LAND APPEAL NO 5960 OF 2023 VICTORIA VS JULIETHA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA LAND APPEAL NO. 5960 OF 2023 (C/F Application No. 38 of 2020 at Karatu District Land and Housing Tribunal) VICTORIA THOMAS ERROR........................................................ APPELLANT VERSUS JULIETHA AMNAAY MARMO....................................................RESPONDENT JUDGMENT 02/09/2024 & 16/10/2024 NDUMBARO, 3 Dissatisfied by the decision of the District Land and Housing Tribunal (the trial tribunal), the appellant is before this court challenging both the judgment and decree of the trial tribunal in Application No. 38 of 2020 which was delivered on7thDecember2022 and 22nd December 2022 respectively. In this appeal, theappellants arearmed with the following grounds; 1. That District land and housing tribunal erred in law and fact for failure to be neutral/impartial because the trial chairman and assessors conducted cross-examination instead of asking for clarification as a result the appellant was prejudiced. 2. That District land and housing tribunal erred in law and fact for mishandling the case by failure of the chairman to endorse his signature after the end of the testimonies of some witnesses hence the proceedings can be easily tempered. 3. That the entire proceedings of the trial tribunal are null for being presided over by a different chairman without stating reasons for so doing contrary to the law. 4. That the District land and housing tribunal erred in law and fact for failure to record the response of the appellant to the content of the application contrary to law. 5. That the District land and housing tribunal erred in law and fact for failure to record the assessor's opinion in the proceedings 6. That District land and housing tribunal erred in law and fact for failure to consider appellant evidence in its decision which amounts to business 7. That District land and housing tribunal erred in law and fact for failure to rule anything on the allegation raised by the appellant based on misrepresentation, fraud lack of consent and lack of knowledge over exhibit P2 (sale agreement) on the part of purported sale. 8. That District land and housing tribunal erred in law and fact by relying on the sale agreement (Exhibit P2) which does not have any effect of transfer ownership for want of village council approval. 9. That District land and housing tribunal erred in law and fact to declare the respondent lawful owner of the disputed land while she totally failed to prove her case and on the other hand, the evidence of the appellant was stronger and heavier than that of respondent 10. That District Land and Housing tribunal arrived at an erroneous decision as it made wrong reasoning and failed to properly analyse and scrutinize the evidence adduced during the trial as the result it made the wrong decision and gave insufficient reasoning for the decision The appellant made a prayer that the appeal be allowed and the order of the tribunal set aside or nullified with costs. When the matter was brought to the court both the appellant and respondent prayed to dispose of by way of written submission whereby the appellant enjoyed the service of Advocate Winnie Martin Advocate and the respondent enjoyed the service of Advocate Bungaya Matle Panga. Before determining the merit of this appeal, perhaps it is apposite to give a brief background of facts giving rise to this appeal. Essentially, the respondent, in this case, filed a suit against the appellants at the trial tribunal claiming ownership of suit land seven and a half hectares located at Upper Kitete village Mbulumbulu ward, the land was given by her late father Thomas Erro who died in 2012. The dispute in the said land started in 1992. In 2009 the appellant while his father is still alive filed a case District Land and Housing tribunal case No. 31/2009 whereby it was decided in 2010 that the appellant herein lacked locus stand, that his father was supposed to file the case. In 2020 the respondent filed a case in Land the District Land and Housing Tribunal against the appellant herein and it was decided in favour of the respondent. When the matter was called on for hearing before me, the appellant was represented by the learned counsel Advocate Winnie Martin Advocate, on the other hand, the respondent enjoyed legal services from advocate Bungaya Matle Panga. With leave of the court, the appeal was disposed of by way of written submissions which I shall consider while disposing of each ground of appeal. To begin with, the first ground of appeal is the submission of the appellant's counsel that the trial tribunals' chairman and assessors failed to be impartial by cross-examined the defendant during the trial instead of asking for clarifications, therefore appellant right was prejudiced. On the second ground of appeal, the appellants submitted that the trial chairman mishandled