vaiko joel mwaipela administrator of the estate of the late joe anoslsye mwaipela versu said shabani mwandeles said shabani mwandeles 2022 tzhclandd 12469 28 february

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 99 OF 2021 (Arising from the decision ofthe DistrictLand and Housing Tribunaifor Coastai Region at Kibaha in Application No. 101 of2015) VAIKO JOEL MWAIPELA (As an Administrator of the Estate of the Late Joe! Anoslsye Mwaipela) APPELLANT VERSUS SAID SHABANI MWANDELE RESPONDENT JUDGMENT Date oflast Order:06/12/2022 Date ofJudgment: 28/02/2022 T. N, MWENEG0HA,3: This is the Land Appeai arising from the decision of the District Land and Housing Tribunai for Coastai Region at Kibaha (Trial Tribunal) in Application No. 101 of 2015,the appellant appeals against the whole Judgment and Decree on the following grounds; - l.That the Hon. District Land and Housing Tribunal's Chairperson grossly erred both in law and in fact by not carrying out correct and sufficient analysis and evaluation of whole evidence adduced before the Hon. Tribunal in course of adjudicating the matter. 2.That the Hon. District Land and Housing Tribunal's Chairperson grossly erred both in law and in fact by erroneously deciding that a non-employee person can hold or act in public office and dully execute legally Government document(s) 3.That the Hon. District Land and Housing Tribunal's Chairperson grossly erred both in law and in fact by erroneously deciding that unchallenged documents though are illegal render it to be legal. WHEREFORE,the appellant prays for the following orders: - I. That this appeal be allowed II. That the appellant be declared a lawful owner of the which is subject of this appeal. ill. Any other rellef(s) as this Honorable Court may deem fit and just to grant. Hearing of this appeal was by way of written submissions. The appellant was represented Sued Ismail, Advocate while the respondent was represented by Joseph Say] Mabula, Advocate. In his submission in support of the first ground of appeal Mr. Ismail submitted that during the hearing at the trial, the Appellant herein testified to the effect that the land in dispute belonged to his late father and to that effect he tendered Exhibit P3 (Sale Agreement dated 31^ December 2000) which showed that his father purchased the land in dispute from the Late Hamisi Mohamedi Ndomondo. Hence among other estates his father left is the said land in dispute. He added that the history of the land was well testified by PW2, PW3, PW4 and PW5 during trial. That the Appellant's late father purchased the land from the Late HamisI Mohamedi Ndomondo. They have all testified that there \were operations of virgin land reallocation which, included a big part of Late Hamisi Mohamedi Ndomondo's land. However, in the said land reallocation of the late Ndomondo, he remained with 30 acres which were not allocated to anyone rather they remained untouched and left under the ownership of Ndomondo himself, and the 13 acres as a part of the said 30 acres of land were sold to the late father of the Appellant. That, he late father of the Appellant was developing it by cuitivating it ali the time. He added that all Applicant's witnesses testified that the land which was subject to ailocation was virgin iand and not the iand which was well developed like the land of the late Ndomondo. It was his submission that ail the witnesses testified in court that during the operation of land allocation, the Respondent herein was never allocated any land as he stated. That the witnesses further testified that they know the land and boarders of the land purchased by the late father of the Appellant from the late Ndomondo. He submitted that DW3 Salum Limanga testified that he was the one who signed exhibit D1 (iand aiiocation documents) expiaining that he was the Deputy Viliage Executive Officer of Kiiuvya during 2000, but to the contrary PW4 Yusuphu Kigundula clearly testified that he was Village Executive Officer at Kiiuvya Village from 1999 to 2002 and insisted that during the time of his Administration he never gave power to DW3 to act as the Viliage Executive Officer in the public office. That he insisted that the document for the land allocation of the Respondent was forged by DW3 and hence the ailocation was not legally done since no procedure was foiiowed to appoint DW3 as the Deputy Viliage Executive Officer. That in accordance of the ruies governing appointment of Deputy Vlllage Executive Officer there must be a consent letter showing that he was given such power of Deputy Village Executive Officer when Village Executive Officer Is not available In his office, but no such consent letter was tendered to satisfy the tribunal that he was really appointed to act In such position. That, It Is clear that since In the year 2000 there was another Village Executive Officer In the same office and this was not DW3. He submitted further that PW2(Ward Executive Officer) of that locality, PW3 Husein Said