victoria kazimbaya

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY [AT MOROGORO] LAND APPEAL NO. 27189 OF 2023 (Arising from the decision ofthe KHombero District Land and Housing Tribunal in Land Appeal No. 91 of2021 delivered at Ifakara on the day ofJune 2023 before Hon. Senior Chairman C.P. Kamugisha, Originating from the Judgement ofIfakara Ward Tribunal Land case No. 02 of2021) VICTORIA KAZIMBAYA APPELLANT VERSUS HABIBA MAWAN3A ...RESPONDENT JUDGEMENT 28/02/2024 & 04/04/2024 KINYAKA, J.: The appellant was sued by the respondent at the Ward Tribunal of Ifakara at KHombero, hereinafter, "the Ward Tribunal" for trespass of the respondent's piece of land in Land Case No. 02 of 2021. The respondent alleged that the appellant constructed a toilet on her piece of land. The respondent alleged further that the toilet was also dangerous to the residents. The Ward Tribunal found merit in the respondent's allegations and entered judgement in her favour. Unhappy with the decision, the appellant preferred Land Appeal No. 91 of 2021 before the District Land and Housing Tribunal for Kitombero at Ifakara, hereinafter,"the Tribunal". On conclusion of hearing, the Tribunal dismissed the appeal with costs. The Tribunal held that both parties were given the right to be heard, and that the evidence of the respondent before the Ward Tribunal which was corroborated by the evidence of her witnesses was weighty compared to the evidence of the appellant which had no clear flow. Dissatisfied with the decision of the Tribunal in the said appeal, the appellant has before this court preferred ten grounds of appeal as reproduced below: 1. That, the District Land and Housing Tribunal grossly erred in law and fact for not conforming itself to the evidence of both sides at the trial tribunal and especially where the District land Chairman assented to the wrong opinions of his assessors hence reached at a wrong decision; 2. That, both the lower courts below grossly erred in law and facts for not adhering to the evidential burden of proving the action under the evidential burden of preponderance of probability hence the evidence of the appellant's case was heavier that respondent's case which had full of unanswered questions; 3. That, both the lower courts below grossly erred in law and facts for not adhering to the evidential burden of proving the action because the respondent had no locus stand/'to prosecute in the case against the appellant because the plot which her husband built a house was bought by her husband not the respondent; 4. That, both the lower courts below grossly erred in law and fact for wrongly reached at a wrong judgement without considering the existing facts that, the husband of the respondent (Richard Malisa) when purchasing the plot, he found the appellant had already established habitant there; 5. That, both the lower courts below grossly erred In law and fact by considering that, the respondent failed to substantiate his application by failure to tender as Exhibit sale agreement at the trial which ipso facto cou\6 prove whether it was the respondent who purchased it or not; 6. That, both the lower courts below grossly erred in law and fact for failure to comprehend the evidence that, the appellant was the one who earlier established and developed the area and her neighbours were VERONICA FARAJA and MZEE MSGKAME who left the respondent violating and abusing planted tree beacons which were palm tree, Msonobari, which were uprooted by the respondent; 7. That, both the lower courts below grossly erred in law and fact by deliberate motive because the same demarcation which demarcated the appellant, respondent and Mzee Msokane is the same, why it brings problem only on the area of the appellant; 8. That, both the lower courts below grossly erred in law and fact for failure to comprehend the evidence that the appellant was the one who earlier established and developed the area, so why her toilet is alleging to protrude towards the area of the respondent; 9. That, both the lower courts below grossly erred in law and fact for failure to comprehend the evidence that the purchased plot of the respondent's husband was very small and at the hind area he had no enough area for family usage, it was the respondent who begged the appellant to use her hind area for respondent's family usage; and 10. That, both the lower courts below grossly erred in law and fact for failure to comprehend the evidence that the respondent is vexatious, recalcitrant rude one who intends fraudulently to tease and plunder her own long time property. On 28/02/2024 when the matter was called before the Court, Adv. Margreth SimbI appeared holding brief for Advocate Sikujua Funuki for the Respondent. The appellant appeared in person without legal representation. The appellant prayed to argue the appeal by written submissions which was not objected to by the respondent. I granted the prayer. The appellant was ordered to file his submissions in chief by 13/03/2024, the respondent's reply submissions by 20/03/2024, appellant's rejoinder, if any, by 27/03/2024 and judgement was scheduled to be delivered on 04/04/2024. The appellant duly lodged her submissions in chief on 12/03/2024. The respondent did not file her reply submissions. The respondent's omission to file her reply submissions is tantamount to her failure to enter appearance and defend her case as held in the case of Famari Investment T Ltd v. Abdallah Selemani Komba, Misc. Civil Application No. 41 of 2018(unreported) on page 3. As such, the appeal proceeded exparte her. The appellant