the case by not endorsing signatures at the end of testimonies of witnesses particularly on page 10 of typed proceedings, to make its authenticity questionable, and fatal irregularity which goes to the root of the case, in support of argument cited a case of Iringa International School Vs Elizabeth Post Civil Appeal No. 155 of 2019 CAT Iringa page 6-8. That the evidence cannot be constituted as part of the record, hence prayed the nullification of the proceedings. Third ground that proceedings nullity by being presided over by different chairman without giving reasons contrary to order XVII Rule 10(2) of CPC Cap 33 RE 2019, and it was emphasized in the case of Ostserbay Villas Limited Vs Kinondon Municipal Council Civil Appeal No. 173 of 2017. On the fourth ground of appeal, it is the allegation of the appellants that the trial chairperson failed to record the appellants' responses as to what was admitted and what was not admitted as per regulation 12 of Land Dispute Courts (the District Land and Housing Tribunal) Regulation GN, 174 of 2023, faulted that irregularity goes to the root of the proceedings. On the fifth ground that the District land and housing tribunal erred in law and fact for failure to record assessors' opinions, as nowhere assessors' opinions are depicted. In support of the argument cited a case of Ashanti Mining Company Limited Vs Gabriel Issa Nyambi, Land Appeal No. 63 of 2022 HC Dodoma, lenders proceedings nullity. On the 6th 9th and 10th, that evidence was not evaluated, argued the defendant in trial tribunal who is appellant herein presented strong evidence to support her case, that the plaintiff in trial tribunal ought to discharge the burden of proof the burden was not discharged, hence pray this court to re-evaluate the evidence. On the 7th ground that the District land and housing tribunal erred inlaw and fact for failure to rule out on issue of misrepresentation, fraud, lack of consent and lack of knowledge over exhibit P2 purported sale. That the said sale was written in English while the claimed seller and buyer don't understand English, it was not aproved by village council leaders to create doubt, prayed the exhibit be expunged for lack of approval and allow this appeal. On 8th ground That District land and housing tribunal erred in law and fact relying on a sale agreement on surveyed land without village 6 chair approval contrary to section 142(1) of the Local Government (District Authority) Act Cap 287 RE 2002, the position elaborated in the case of Bakari Mhando Swaga Vs Mzee Mohamed Bakari Shelukindo and others, Civil Appeal No. 389 of 2019 CAT that the sale agreement needs to be approved by Village Council. Responding to the appellant's submission, Mr Bungaya Panga raised a preliminary objection that the appeal was filed out of the statutory time of 45 days. The judgment was derived on the 7th day of December 2023 and the appeal was lodged on 5th February 2023 after laps of 60 days contrary to section 41 of Land Dispute Court Act Cap 226 RE 2019. Therefore this appeal is incompetent to be dismissed as per section 3 of the Law of Limitations Act Cap 89 RE 2019. The respondent further submitted that, if the appeal survives with regard to the ground first ground argued no impartiality was shown by the chairman and assessors, the appellant did not show the sort of questions claimed to be impartial and argued the ground to have no merit. The respondent on the second ground faulted that the chairman endorsed signature after the testimony of witnesses PW2 and PW3. Even if not endorsed the appellant did not show how was prejudiced on the said omission as it was stated in the case of Yakobo Magoiga Gichere Vs Peninah Yusuph Civil Appeal No. 55 of 2017 further argued if there is omission it can be overtaken under overriding objection under section 3 and 45 of Land Dispute Court Act. On the 3rd ground, the respondent argued the same chair who started taking the evidence was the one who wrote the judgment, the Honourable Ling'wentu took the initial proceedings in the case. The requirement of order XVI11 Rule 2 of the first schedule of Civil Procedure Code Cap 33 RE 2019 cited is to the respect if trial commenced hearing or in composition of judgment. The cited case of Osterbay Villas Limited is distinguishable. In the fourth ground argued the requirement as to fact in dispute and not in dispute was complied with. The trial chair on 31st May 2022 recorded regulation 12(1) and (2) of Land Dispute Courts (District land and housing tribunal) Regulation GN 174 of 2003 complied with, which it was to the effect that, that fact admitted and not admitted. In fifth ground, the appellant faulted that the assessor's opinion was recorded, and made reference to page 38 of trial tribunal proceedings Cleary shows the assessor's opinion was read before the court. In the 6th 9th and 10th grounds argued, the respondent presented strong