two Villages which however showed that the Ruaha River was not there. It was the Geographical Survey Equipment that showed the boundaries. Mr. Mikidadi strongly argued that during the allocation of the land both the two Villages did not know their boundaries. In support of his contention he cited Section 7 (2) of the Land Act CAP. 113 R. E. 2002 and Section 22 of the Local Government (District Authorities) Act [CAP. 287 R. E. 2002] contending that it is the Village which is a corporate body that has authority to own land and to allocate the same to individuals. The two villages allocated the land while there was a pending conflict of the boundary. To him the District Land and Housing Tribunal Chairman was proper to hold that the suit was premature. Page 6 of 19 With respect to the 2nd ground of Appeal, the learned Counsel conceded with the submission by the appellants counsel. He did not ) object the position of the law and case law. According to him that however did not affect the decision because it could only be applied if the honourable tribunal had determined who owned the disputed land. The learned Counsel for the 3rd respondent acceded that it is true that the hon. Chairman departed from the opinion of the assessors without reasons. On the last ground regarding the water tight evidence by the appellants, it was firmly submitted that the District Land and Housing Tribunal could have acted upon it only if the conflict of boundary was resolved. Since it was not resolved the water tight evidence of the appellants could not resolve the matter. In rejoinder Mr. Kalonga for the appellant strongly insisted that the matter was not premature because the appellant was seeking redress to the fate of their land which they had owned since 2002. He added that exhibit P6 showed that the land in dispute had fallen within Ukwavila Village. Other wise they could not have issued the Certificates if there was a dispute. The tribunal therefore ought to have resolved the dispute. On the issue of boundary, Mr. Kalonga pointed out that the boundaries were marked by Geographical Survey Equipment, there were beacons with numbers and the maps tendered from the Page 7 of 19 Ministry of Lands. The numbers did not lie as per beacons. Even if there existed a conflict on the boundary that alone could not suffice to extinguish the right on the appellant's land which they have owned since 2002. On the issue of misjoinder of parties as contended by the learned counsel for the 1st and 2nc respondents, Mr. Kalonga contended that the same could not arise as the appellants sued the proper parties. The village land is under the Village Council of Ukwavila. He emphasized that the issue of misjoinder lCould not arise because in the pleadings the respondents admitted that they were allocated the whole land. Mr. Kalonga went on reiterating that the appellant's evidence was still water tight. Both the exhibits and the witnesses were from the government offices. As so long as their Land Right and Certificate of Occupancy had never been revoked and the disputed land is in Ukwavila Village, there was no any other language that the land in dispute is not the property of the appellant. Having reflected the submissions by the parties through their Counsels; the only issue that this court has to determine is whether or not the decision of the District Land and Housing Tribunal was proper under the eyes of the law? In doing so this court finds it prudent to deal with each ground of appeal in seriatim or separately, in order to resolve the legal matters or issues involved. Page 8 of 19 Regarding the first ground of appeal, the respective counsel's for the respondents have argued that due to the existence of the dispute in ) boundary, then it was not proper for the appellant to file the suit in the District Land and Housing Tribunal. The dispute over boundary ought to have been resolved first. Up on perusing exhibit P2 in the records, it reveals clearly that the appellant was given a Customary Right of Occupancy as a resident of Ukwavila Village. The issue of boundary has no significance here as there are Certificates of ownership of land in the said Village. More so the issue of boundary was not amongst the issues framed at the commencement of hearing. That was not the cause of action or a dispute between the parties. The record clearly shows that the agreed issues that were framed for the said tribunal's determination were as follows:- "1. Whether the applicant is a lawful owner of the disputed land. Whether the Kapunga Village Council had authority to allocate the land in dispute to the 1st and 2nd respondents. Whether the respondents invaded the applicants land To what reliefs are the parties entitled?" In any way, with the contemporary modern technology the issue of boundary cannot be determined by a person's naked eyes but through scientific processes, to mention Geographical Survey Equipment as the same is revealed in the tribunal record. The maps of the Village revealed the truth that there existed no dispute of boundary between the two Villages. The purported dispute was Page 9 of 19 unknown by the District authorities. It is obvious that the Mbarali District Council could not proceed to give authority to Ukwavila ') Village to offer the Customary Right of Occupancy to the appellant and other individuals if there was such a dispute. It is a trite procedure that whenever a dispute arises amongst the people and where those people fail to resolve their dispute amicably, the only way to do is to go to the Court to seek redress. So far as the matter at hand is concerned the place where the parties to this appeal could seek redress is through filing the suit in the relevant judicial body for land adjudication in order to seek justice. Given the nature of this dispute the suit was properly instituted in the District Land and