consolidated the 1^, 2"", 4'^ 5'^ 6'^ 7'^ 8'^ 9'^ and 10'^ grounds and argued them as one. She argued the 3"* ground separately. In support of the consolidated grounds of appeal, the appellant submitted that the Tribunal misapprehended evidence adduced at the Ward Tribunal. She contended that the respondent failed to testify on the size of her piece of land as she was not present when the land was purchased by her husband, one Richard Mallsa. She contended further that the respondent's husband was not presented before the Ward Tribunal to testify on the size of the land he purchased from PW2, Malianus Msokane. She submitted that PW2 who sold the land to the respondent's husband did not know the size of the land and the time during which he sold the same. She submitted further that the sketch map drawn at the locus in quo show that the disputed land is not part of the respondent's land. She argued that the respondent did not prove her case on balance of probabilities compared to the appellant who proved her ownership of the disputed land. She submitted further that where there is misdirection or misapprehension of the substance, nature and quality of evidence, the appellate court is entitled to look at the evidence and make its own findings of fact citing the decision of the Court of Appeal in the case of Deemay Daat and 2 Others V. R., Criminal Appeal No, 80 of 1994. She blamed the Tribunal as the first appellate court for its failure to perform its duty to reevaluate evidence adduced at the Ward Tribunal, make its findings and arrive at a just decision in favour of the appellant. Regarding the 3"^ ground of appeal, the appellant submitted to be a trite law that in any claim of breach of right or interest, the claimant should prove her locus standito sue. He contended that the respondent did not prove before the Ward Tribunal that she was the owner of the disputed land. She argued that it is the respondent's husband who purchased the disputed land but he did not appear to testify on his acquisition and ownership of the disputed land. She faulted the Tribunal for its failure to determine the ground. She cited the case of Lujuna Shubi Ballonzi v. The Registration Trustees of Chama cha Mapinduzi (1996) TLR 203, where the High Court held that iocus standi\s governed by common law according to which a person bringing a matter to court should be able to show that his right or interest has been breached or interfered with. He concluded that the respondent had no focus stand!\n the suit as she was not the owner of the disputed land. She pfayed for the appeal to be allowed with costs. Having summarized the appellant's submissions in support of the appeal, I will start with determining the consolidated 1^, 2"^, 4^^ 5^^, 6^^, 7^^ 8^^, and 10^^ grounds on the appellant's attack to the Tribunal for Its failure to re-evaluate evidence adduced at the Ward Tribunal. I As hinted earlier on above, the respondent was the complainant before the Ward Tribunal. On such basis, she was obliged to prove her allegations that the appellant trespassed her piece of land by building a toilet on it. In her attempt to prove her case, the respondent testified that the appellant was her neighbour who was present when she was building on the plot but surprisingly, she found a toilet on her piece of land, built by the appellant when she returned from Tanga. PW2 who sold the land to the respondent testified that the appellant is his sister. He named the boundaries of the piece of land that he sold to the respondent. He averred that the appellant trespassed the respondent's piece of land. The appellant's evidence was supported by her own testimony adduced at the Ward Tribunal and that of her blood sisters made at the locus in quo. The evidence of the appellant who testified as DWl was that the suit belonged to her family and she was in the process of initiating probate process. However, the evidence of her sisters, DW2 and DW3 was to the effect that land belonged to the respondent. Further, the appellant informed the Ward Tribunal that she witnessed the respondent trespassing her land when she was building on her piece of land since the year 2000 or so, but she decided to wait until later, when she initiated probate proceedings. <fer When the Ward Tribunal visited the locus in quo on 31/05/2021, It found the toilet dug by the appellant at the alley occasioning trespass Into the respondent's land. During such visitation, the appellant failed to show the boundaries of her land, and Instead, pointed the boundaries within the respondent's piece of land. From the above evidence. It is clear to me that the respondent managed to prove her case at the Ward Tribunal and hence discharged her burden of proof as required by section 110 and 111 of the Evidence Act, Cap. 6 R.E. 2022. On balance of probability the evidence of the respondent was weighty compared to the evidence of the appellant which did not disapprove the respondent's claim of trespass against her as summarized above. I agree with the appellant that PWl and PW2 failed to testify on the exact size of the land. However, I don't find that failure to be fatal due to the nature of the dispute before the Ward Tribunal. The dispute was not on ownership of the entire respondent's or appellant's lands but the trespass committed by the appellant into the respondent's land by building a toilet that extended to the respondent's piece of land. In a dispute of such nature, evidence as to the size of the entire land was not necessary to prove the appellant's trespass. It was necessary for the respondent to prove