evidence and discharged the burden of proof to the required standard, considering the testimony of PW1 that her deceased husband bought the land from the appellant's father and kept on using it since then, PW2 tendered sale agreement between appellant father and respondent husband. PW3 testified that the appellant filed a case in 2019 against the respondent where it was ruled it was time bared and she was not having locus stand as her father was the one to claim. Her father admitted the respondent was using the land from 1992 to 2004. Argued the claim that PW2 obtained by fraud, Misrepresentation, without consent and knowledge were not raised during the trial nor cross-examined, the court is bound on the pleading of the parties as it was started in the case of Masak Mus Vs Rogers Andrew Lumenyela and 2 others. On the 8th ground that lack of village chair approval may not vitiate proceedings, that parties are bound on the terms of agreement, that doctrine of sanctity of contract is applicable as it was argued in the case of Simon Kichele Chacha Vs Aveline M. Kiwale Civil Appeal No. 160 of 2018. The respondent prays for the appeal to be dismissed with costs. In rejoinder, the appellant addressed first the preliminary objection that the matter is not time bared, the judgment and decree were ready for collection on 22 December 2022. Argued Order XXXIX Rule 1(1) of Civil Procedure Code Cap 33 RE 2019, provides that, the decree is 9 a necessary document for appeal. Section 19(2) and (3) of the Law of Limitations Act Cap 89 RE 2019 exclude time for obtaining a copy of judgment and decree. In support of the argument cited the case of Alex Senkoro and others Vs Eliambuya Lyimo Civil Appeal No. 16 of 2017. In alternatively the applicant reiterated his submission in chief and has a view that this appeal has merit and prays this honourable court to nullify and quash the judgment and decree of trial tribunal with costs. Having summarized the parties' rival submissions, it is now time for this court to determine whether the appeal before this court is meritorious. Nevertheless, as the respondent herein objected that this appeal was filed out of time, I shall start to determine it first before going to the merit of this appeal. The respondent's counsel argues that this appeal was filed out of time for the reason that the impugned decision was delivered on 7th December 2022 while this appeal was filed on 5th day of February 2023, therefore the delay is 60 days. The appellant's counsel, on the other hand, submitted that in deed appeal was filed on the 5th day of February 2023, the appellant's counsel went on to state the decree which is a necessary document in appeal as per Order XXXIX Rule 1(1) of CPC Cap 33 RE 2019 was issued on 22 December 2022, therefore as per 10 section 19 (2) and (3) of the Law of the limitation Act Cap 89 RE 2019 time awaiting judgment and are excluded. I shall start with the issue of whether this appeal falls under the exclusion provided by sections 19 (2) and (3) of the Law of Limitation Act Cap 89 RE2019. The court records show decree was issued on the 22nd day of December 2022, I am inclined to join hands with the appellant's counsel that the time awaiting for decree falls under the exclusion in the computation of the time limit as provided by section 19 (2) and (3) of the Law of the limitation Act Cap 89 RE 2019 as ; "In computing the period o f limitation prescribed for an appeal, an application for leave to appeal, or an application for review o f thejudgment, the day on which the judgment complained o f was delivered, and the period o f time requisite for obtaining a copy o f the decree or order appealed from or sought to be reviewed, shall be excluded." In the above premises, this court is satisfied that the counting of 45 days from 22nd December falls into 5th February 2023. Since the last day to file this appeal was on 5th February 2023, this court is satisfied that the appeal was filed on time. The above said I now turn to determine the merit of this appeal, as to whether the trial tribunal was justified to hold that the respondent is the lawful owner of the disputed land. In the first ground the argument of the appellant that the chairman and assessors were impartial by cross-examining instead of asking for clarification. On the other hand, respondent faulted that no impartiality was shown by the chairman and assessors. I consider the argument of the appellant however appellant did not bring attention to the court as to the said questions made by the chair and assessors in the trial tribunal nor show to what extent her right was prejudiced on those discrepancies. I therefore find this ground to have no merit. On the second ground, no signature was endorsed by the trial chair, particularly on the testimony of PW2 and PW3. The claim was faulted by the respondent that the chairman endorsed the signature after the testimony of witnesses PW2 and PW3. I took time to go into the original handwritten proceeding when PW2 and PW3 testified, to ascertain if there were the said discrepancies raised by the appellant but it does not exist. The trial chair signed after the testimonies of witnesses (PW2) and PW3. Page 23 of the typed proceeding clearly shows that the trial chair signed the proceedings. I, therefore, find this ground to have no merit. 