KIplllplll and PW4 Yusuphu KIgundula Village Executive Officer have all well testified on the history of the land, that 13 acres was purchased from one Ndomondo from 30 acres which was not subjected to the operation of land allocation, and they never saw or hear allocation of the Respondent s said land since the land was not subject to allocation during the land reallocatlon operation. He pointed out that DW3 never testified that he was the public officer to handle the public office for that time, and that he never proved that he was temporally appointed to be Deputy Village Executive Officer as he claimed that he signed the allocation documents when he was acting as the Deputy Village Executive Officer. He further argued that during his testimony DW3 Salum LImanga was required to prove his capacity that he was government employee, authorized to handle public office but he never proved the same. He submitted that going through the testimony of the PWl, PW2, PW3, PW4 and Exhibit P3 contrary to the defense witness It Is clear that, the Hon. District Land and Housing Tribunal's Chairperson grossly erred both In law and In fact by not carrying out correct and sufficient analysis and evaluation of whole evidence adduced before the Hon. Tribunal In course of adjudicating the matter and rather proceeded to decide the matter by relying on the allocations documents which were not from the Public office. Meaning the document was forged by the person who Is not public officer to allocate the said land to the respondent Submitting In support of the second ground of appeal which stated that,f/7e Hon. District Land and Housing Tribunai's Chairperson grossiy erred both in iaw and in fact by erroneousiy decision that a non-empioyee person can hoid or act in pubiic office and duiiy execute iegaiiy Government document(s), It was his contention that DW3 Salum LImanga concluded the alleged Illegal allocation of the disputed land to the Respondent assuming the power of the deputy Village Executive Officer. That, all the testimonies show that DW3 was never the employee of the said Village Executive Office since there was no proof submitted during hearing that there was a consent for him to act In the public office while he was not government employee, the said DW3 was not an employee of the public office during the time of land allocation to the Respondent, and hence DW3 was non-employee person and could not hold or act In a public office and dully execute legally Government document(s) for allocation. He argued that DW3 was supposed to be disqualified from what he did since there was no proof to that effect that he was employee of the government, and these facts were earlier stated during the Applicant s case. In respect of the third ground, that the Hon. District Land and Housing Tribunai's Chairperson grossiy erred both in iaw and in fact by erroneousiy decision that unchaiienged documents though are iiiegai fender it to be iegai, he submitted that Exhibit DI was the land allocation document which was signed by DW3. The said documents are defined to be illegal document since they were executed by a person who is not employee of the government. That, DW3 never proved that he signed a consent document to handle the government office, and he did the said allocation iiiegaily since he never had such capacity, and therefore ail documents were supposed to be disqualified by nullifying ail the signed allocation documents, because the documents were iiiegaily signed hence the documents were also illegal, regardless to the fact that, the issue of illegality of the documents was not challenged. That in this circumstance the trial tribunal should have taken this in into consideration that if DW3 never proved his capacity to act in the public office then all what he did without such capacity was null and void abnitio and hence the land allocation documents (Exhibit DI) were also illegal. He cited Section 110 (1) of the Evidence Act, CAP 6 R. E. 2019 provides on ''burden ofproofthat, whoever desires any court to give judgment as to any iegai right or iiabiiity depend on the existence of facts which the ascents must prove that those facts exist." He pointed out that the Applicant's witnesses PWl, PW2, PW3, PW4 and PW5 have all testified on how the said land came to the ownership of the late father of the Appellant herein, and had earlier objected strongly on the illegality of the land allocation which was conducted by the DW3 as stated that it was ail iiiegaily allocated. He also quoted Section 110 (2) of the Evidence Act, Cap 6 R. E. 2019 "State that when a person is bound to prove the existence ofany fact, it is said that the burden ofproof ties on that person." He argued that since there was an allegation from the Applicant's case that he did not have such power, it was for the defense case to prove that there was such power by tendering required documents proving the same. However, DW3 during his testimony never proved the disputed