the extent of the appellant's intrusion into the respondent's piece of land, which the respondent managed to prove. From my observations above, it is my position that the Tribunal did not err when it found the Ward Tribunal to have properly evaluated the evidence. Hence, the 1^, 2"^, 4^^, 5^^, 6^^, 8*^ 9^^, and 10^^ grounds of appeal as consolidated are without merit and are accordingly dismissed. As for the 3'^ ground'of appeal on the respondent's lack of locus standi to prosecute the case against the appellant, notably, the same was raised at the Tribunal as the 2"^^ ground of appeal. Upon my scrutiny of the tribunal's judgment, I agree with the appellant that the ground was not determined by the Tribunal. However, although the appellant did not raise the said ground at the Ward Tribunal, the ground being a point of law, can be raised and determined at any stage. The Court of Appeal in the case of Peter Mpalanzi v. Christina Mbaruka, Civil Appeal No. 153 of 2019 held on page 6 that:- "Further, locus standlIs a point oflaw rooted Intojurisdiction. It is for that reason that it must be considered by a court at the earliest opportunity or once It is raised. In the instant case, the High Court Judge, was, with respect, wrong when he brushed aside the issue oflocus stand!once raised before him. The issue 10 ought to have been considered by the High Court regardiess of having been improperly raised or raised at a iate stage. Reverting to the instant matter, the evidence of the respondent, PWl at the Ward Tribunal was that the appellant trespassed into her land which was constructing a building while the respondent was present. PW2, one Malianus Msokame testified that the respondent was his customer to whom he sold the land. On the other hand, DWl, the appellant admitted to have witnessed the respondent constructing the first and second buildings on her land. In my firm position, the above piece of evidence prove that the respondent had interest in the land even if she was not the one who purchased the same. Again, the appellant claimed that the respondent was merely the wife of the purchaser, one Richard Malisa. However, it is not uncommon to find a husband purchasing the property either for his wife or for both of them. That notwithstanding, the fact that the respondent was the wife of the purchaser, coupled with evidence of PW2 that the respondent was his customer, and that the respondent built the houses on the land while the appellant was witnessing, it suffice to hold that the respondent had an interest in the land that entitled her to sue on the same, regardless of how smallest her interest was. ^ 11 In holding as I do, I subscribe to the decision in the case of Lujuna Shubi Ballonzi (supra)' where on page 6 of the decision, the High Court held:- "In this country, focus stand! is governed by the common few. According to that law, in order to maintain proceedings successfully, a plaintiff or an applicant must show not only that the court has power to determine the issue but also that he is entitled to bring the matter before the court:see Haisburyl s Laws ofEngland,. 4th ed, para 49 at p. 52. Courts do not have power to determine issues of genera! interest: see Re I.G. Farbenindustrie A.G, Agreement[1943]2 All E.R. 525. They can only accord protection to interests which are regarded as being entitled to legalrecognition. They will thus not make any determination of any issue that is academic, hypothetical, premature or dead. Because a court oflaw is a court ofjustice and not an academy oflaw, to maintain an action before it a litigant must assert interference with or deprivation of, or threat ofinterference with or deprivation of, a right or interest which the law takes cognizance of Since courts will protect only enforceable interests, nebulous or shadowy interests do not suffice for the purpose ofsuing or making an application. Ofcourse,provided the interest is recognized by law, the smallness ofit is immaterial."[Emphasis added] of 12 <. . i . r. • Likewise, in emphasizing on the right to bring an action before the court over infringement of a person's interest over a disputed matter, this Court in Aron Anjelo Myavilwa v. Harold Kusunya, PC Civil Appeal No. 14 of 2020 on page 7 quoted with approval the authority in a Malawian case of Attorney General v. The Malawian Congress Party and Another, Civil Appeal No. 153 of 2019 where the Supreme Court of Appeal of Malawi underscored:- ''Locus standi is ajurisdictionai issue. It is the ruie ofequity that one cannot maintain a suit or action uniess he has an interest in the subject of if that is to say uniess he stands in a sufficient dose reiation to it so as to give a right which require prosecution or infringement of which he brings the action." In view of the above authority, I find that the respondent had iocus standi to sue on the land. Haying so deliberated, the 3'^ ground of appeal is without merit and Is dismissed. In the final analysis, the appellant's appeal lacks merit and is consequently dismissed. As the appellant appeared unrepresented, and the fact that the respondent defaulted to file submissions to support the appeal, I make no order as to costs. 43— 13 It Is so ordered. DATED at MOROGORO this 04^^ day of April 2024. couRr 6^ .KA H. A. KINW! w» JUDGE 04/04/2024 ^ROG<^ K, A. -- 14 Court: Judgment delivered by F.Y Mbelwa, Deputy Registrar, this 4^^ April 2024 in the presence of the appellant only. rO^ F.Y MBELWA Deputy Registrar 4/4/2024 Right of Appeal is fully explained. CO SGD: F.Y MBELWA Deputy Registrar 4/4/2024 ^OROu •:K. it- ' ' - c 15