12 On 3rd ground, there was a change of chair during the trial without notifying the reasons for the change, whereby the respondent faulted the chair who started taking the evidence as the one who wrote the judgment. The honourable V.A. Ling'wentu took only initial proceedings in the case and argued that order XVI11 Rule 2 of the first schedule was intended for hearing and judgment and not initial proceedings. I would subscribe to the position of the appellant however it is the position of law as to now failure to give reasons is not fatal. On the 4th ground, the appellant argued that the trial chair did not read during trial the fact in dispute and not in dispute to render the proceedings nullity, the respondent herein argued that the trial chair on 31st May 2022 recorded regulation 12(1) and (2) of Land Dispute Courts (District land and housing tribunal) Regulation GN 174 of 2003 complied with, that means it was read and explained to the respondent. I had time to go to the trial proceedings on page 8 whereby the trial chair recorded regulations 12(1) and (2) complied with and joined hands with the respondent herein that the requirements were complied with, I, therefore, find this ground to have no merit. On the fifth ground that the assessor's opinion was not recorded, the respondent faulted the argument and made reference to page 38 of trial tribunal proceedings justifying the argument. I visited the trial tribunal 13 proceedings on pages 22 and 38, it is clear that the assessors were given a chance to give opinions and it was read before the court. I therefore find this ground also to have no merit. The court considers combining the 6th, 8th,9th and 10th grounds analyzing whether the suit land belonged to the appellant or respondent. The appellant argued the evidence was not evaluated and that, presented strong evidence in the trial tribunal to support her case, argued further the respondent herein did not discharge the burden of proof. On the other hand respondent argued presented evidence was strong and discharged on the required standard referring to the testimony of PW2, PW2 and PW3 and the tendered sale agreement between the appellant's father and the respondent. On the other hand, the appellant challenged the authenticity of the said sale agreement as it was written in English while the parties to the agreement don't know English and it was not endowed by the village chair and prayed this court to reevaluate the evidence. The testimony of PW1 in the trial court that the suit land was bought by his husband who is deceased, however, she never testified as to how it came into her hand. It was also a testimony of PW3 a lawyer that in 1994 the respondent husband Gadiel Axweso visited his office and engaged him to write a sale agreement of suit land of 6 acres for 14 the price of 200,000. The said contract was tendered by PW2 who is the respondent's son and identified by PW3. During cross-examination PW3 testified that the village council was not involved in the sale agreement, the contract was in English and the parties did not know English. He further testified before the sale agreement, the respondent's husband was the lessee on the said land, the lease was for 150,000 and ended in 1992. Two years later the parties entered into a sale agreement, however testified to have not seen the lease agreement. PW4 the village security personnel testified the appellant Victoria Thomas brought the claim over the suit land of seven and a half hectares in 1992 when his father was still alive, Appellant Victoria Wrote a letter to the respondent's husband that the leased suit land be returned to her. In cross-examination, testified the village land cannot be sold without the approval of the village council. On the other hand, it was the testimony of the appellant herein that the dispute started in 1992. The land belonged to her, it was acquired from her father who was given by the village council. The giving was witnessed by village chair Christopher Awe Leons Dume member of his family and ward executive officer Pius Joseph (DW2) and DW3 who appeared before the court and testified to have witnessed the giving of the said land from Thomas Erro to Victoria Erro. The appellant 15 tendered the document showing that the land was given to her in 1992 and she was still using the land till now. It was admitted as Exhibit Dl. That her father admitted to having leased the land and not sold the land to Axweso. Testified the tendered sale agreement of 