Housing Tribunal which is a competent forum or court that is vested with powers to resolve land conflicts or disputes. The District Land and Housing Tribunals have been established in accordance with Section 22 (1) of the Land Disputes Courts Act, 2002, under the auspices of the provisions of Section 167 of the Land Act [CAP. 113 R. E. 20021 and Section 62 of the Village Land Act [CAP. 114 R.E. 2002]. Subsection (2) of Section 22 of the Land Disputes Courts Act 2002, empowers the District Land and Housing Tribunal to exercise jurisdiction within the District, Region or zone in which it is established. The same Act under Section 33 (1) (b) confers general jurisdiction on the District Land and Housing Tribunal to exercise original jurisdiction. Apart from that it also have jurisdiction in all such other proceedings relating to land under any written law. For the purpose of this appeal the subsection reads:- Page 10 of 19 "33(1) (a) . ) (b) In all such other proceedings relating to the land under any written law in respect of which jurisdiction is conferred on a District Land and Housing Tribunal by any such law." In view of the above explanations and the mentioned provisions of the law, the Application by the appellant had been properly instituted in the Mbeya District Land and Housing Tribunal. The matter was not premature. As to the second ground of appeal, it is trite law that whenever any dispute or case is brought before the Court of law or tribunal, those courts should ensure that the dispute is settled fairly and in accordance with the law. The land disputes among the parties concerned needs to be resolved, settled and determined by such a court or tribunal without undue delay or technicalities. The adjudicators too should make sure that they settle the dispute or controversies to finality. In the instant appeal, what was in dispute at the District Land and Housing Tribunal was to find out who was the rightful owner of the disputed land and nothing else. Much as the District Land and Housing Tribunal had managed to visit the disputed land, it had the duty to analyse the facts of the case vis a vis the available evidence and proceed to give the verdict. More so the District Land and Housing Tribunal had to warn itself on its move to go to the locus in quo without following the proper Page 11 of 19 procedures if indeed it was really necessary to do so. The pleadings on record clearly show that the dispute was not over a boundary. To say the least the move was uncalled for specifically after the witnesses had testified in court. More so there is no law that compels the tribunal to visit the locus in quo. Much as it is in the discreation of the tribunal that it has to visit the locus in quo but there must exist special circumstance to do so as pointed by the Court of Appeal of Tanzania in the case of Nizar M. H. Ladak V. Gulamal Fazal Jan Mohamed (1980) T. L.R. page 29 which held that:- "It is in special circumstances that the court can visit the locus in quo. And in doing so, the court may find it being a witness instead of an adjudicator." Surprisingly, the learned Chairman glittered the issue at hand and brought that issue of boundary of which in the circumstances of the case, the pleadings and the available, documents was not there. The issue of boundary had no deal. It is in my considered opinion that in this case, the issue that ought to have been disposed to its finality was not dealt with by the learned Chairman. It was held in the case of Sheikh Ahmed Said v. Registered Trustees of Manyema Masjid (2005) T.L.R.61 by the Court of Appeal of Tanzania that:- "It is necessary for a trial court to make a specific finding on each and every issue framed in a case even where some of the issues cover the same aspect." Page 12 of 19 This holding is in line with the provisions of Order XX Rule 5 of the Civil Procedure Code CAP. 33 R. E. 2002 which provides to the ) effect that:- "In suits in which issues has been framed, the court shall state its findings or decision, with the reason therefore upon each separate issue unless the findings upon any one or more of the issues is sufficient for the decision of the suit." From the findings and observations made herein above, I am of the considered view that the second ground of appeal also succeed. And this moves me to the 3rd ground of Appeal. Upon looking at the evidences and the documents tendered in the tribunal in support of the application, there are witnesses like PW 1 one Moses Hansi Kapasi who inter alia testified that:- "I am on the committee of the supervision of the land in dispute. The ownership of the land started in 2002. We went at Ukwavila Village to pray for the land to cultivate as a society. At that time we got (9) acres because there were many applicants, the village was allocating few acres to people. We started to cultivate together with other people with whom we were allocated the land. Those people the land was not good because water was a problem. They decided to sale the land to us. We have the Customary Occupancy signed by the IVTharali Land Officer. The Certificate of Customary Occupancy we got in 2003." Page 13 of 19 The said Certificate of Occupancy was admitted by the tribunal and marked as exhibit "P 1". This has been extracted from the tribunal's ) proceedings. PW 1 also had evidence to show before the tribunal that they bought the disputed land. Those were the agreements of purchase made at Ukwavila Village and he tendered them and were admitted by the court and marked as exhibit "P2". There was no objection from the respondent's side, regarding either their genuiness or their loyalty. When cross examined PW1, the response was that:- "The whole 360 acres we bought the 9 acres from Ukwavila Village Councila and the rest from the local owners at page 11 of the tribunal's proceedings. PW2 was Clement Rajab