capacity of Deputy Village Executive Officer. That, the trial tribunal could have expected a proof on the appointment, such as a letter from the office proving the same, but he never tendered such proof. That the Chairperson proceeded to decide that the land allocation was legal while the documents were executed by the person who was not a government official acting in the government office. He added that the questions which the trial tribunal was to discuss is that, by the time the DW3 was acting as deputy Village Executive Officer in the public office, there was no Village Executive Officer ieading in that locality? He refer the answer to be on the negative. That PW4 was Village Executive Officer of that locality from 1999-2002, and in his testimonies PV\/4 testified that during his leadership he never gave the power of Deputy Village Executive Officer to DW3. That also the Ward Executive Officer testified that DW3 forged the said allocation documents because the documents are not in existence in the office and he never had such power of Deputy Village Executive Officer. However, the Chairperson never took this testimony into consideration. He then prayed that all grounds of appeal be allowed. In reply to the first ground of appeal Mr. Mabula submitted that the appellant has failed to satisfy this Court and the lower Tribunal on the allegations that during the land allocation, the portion of 30 acres of land of the late Ndomondo was not allocated to anyone and that they rather remained untouched. He added that irrespective of PW2, Ward Executive Officer admission that the late Ndomondo's land was affected by the land allocation carried out in Kisarawe and the testimony of PW2 that the late Ndomondo objected the allocation of his land to other people, PW2 testified that he Instructed the village to leave some parts of the land to Mzee Ndomondo and family. However, PW2 never testified on the mode of Instructions he gave to the village whether oral or written. And If written, no evidence was tendered with regard to such Instructions of PW2 to the village of KIsarawe. He added that the assertions of both PW2 and PW4(the alleged proper Village Executive Officer),that DW3 had never assumed an office as the Deputy Village Executive are an afterthought as these claims have not been convincingly refuted and no evidence was produced. It was his submission that the allegation that DW3 was not supposed to be the officer signing Exhibit DI (the allocation document) Is an afterthought. He cemented his argument that the allegation that the document. Exhibit DI was forged by the person who Is not public officer to allocate the Plaintiff's land Is an assertion which is lacking proof. He submitted that Exhibit DI collectively composed of three documents Including letter dated 01/04/2000 with the title "OMBI LA KUGAWIWA ENEO KILUVYA 'A', letter dated 12/04/2000 with the title "HATT YA KUGAWIWA SHAMBA PORI NDUGU SAID SHABANI MWANDELE ERA NANE ZA BEGA KWA BEGA" and the minutes dated 12/04/2000 with title "MUHTASARI WA 12/04/2000 WA KAMATI YA UGAWA3I WA SHAMBA PORI KILUVYA KU3ADILI OMBI LA NDUGU SAID S. MWANDELE EKARI NANE". He submitted that the minute for the village council dated 12/04/2000 was the lawful meeting where eleven members attended the same to discuss the application of the respondent and approved the said application. He added further that throughout the proceeding of the lower Tribunal no single witness ever challenged the meeting or the members of the meeting. That, the right for the respondent to be allocated the land In dispute originated from the unchallenged village council meeting which approved allocation of the land to the respondent. Hence, the current denial of the allocation of land to the respondent Is an afterthought which Is backed up with III will. He then prayed that the first ground be dismissed for being unfounded and vexatious. On the 2"'' ground of appeal, he submitted that not only DW3 who had to submit proof but also PW4 In a controversial situation like the one In this case. That, It was prudent to satisfy the lower Tribunal by tendering his appointment letter to the contrary of his being In public office as alleged. That, also as correctly observed by the Honorable Tribunal Chairperson, the appellant failed to satisfy the presiding Tribunal on any administrative or legal action taken against the DW3 and also the eleven leaders who were Involved In the allocation. It was his submission that the second ground Is unfounded and lacks merit. On the 3^^* ground of appeal, he stated that It Is trite law that proof In civil cases Is beyond the balance of probabilities or the balance of preponderance. Proof beyond reasonable doubt Is only required In criminal cases. He submitted that the respondent did prove to the standard required by law and satisfied the presiding Tribunal on his capacity. He added that the appellant Is trying to mislead this Court that DW3 has burden to prove beyond reasonable