Land Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM LAND APPEAL CASE NO. 19864 OF 2024 (Arising from the proceeding and Orders of the District Land and Housing Tribunal for Terneke in Land Application No. 88 of2023) WEMA GASPER............................................................. APPELLANT VERSUS MARIAM HEMEDI RESPONDENT JUDGMENT Date of last Order: 29/08/2024 Date ofJudgment: 10/12/2024 LALTAIKA, J The Appellant herein WEMA GASPER is dissatisfied with the decision of the District Land and Housing Tribunal for Temeke (the DLHT) in Land Application No. 88 of 203. She has appealed to this Court by way of a Petition of Appeal containing three grounds. In spite of the grammatical and typographical errors, I choose to reproduce them bellow for ease of reference and record keeping: Page 1 of 11 1. That, the Trial tribunal erred in law and facts when failed (sic!) to consider that the Respondent is not entitled to any relief because he (sic!) is not the owner of the disputed land. 2. That the Trial tribunal court (sic!) has no jurisdiction (sic) to entertain the matter. 3. That the Trial Tribunal erred in law and facts when failed (sic) to evaluate, analyses (sic!) and consider weight of evidence adduced by the Appellant. When the appeal was called for mention on 21.10.2024, Ms. Kalekwa Ibrahim Lwinga, learned Advocate, appeared for the Appellant. Ms. Theresia Christopher Kihomwe, learned Advocate, appeared for the Respondent albeit holding brief for her learned friend Ms. Amina Mohamed Mkungu. Parties opted for hearing by way of written submissions. With a nod of approval by this Court, the following schedule was ordered: Appellant's written submission in chief: 4/11/2024 Respondent's Reply: 18/11/2024, Appellant's rejoinder if any: 25/11/2024 Mention for necessary orders to fix the date of Judgment: 25/11/2024 at 10:00 AM. I hereby register my commendations to Counsel for their spotless compliance with the scheduled order. This positive habit of time Page 2 of 11 management, which is growing among Counsel in this country, is essential to enable this Court to fulfil its constitutional mandate of timely dispensation of justice. The next part of this Judgment is, in that order, a summary of submissions by the parties, my analysis of the law and the verdict. Ms. Lwinga, Counsel for the Appellant, started with the first ground of appeal asserting that the trial tribunal erred in law and fact by failing to consider that the Respondent was not entitled to any relief as he was not the owner of the land. She cited the legal principle that the burden of proof in civil cases lies on the party making the allegation, as supported by Godfrey Sayi v. Anna Siame (Civil Appeal No. 114 of 2014, CAT) (unreported) and Salum Mateyo v. Mohamed Mateyo [1987] T.L.R. 111. Ms. Lwinga contended that the Respondent failed to produce any evidence proving ownership of the business frame or any tenancy arrangement with the National Housing Corporation. She added that being a trespasser, the Respondent was not entitled to relief. Referring to Joseph Alphonce & Another v. Mariamu Masanja (Misc. Land Appeal No. 21 of 2021) [2022] TZHC 12042 (10 June 2022), she highlighted that a certificate of title serves as conclusive evidence of ownership. Page 3 of 11 She further cited Magreth Master Bebi (Administratrix of the Estate of the Late Saada Katema) v. Safia Ally (Land Case No. 05 of 2022) [2023] TZHC 22582 (13 November 2023), which affirmed that trespass to land constitutes interference with possession without lawful justification. She argued that the Respondent, having no legal justification for constructing a business frame on land owned by the National Housing Corporation, could not be declared the owner of the disputed property. Moving on to the second ground, Ms. Lwinga argued that the trial tribunal lacked jurisdiction to entertain the matter since the land in question belonged to a public institution—the National Housing Corporation. She referred to Section 7 of the Government Proceedings Act [Cap. 5 R.E. 2019], which provides that civil proceedings against the government or public institutions may only be instituted in the High Court. She asserted that upon realizing the disputed area belonged to the National Housing Corporation, the tribunal should have informed the parties and declined jurisdiction. Regarding the third ground, Ms. Lwinga submitted that the trial tribunal erred in failing to evaluate the evidence adduced by the Appellant. She stated that the Appellant had stopped paying rent to the Respondent Page 4 of 11 based on instructions from the National Housing Corporation, which was the rightful owner. This, Counsel asserted, was supported by evidence from a local government leader, Ally Kibwana. She also emphasized that any contract for the disposition of land must be in writing, as required by Section 64 of the Land Act [Cap. 113 R.E. 2019]. Based on her submissions and the authorities cited, Mrs. Lwinga prayed that the appeal be allowed with costs, the decision of the trial tribunal be quashed, and the judgment set aside. Ms. Mkungu learned Counsel for the Respondent, on her part moved straight to the grounds of appeal starting with the first one. She argued that the records of the Tribunal do not indicate any claim by the Respondent to ownership of the land in question. Instead, the Respondents testimony, supported by her witnesses, clearly established that the disputed business booth was constructed by the Respondent in 2014 with permission from the National Housing Corporation (NHC) for business purposes within Temeke Municipality, like other individuals. Counsel emphasized that this position is corroborated in the Tribunal's judgment, particularly on page 5, which records: "SMI anachodai yeye ni Page 5 of 11 mmiliki wa kibanda cha biashara alichojenga kwenye eneo la NHC," meaning that SMI claims to own the business booth constructed on NHC land. Counsel further submitted that it was undisputed in the Tribunal records, particularly the pleadings, that the Respondent constructed the business booths. She emphasized that the Appellant herself admitted to taking over the