Mgaya, testified that, he was the Chairman of the allocation committee, the chairman of the village. He stated further that he knows UWATA, and as the Council they allocated to her farms of not less than 149 acres ... among 149 acres, the disputed land are 9 acres, 331 they had bought from individuals who were allocated the land. PW2 proceeded to testify at page 16 of the typed tribunal's proceedings that, "In 2002 before allocating we took consideration of the village bounders, I was guided by the map of 1989. I have the map; I will explain and tender the map to court. This is the map of the ward; there is a beacon at "Kikolongo ". Page 14 of 19 13 He tendered the map and it was admitted I by the court as exhibit "P4" and there was no objection regarding its admission from the other part. In short that was what transpired during trial. All those testimonies and the exhibits tendered by the witnesses were admitted by the tribunal with no objection. It's absurd that in the analysis of the evidence, the same tribunal did not consider or act on those documents. In the Judgment of the tribunal I only found the summary of the evidences by the witnesses but it did not go further and discuss the credibility of the witnesses and or the genuiness of the exhibits tendered and admitted by the tribunal. This is contrary to both rules of evidence and practice of analyzing and evaluating the evidence tendered in court. It amounts to irregularity and in justice. To this point, I join hands with the appellant that the learned Chairman held against the ambit of the evidence adduced before the tribunal and the exhibits tendered and admitted by it. On the last ground of appeal, the appellant is complaining that the leaned tribunal offended the provisions Section 24 of the Land Disputes Courts Act, 2002 (supra) by not giving reasons as to why he disregarded the opinion of the assessors. For the purpose of this Appeal, the very Section 24 of the Land Disputes Courts Act, CAP. 216 R. E. 2002 reads:- Page 15 of 19 LI "In reaching decisions the Chairman shall take into account the opinion of the assessor but shall not be bound by it, except that the Chairman shall in the Judgment give reasons for differing with such opinion." Of interest in this provision of the law is the word "shall". In a simple meaning word shall means it is a must or it is mandatory. The Chairman therefore was obliged to comply with the mandatory requirement of the law to give reasons for the departure as he is not bound by the opinion of the assessors. In his reasoning the Judgment by the learned Chairman he decided that:- "The Application was premature filed is wrong as the same was neither opined by the assessor and on perusal of the record the assessors had opined for the applicant." The above decision by the Chairman was wrong because it did not comply with the principles of law enshrined under Section 24 of the Land Disputes Courts Act together with the Baland Singh Rule of practice when a judge or departs from his assessors in assessing evidence. A Judge, Magistrate or Chairperson must record his reasons for departing from his assessors opinion as stated in the cited case of Usi Athumani Matu v. Republic [1988] T. L. R. 78 the Court of Appeal of Tanzania held:- "The learned trial judge in this case complied with the Baland Singh Rule of Practice that he gave good and convincing reasons for reaching a different conclusion from those of his assessors" Page 16 of 19 As this particular argument had been admitted by both Counsels for the Respondents. There should be nothing more to add however it is for the interest of justice that once the law specifically provides for a certain procedure to be adhered to then it should be adhered to strictly and it should be treated as an issue of technicality that can afford cure under article 107 (2) (e) of the Constitution of the United Republic of Tanzania (1977) as amended from time to time. To emphasize on this point the position in law is clear as elaborated in the case of Mohamed Enterprises Tanzania Limited v. Masoud Mohamed Nesa, Civil Application No. 33 of 2012. The Court of Appeal of Tanzania at Dar es Salaam (unreported) held that:- "In our considered view article 107 (2)(e) of the Constitution do not in any way subjugate the power and intention of relevant provision of laws and rules of procedure dully enacted. In fact the later (statutory provisions of laws) obtain their validity from the very provisions of the Constitution." My emphasis to this is that it is not only the parties to the suit who are only obliged to abide to strict adherence to the provisions of the law, but also courts of law to which members of the society expect to get justice. For this reason the 3rd ground of appeal is meritorious and it is accordingly upheld. Page 17 of 19 In the end result and for the interest of justice, for the foregoing reasons this appeal has merit. It must succeed. Consequently I ) allow the Appeal with costs. The Judgment and Decree of the District Land and Housing Tribunal is hereby quashed. The appellants are declared the lawful owners of the disputed land. For avoidance of doubt and unnecessary future disputes and litigation the 1st and 2nd respondents should be evicted from the land in disputes forthwith. Order Accordingly. 2 CO UR r\ Y6~ 1 i1 - A.F. NGWALA JUDGE 28/10/2016 'U Page 18 of 19 Date: 28/10/2016 ) Coram: A.F. Ngwala, J. Appellant: Present For appellant: Miss A. Kamanzi (Advocate) 1" Respondent: Absent For 18t Respondent: Mr. Muhelela (Advocate) 21d Respondent: Present For 2' Respondent: Mr. Muhelela (Advocate) 3' Respondent: Absent For 3rd Respondent: Mr. Mikidadi (Advocate) Court: Judgment delivered in the presence of the parties and their respective Advocates. Court: Right of Appeal to the Court of Appeal of Tanzania explained. A.F. NGWALA JUDGE 28/10/2016 Page 19 of 19