doubt which is not the requirement of the law. He submitted that the appellant has argued that not any person can be appointed as a public officer and that DW3 never tendered such documents appointing him. It Is his understanding that contrary to the Village Chairperson who assumes his office through vote, Village Executive Officer being a public servant is an employee of the local government who assumes office by an appointment. He submitted that PW4 who claims to be proper Village Executive Officer from 1999 to 2000 did not tender his appointment letter. He added further that It is obvious that Section 110(1) and (2) of the Evidence Act[Cap 6 R. E. 2019] inflicts the appellant. Based on the above contentions, he prayed for this Court to quash this appeal with costs for being unfounded and misconceived. In rejoinder the Mr. Ismail reiterated his submission in chief. Having gone through the submissions of both parties the issue for determination is whether the appeal has merits. All grounds of appeal are centered on the legality of the DW3, one Salumu Abdulhaman LImanga .to act as Village Executive Officer at the time of allocation of land to the Respondent and signing of the allocation documents. Mr. Ismail argued that PW4, Yusuphu Kigundula who was the Village Executive Officer at Kiluvya Village from 1999 to 2002, testified not to have given power to DW3 to act as the Village Executive Officer in the public office. He insisted that there must be a consent letter showing that he was given ,such power to act as the Deputy Viilage Executive Officer where the hoider of that post is not available in his office. To Mr. Mabula the argument that DW3 had never assumed office as the Deputy Village Executive Officer and that he was not supposed to sign Exhibit D1 is an afterthought. I wish to highlight herein that this was an issue that was raised at the trial tribunal and addressed by the Hon. chairman. 10 It is my observation that the pieadings at the Trial Tribunal particularly those of the appellant herein which were attached with "annexure JM" revealed that the annexture JM was signed by Village Executive Officer of Kiluvya, Kisarawe. During the hearing, the appellant herein brought in the said Village Executive Officer as PW4 who was the Village Executive Officer during the period 1995 to 2002 to challenge what the Chairman called allocation documents (exhibit Dl). That the said documents were signed by the person who was not Village Executive Officer at that time and he had never held In that post. If VEO Is not in office then WEO can appoint a person to act. That DW3 was Mjumbe (a member) and Mjumbe had no power to carry administrative duties The defense presented the alleged acting Village Executive Officer(DW3) who signed the said allocation documents to defend the same. Regarding the legality of Dm to sign the allocation documents, I have taken time to go through the records of this appeal especially proceedings at the trial Tribunal. PW2 who was Ward Executive Officer at the area where disputed land is allocated in 1998 witnessed the sale of land from Ndomondo who had 30 acres. PW2 also knew that DW3 was not Village Executive Officer in 2000, for the reason that he had no letter of appointment to that position. Ttie appellant also presented PW4 who was Village Executive Officer in 1999 to 2002. PW4 disputed to having officially authorized DW3 to take his position at any given time. He further afhrmed that the appellant bought the suit land legally. The appellant alleged that he is the owner of the suit land and he discredited the respondent's evidence. I find that he has fuifiiied his duty of proving his allegations to the required standard. 11 To the respondent herein he was duty bound to disprove such facts. On his part he presented DW3 who admitted to signing the allocation documents and testified that he acted in public office as Village Executive Officer from March to June 2000. In cross examination he stated that he had a letter; but he did not tender it prove the same. He did not present anything to justify the allegations that he was acting legally. All the defense witnesses did not know anything about the legality of DW3's position except D\N3 himself. As the respondent relied on allocation document which was doubtful especially with regard to the person who granted the said allocation; it is my view that such document, cannot prove his allegation. From the series of events testified by the appellant, that they bought the said land from the legal owner and their presentation of a leader who disputed the only evidence tendered by the respondent on the land In dispute and the fact that the appellant's evidence was not disproved, I find that the appellant's evidence carries more weight than the respondents. Thus, I find that the suit land belongs to the appellant. Therefore, the appeal has merits and is hereby allowed with costs. It Is so ordered. lEGOHA f^\3RT Qp 3UDGE G 28/02/2022 ★ ★ 12