1994 was written in English his father doesn't know English and no village council were involved in the sale agreement of the said Suitland. From the above-analyzed evidence there are two tendered documents proving ownership of suit land, the sale agreement (exhibit PW1) Vs the transfer of land from the appellant's father to the appellant's (Exhibit Dl). It was in the argument of the appellant that the sale was not authentic and it was the argument of the respondent that the sale agreement had all the qualities of a contract, the fact that it was not endorsed by the village chair cannot invalidate the contract. The appellant brings persons who witnessed the giving of the land from his father to her before the court, however, none of the persons who witnessed the sale agreement was called to testify before the court. Further, the fact that dispute over the suit land arose in 1992 when the appellant father and respondent husband were alive, and the fact that the appellant father wrote a will before his death and considering that there is no evidence as to co-ownership of the Suitland between respondent and deceased husband and there was no document showing 16 transfer from between them nor an endorsement of the said sale agreement between appellant father and respondent-husband and the fact that those who witnessed the sale agreement none of them was brought before the court undermined the credibility of respondent's evidence, creating probability that the land belonged to the appellant. In Paulina Samson Ndawanya v. Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 (unreported), held that; "It is equally elementary that since the dispute was in the civil case, the standard o f proof was on a balance o f probabilities which simply means that the Court will sustain such evidence which is more credible than the other on a particular fact to be proved" Am inclined to view that the evidence o f the appellant in these grounds as more credible and worthy to be sustained Further, the position of law is clear that the sale agreement on un surveyed land or village land without village chair approval is contrary to section 142(1) of the Local Government (District Authority) Act Cap 287 RE 2002, that, the purported sale agreement was supposed to be approved by the village council as correctly submitted by the second 17 respondent. Section 142 (1) of the Local Government (District Authorities) Act Cap. 287 R.E. 2002 provides; "Village council is the organ that vested all executive power in respect to all the affairs and business o f a village. " Under normal circumstances, it was expected for the appellant after he had executed the purported sale deed with Thomas Error, to present the document to the village council for endorsement. However, the appellant did not comply with this requirement. It is my view that the village council, as the body responsible for administering affairs and business of the village including land issues, must approve land transactions to ensure compliance with local laws, protect communal land rights, and prevent unauthorised transfers. This was not done to the lender the agreement was questionable. Based on the said spirit, it is my view that the failure to endorse the sale agreement may discredit the agreement at the expense o f the endorsed one, that is to say, the value o f the appellant's endorsed tendered document proving ownership o f suit land in the trial tribunal 18 is higher than an endorsed document tendered by the respondent herein. On the 7th ground that the tribunal erred in law and fact for failure to rule out on issue of misrepresentation, fraud, lack of consent and lack of knowledge over exhibit P2 purported sale. I would agree with the respondent's argument that it was not raised during the trial but during analysis as to the authenticity of the sale agreement, the trial chair would consider that. I therefore find this ground to have merit. From the evidence of the parties, it is my considered view that the dispute between the parties is on whether the suit land belongs to the appellants or the respondents. The appellant presented strong evidence compared to the respondent as to the proof of giving from his late father and tendered exhibits to the effect of owning the suit land which was admitted before the court. From the submission of the parties and record of this appeal, and taking into consideration the position of the law on ownership of land, this court sees there is a reason for faulting the decision of the trial tribunal that the appellant herein sufficiently proves his ownership over the land in dispute. Therefore, it is the finding of this court that the suit land belonged to the appellant herein Victoria Erro. That said I also find merit in this appeal and it is hereby allowed with costs to the respondent. It is so ordered. It is so ordered. v ' “ 'v v ^ - ' V t) 'X " 0. NDUMBARO JUDGE 16/10/2024