toriya do ndooka vs joackimu so biluri 2023 tzhc 18679 27 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA DISTRICT REGISTRY AT SUMBAWANGA MISC. LAND APPEAL NO. 08 OF 2022 (Originating from Land Appeal No. 86B/2020 in the District Land and Housing Tribunal for Rukwa at Sumbawanga, Original Land Dispute No. 03/2020 Mpwapwa Ward Tribunal) TORIYA N DOO KA.................................................................................. APPELLANT VERSUS JOAKIMU BILURI............................................................................. RESPONDENT JUDGMENT 27/04/2023 & 27/06/2023 MWENEMPAZI J. The respondent in this appeal filed an application in the Ward Tribunal for Mpwapwa Ward, against the appellant claiming that she has trespassed into his land. Upon hearing the dispute, the honourable members of Lne Ward Tribunal came up with the decision that the dispute area belong to the respondent they accepted the respondent's story that he bought the same from Desdeli Sokoni, the young brother of the late husband of the appellant. The appellant was not satisfied by the decision, thus she i unsuccessfully filed an appeal in the District Land and Housing Tribunal. This is the second appeal. The grounds of appeal raised are: 1. That the District Land and Housing Tribunal chairperson erred in law and fact when she upheld the decision of Mpwapwa Tribunal which based on weak evidence of the respondent who failed to clearly proof (sic) as to how he purchased the disputed matrimonial land from the late Dezidere Sokoni who was the young brother of the late Appellant's husband but not the owner of the disputed land and without obtaining her consent. 2. That the learned District Land and Housing Tribunal chairperson erred in law and in fact when her decision relied on the unfair decision of Mpwapwa Ward Tribunal and so favouring the respondent herein who had no any strong evidence during the trial against that cogent evidence of the appellant hence this appeal against the same. 3. That the learned District Land and Housing Tribunal chairperson erred in law and in fact when failed to consider the Appe' ant's evidence that she and her late husband acquired the disputed land since 1997 and they have been using the same for cultivation and other economic purposes since then up to 2015 from which the 2 appellant remain widow after the death of her husband to date until when the respondent invaded therein hence this appeal. The appellant basing on the above grounds of appeal prayed this Court that it allows the appeal, quashes the decision of the District Land and Housing Tribunal and set aside an order of the District Land and Housing Tribunal order and declare that the dispute land belong to the appellant. She prays also for costs and any other order this honourable Court may deem fit to grant. This appeal was ordered to proceed for hearing by way of written submission. Only the appellant complied to the scheduling order. The appellant was being served by Mr. James Lubusi Advocate and it is on record that the respondent has been refusing to receive summons. Thus, he also did not file any written submission. In the written submission by the counsel for the appellant, the appellant's counsel has submitted that it was wrong to decide in favour c. the respondent as he did not prove ownership of the dispute land and the required standard. He did not prove to the balance of probability, that the respondent is the rightful of the land. 3 The counsel in his submission has stated that the dispute land, a garden was acquired during the subsistence of the marriage of the appellant and her late husband. On that he has argued that the land is presumed to be owned jointly by the appellant and her husband. In his view, the land was not sold; for the argument he has cited the case of Anna Kanugha Vs. Andrea Kamugha [1996] T.L.R 195 that even if it is registered in the name of one spouse, it is presumed it is held in trust of the other spouse. The counsel argued in alternative that the first appellate Court did not consider that the disputed plot was sold without consent as provided under section 114(1) of the Law Marriage Act, Cap 29 R.E 2019. He also cited the case of Bibie Maurid Vs. Mohamed Ibrahim [1989] T.L.R 162. In the argument the counsel seems to suggest that the appellant had contribution to the acquisition of the property thus the District Land and Housing Tribunal ought to have found her as the valid owner in the same weight as her late husband. The counsel also has cited the case of Gabriel Nimrrd Kurwijila Vs. Theresia Hasan Malongo, Civil Appeal No. 102 of .018, Court of Appeal of Tanzania (unreported) where it was held: 4 "The issue of contribution made by each party does not mean monetary contribution, it can be work property or works or advice toward the acquisition of matrimonial assets". The counsel argued that the appellant had contribution on that disputed land. The respondent should not be left to benefit from his own wrong by purchasing the land from unknown person without valid selling agreement certificates. It has been submitted by the counsel that though there was no valid consent but the respondent failed to elaborate how he purchased the said land from the late Desideli Sokoni. He even submitted wishing the body of the late Desideli Sokoni could be exhumed and revitalized so that he testifies. His prediction is that even Desideli will deny to have sold the disputed land. His wording are as follows: "Let say if the body of the deceased can be exhumed, and be revived Desideli Sokoni as the seller could s~y he did not sell the disputed plot". 5 There is no documentary evidence to substantiate that the appellant or any member of the family signed the sale agreement and that in his view is contrary to the law governing matrimonial property. On the third ground of appeal the appellant has submitted that the appellant used the dispute land for a long time. He prays that this Court finds so and quashes the decision of the District Land and Housing Tribunal. He has cited the case of Nassoro Vs. Rajabu Simba [1967], HCD No. 233. He states that the appellant has been using the land for over eighteen (18) years. I have read the record of the Mpwapwa Ward Tribunal and that of the District Land and Housing Tribunal as well as the record of the High Court. This being the second appeal, the Court has no power to interfere with the concurrent findings of facts of the two tribunals below unless their decision has the effect of occasioning injustice. However, apart from allegations that the respondent did not prove that he bought the dispute lano from Desideli Sokoni, the counsel for the appellant has submitted this case from the perspective of the appellant without taking trouble to read the record 6 of the Ward Tribunal and that of the District Land and Housing Tribunal for Rukwa at Sumbawanga. I should be honest in my determination of this matter that the counsel argued the appeal as if it was a case on matrimonial dispute where the issue is distribution of matrimonial properties. However, in my considered opinion, it may have been contributed by failure of the counsel to work beyond the appellant's story and therefore advise her properly. Honestly, if I would have been in his shoes I would advise the appellant to take another course and not to opt for an appeal. As the record shows, there was evaluation of the evidence by the trial tribunal and no doubt the conclusion was valid. I think that made the first appellate chairperson concur to the findings of the trial tribunal. Under the circumstances, the appeal is dismissed with costs. It is ordered accordingly. Dated and signed at Sumbawanga this 27th day of June, 2023 Date 30/06/2023 Coram - Hon. L. Ndelwa, Ag. DR Appellant - Present Respondent Absent J.J. Kabata Mr. James Lubusi for the Appellant: The mattei imihg for the Judgment today, we are ready Court: Judgment is deliven is day of 30 June, 2023 in the presence of Advocate for the Appellant Mr. James Lubusi and the Respondent, Ag. Deputy Registrar 30/06/2023 Right of appeal is full explained. 8