wales yohana kimea vs khalfan salim wema 2011 tzhc 2120 1 july 2011

IN TH E UIGII COURT OF TANZANIA AT TANGA LAND CASE APPEAL NO. 4 OF 2010 Tanga District: at Tanga in Land Case No.79 of 2008) WALES YOHANA KIMEA APPLICANT VERSUS KHALFAN SALIM WEMA RESPONDENT JUDGMENT Date of last order: 15/06/2011 Date of Judgment: 01/07/2011 Teemba, J; The appellant filed application No. 79 of 2008 at Tanga District Land and Housing Tribunal claiming interalia for vacant possession of plot No.499 situated at Kange in Tanga Region the Respondent. The trial District Land and Housing Tribunal received evidence and determined the application in favour of the Respondent. Dissatisfied, the appellant lodged this appeal challenging the decision of the District Land and Housing Tribunal under the following grounds of appeal:- 1. That the trial chairman misdirected himself in law and facts when he entertained a suit which was supposed to be entertained in the Ward Tribunal. 2. That the trial chairman erred in law and facts in that he refused the application by the applicant to visit locus in quo. 3. That the Trial Chairman erred in law and facts in that he took over the matter while the former chairman who was entertaining the matter was not rejected by any party. 4. That the-trial chairman erred in law and fact in that he failed to consider the evidence of the decision of the Ward Tribunal on which the village leaders were witnesses. 5. That the trial chairman erred in law and fact in that he did not consider the evidence that Andrea Mapunda had no piece of Land in the disputed area. Briefly in 2004 the respondent purchased the plot in dispute to the tune of Tshs.60,000/= from one Oiiva Roman through Andrea Mapunda who was an agent. The same plot was purchased by the appellant in 2005 to the tune of Tshs.180,000/= from one Amani Mrisho. Such transactions were made prior to' the survey program at Kange area. The survey was carried out in 2006 whereas plots no.495, 497 and 499 were demarcated, the dispute over plot No.499 arose in 2007 when the Respondent consternated a foundation of his house in resolving the dispute between parties, the Village Government at Kasera in.which the plots are located, decided to allocate plots nos 495 and 497 the appellant. The appellant was dissatisfied with such decision;on the reason that he wants to retain plot no. 499 which is dispute. The district land and housing tribunal at Tanga decided the Respondent the lawful owner of plot no.499 hence this appeal. At the hearing of this appeal the appellant in person whereas the Respondent was in the services of Mr. Akaro learned counsel. The appellant abandoned the first ground of appeal and proceeded submitting on the second ground. The appellant contended that the plot in dispute was sold by two people and to different people and that he bought the Land in dispute from Amani Mrisho in the presence of^cell leaders. He added that in order to as certain as to who is the rightful owner of the plot, the Tribunal ought to have visited the hand to see the boundaries. 2 In reply co :he secona ground of appeal, Mr. Akaro submitted that the record does not show as to whether the appellant requested the District Land and housing tribunal to visit the Locus quo. He added that ’it is not mandatory for the tribunal to visit every land in dispute. The learnedcounsel referred this court to the case of Nizar M.H. Ladak V. GuiamaiiFaza! 2ann Nohamed [1980] TLR 29 and stated that in the instant case, there was no reason for the Tribunal to visit the Land in dispute. Going by the record, I did not see anywhere that either the appellant or his witness made any request' to move locus in quo. In the case of NIZAR VS. GULAMALI (supra) the Court of Appeal held: i). It is only in exceptional circumstances locus in quo, as by doing so a court may unconsciously take the role of a witness rather than an adjudicator; ii). where it is necessary or appropriate to visit a locus in quo the court should attend with the parties and their advocates, if any, and with such witness as may have to testify in that particular matter,......." As I said, there was no request to have the trial Tribunal visit the locus in quo. This idea is an afterthought. The Tribunal could not just visit the plot if there was no reason for it to do so. As to the third ground of appeal, the appellant submitted that there was no reason given by the chairman to withdraw from fhe case. He added that the new chairman took over the case after the appellant had complained against the forged documents. Mr. Akaro refuted such submissions and state that the first Chairman gave reasons for his withdrawal on page 2 of the trial proceedings to the effect that one of the parties was a friend of his relatives. 1 have no problem with the chairman's decision to withdraw from the conduct of the case. The reason given is transparent and was made for purposes of doing justice to parties. As to the fourth grouna of appeal, the appellant contended that he sued Amani Mrisho at Ward Tribunal for selling the same land time which was determined in his favour. He added that, the District Land and Housing Tribunal did not consider such piece of evidence and the documents which were tendered. Mr. Akaro learned counsel countered such submissions and stated that the chairman made it clear that the evidence was considered in the judgment. He added that the appellant should blame himself for bringing witnesses who were not helpful in his favour. ’ At to the fifth ground of appeal, the appellant submitted that Andrea Mapunda was a cell leader and his witness when he bought the Land in dispute. He added that he could not have witnesses the sale agreement and own him same plot. He further submitted that the Land was sold to the Respondent by the surveyors, he concluded by stating that since Andrea Mapunda did not own land in the area, it goes without saying that Oliver Romano and Khalifan Salim could not have land in the area. ' Mr. Akaro replied that Andrea Mapunda was not a witness at the trial. He added that the evidence shows that Mapunda sold-the Land owned by Oliva Romano but not his own land. Mr. Akaro further contended that Mapunda was just an agent and not owner. He concluded by urging this court to dismiss the appeal with costs. In rejoinder, the'appellant stated that Andrea Mapunda was not an agent but sold the Land as the owner. He added that Mapunda was not a witness in the Sale Agreement between Oliver Roman and Khalifan Salim. He concluded by praying for judgment and Costs in this appeal. it is also noted from record that the village government decided to rectify the situation by allocating other plots to the appellant and the respondent who had started to develop the plot in dispute was left on the suit plot. It is my considered opinion that this was the best way to solve 4 the dispute. There is no doubt that the appellant prefers to retain the plot but .logic and common sense do not support his wishes. Although highly disputed by the appellant, the sale agreement produced by the respondent shows that he bought the land on 12/5/2005 while the appellant's document reveals that he bought it on 03/08/2005. This means that the respondent was the first buyer and later followed by the appellant. Assuming that the first sale agreement was an offer, and then the subsequent sale would be invalid. I will consider the grounds numbers-four and five together. There is no doubt that the appellant bought the piece of land in dispute, it is also a fact, according to evidence on record, that the respondent was sold the same land. Both of them have sale agreements. It is on record that the appellant sued Amani Mrisho at the Ward Tribunal where he was declared the lawful owner. It is also common ground that the respondent was not a party in the suit and therefore his status on the land in dispute was not adjudged. it is further observed that this suit was filed at the District Land and Housing Tribunal by the appellant. His witnesses AW2 and AW3 told the Tribunal that the respondent legally bought the land in dispute and AW1 was a witness. AW3 also confirmed that the land in dispute was sold two different people and this happened due to the disturbance caused to boundaries during survey. In the absence ’of any evidence that the respondent obtained the plot illegally, I agree with the lower trial Tribunal that it was fair for the applicant to be reallocated another plot close to his second plot. For the foregoing reasons, I am of settled mind that the appeal is devoid of merit. The same is dismissed but each party to bear costs. " R.A. TEEMBA, 3; 01/07/2011 5