Respondent's booths under a rental agreement requiring a monthly payment of Tsh. 60,000. Counsel cited the principle of "Privity to Contract," arguing that parties are bound by the terms of their contract, and only those parties have the capacity to sue or be sued. To support this principle, she referenced the case of TWEEDLE v. ATKINSON (1861) EWHC QB J 57, where the doctrine of privity of contract was firmly established. She added that in the current matter, the Appellant willingly entered into a rental agreement with the Respondent and paid the agreed rental fee for four years, facts not disputed by the Appellant. Furthermore, Counsel highlighted that under Section 112 of the Evidence Act, Cap. 6 R.E. 2019, the burden of proof rests on the party asserting a fact. She reinforced this with the case of ANTHONY M. MASANGA v. PENINA (Mama Mgesi) and Another, Civil Appeal No. Page 6 of 11 118 of 2024, where the court held that the burden of proof in civil cases lies on the party alleging facts in their favour. In applying these principles, she submitted that the testimony provided by SMI and SM2 outweighed the Appellant's evidence, justifying the Tribunal's conclusion that the business booths belonged to the Respondent. This ownership was supported by the Appellant's admission that she had paid rent to the Respondent. Counsel posed rhetorical questions to underscore the Respondent's ownership of the booths, such as why the Appellant paid rent if the Respondent was not the owner. On the second ground of appeal, which challenged the Tribunal's jurisdiction, Counsel argued that the Tribunal had the requisite jurisdiction to entertain the matter. She dismissed the Appellant's arguments as misconceived, asserting that the claim arose from a breach of the rental agreement. Citing HOTELS AND LODGES (T) v. ATTORNEY GENERAL AND CHAPWAN HOTELS LIMITED [2013] TLR 250, she noted that jurisdiction must be deduced from the pleadings. Counsel reiterated that the Respondent had no cause of action against NHC under the privity of contract doctrine. To illustrate this, she relied on Page 7 of 11 COFACE SOUTH AFRICA CO. LTD v. KAMAL STEEL LIMITED, Commercial Case No. 108 of 2020 (Unreported), where this Court (His Lordship NANGELA, J.) stated that a stranger to a contract cannot sue or be sued based on its terms. Finally, addressing the third ground of appeal, Counsel maintained that the Tribunal had properly evaluated the evidence on record, including that provided by the Appellant, and reached a fair and just decision. She referenced HEMED SAID v. MOHAMED MBILU [1984] TLR 113, where the court observed that failure to call material witnesses could lead to adverse inferences. She argued that the Appellant failed to produce corroborating evidence or summon NHC officers, which weakened her case. In conclusion, Counsel urged the court to dismiss the appeal with costs. I have dispassionately considered the rival submissions in the light of the grounds of appeal. I have also thoroughly examined the lower Tribunal's records. The Appellant raised three grounds of appeal, all of which were vigorously contested by the Respondent. I will address each of them in seriatim. Page 8 of 11 On the first ground, the Appellant contended that the Tribunal erred in law and fact by failing to consider that the Respondent was not entitled to relief, as she is not the owner of the disputed land. This argument was met with the Respondent's assertion that the records unequivocally show her ownership of the disputed business booths, constructed with the permission of the National Housing Corporation (NHC). The principle of privity of contract, as articulated in TWEEDLE v. ATKINSON (1861) EWHC QB J 57, underscores that only parties to a contract can enforce its terms. It was undisputed that the Appellant had rented the booths from the Respondent under a contractual agreement and had paid rent for four years. This fact is consistent with the burden of proof principle under Section 112 of the Evidence Act, (supra). The evidence on record, particularly the Appellants own admission of paying rent, supports the Tribunal's finding that the Respondent owned the booths. Accordingly, the first ground lacks merit. On the second ground, the Appellant argued that the Tribunal lacked jurisdiction to entertain the matter. However, as the Respondent rightly submitted, jurisdiction is determined from the pleadings. In HOTELS AND LODGES (Supra), it was held that jurisdiction must be deduced from Page 9 of 11 the plaintiff's statement of facts. Here, the Respondent sought remedies for breach of a rental agreement, not ownership of the land. I would only add that those pleadings must be in line with the statute conferring jurisdiction to that Court or Tribunal. I short, the claim arose from a rental dispute, falling squarely within the Tribunal’s purview. In my reasoned opinion, the Appellant's attempt to implicate the NHC is untenable under the privity of contract doctrine, as emphasized in COFACE SOUTH AFRICA CO. LTD (Supra). This ground of appeal also fails. On the 3rd ground, the Appellant alleged that the Tribunal failed to evaluate the evidence properly. However, the Tribunal considered all material evidence, including the Appellant's failure to produce crucial witnesses, such as NHC officials, to corroborate her assertions. The decision in HEMED SAID (Supra) is instructive: failure to call material witnesses may justify adverse inferences. In this case, the Respondent presented cogent evidence supporting her claim to the business booths. The Appellant's failure to counter this evidence with credible proof leaves no basis for overturning the Tribunal's decision. Page 10 of 11 In the upshot, I entertain no doubt in finding that the Tribunal's decision was well-reasoned, legally sound, and supported by the evidence presented. The appeal is hereby dismissed with costs. It is so ordered. E.I. LALTAIKA JUDGE 10/12/2024 Court: Judgment delivered in Court Chambers this 10th day of December 2024 in the presence of Mr. Musa Ramadhani, learned Counsel for the Appellant, the Appellant, and the Respondent who appeared in person. Page 11 of 11