zacheli s kalenga vs the registered trustees of evangelical lutheran church of tanzania iringa dioceses 2020 tzhc 3374 24 april 2020

IN THE HIGH COURT OF TANZANIA AT IRINGA LAND CASE NO 4 OF 2020 (Originating from the District Land and Housing Tribunal fo r Iringa at in the Land Application Case No. 39/2016) ZACHELI S. KALENGA 'i OMARY KALENGA J .................................... APPELLANT VERSUS THE REGISTERED TRUSTEES OF EVANGELICAL LUTHERAN CHURCH OF TANZANIA IRINGA DIOCESES .......... RESPONDENT JUDGMENT Date o f last order: 21/04/2020 Date o f Judgment: 24/04/2020 NGWALA, J In the District Land and Housing Tribunal for the Iringa Region, the Respondent, a legal body had applied for a declaration that they are owners of the disputed land located at Ilamba, within Kilolo District. They also claimed against the appellants for a sum of Tshs 5,000,000/= as specific damages for unlawful trespass into their land, recovery of a plot of land of about fifty (50) acres and compensation for harvested Black water trees and costs of the suit. 1 In their Written Statement of Defence, the appellants denied all the claims by the respondents. They argued that they could not be trespassers into their own land which the appellants had not paid full compensation in the year 2007. They averred that the respondents were not allocated the disputed land by the village council. The disputed land was the property of Zakaria Kihongosi who allowed the respondents/ applicants to plant trees. When the respondent/ applicant was required to return the disputed land to the appellant after having harvested the trees, the respondent refused to do so. The appellants averred further in their Defence that the compensation in the sum of Tshs 2,200,000/= was received by them as compensation for the Black Water Trees and not for the disputed land. For this reason they argue that they have the right to repossess the disputed land. The trial tribunal considered the evidence laid before it and decided against the appellant. Where upon the respondent’s claims were awarded. The suit was decided in favor of the respondents. The trial tribunal decreed the land to be of the applicants; now respondents. The appellants were ordered to pay the respondents the sum of Tshs 5,000,000/= as damages caused on the Suitland and the costs of the suit. 2 Subsequently, the appellants are challenging the decision of the tribunal in the Petition of Appeal on two grounds of appeal as follows “1. That, the trial chairman erred in law by leaving the assessors to decide the case without explaining in his judgment how he agreed with both assessors in reaching a final verdict. 2. That, the trial tribunal erred in law and fact by his failure to evaluate the strength o f evidence adduced by the appellants, hence erred in finding that the appellant were not the legal owners and occupiers o f the suit land” In support of the Appeal, the learned counsel who represented the appellants Mr, Suleiman Kaganda contended that the law makes it mandatory under Regulation 20(1) of the Land Disputes Court (The District Land and Housing Tribunal) Regulations, 2003, GN. No. 174 of 2003, that in considering the opinion of assessors, the chairperson must give his own reasons for the decision. The counsel argued that in the judgment by the trial chairperson, there is no indication that the trial chairperson addressed his mind to the evidence adduced by the parties, but rather, he only endorsed the opinion of assessors without applying his mind to the evidence on record. In support of the contention Mr. Suleiman Kaganda, cited the case of Rajab Dibagula v. R, Criminal Appeal No. 53 of 2001 (unreported) at page 21 of the typed judgment, where his lordship Samatta JA as he then was made reference to 3 the case of Symposium Nelson v. The Attorney General and Ibrahim Msabaha, Civil Appeal No. 29 of 1999 (unreported), on the contents of judgment that:- “.........A judgment must convey some indication that the magistrate has applied his mind to the evidence on record” On the 2nd ground, that the chairperson erred in evaluation of the strength of the evidence adduced by the appellants, Mr. Suleiman Kaganda, submitted that, the evidence of the appellants who were then respondents, established through the 1st appellant, DW1 that the land was borrowed from the elder Zakaria Kihongosi in 2006. This piece of evidence was disregarded. The trial tribunal did not make a critical analysis on the evidence of the respondents on how they got the disputed land from the village council of Kidabaga in 1980’s which is now Ilamba village, a fact which is not true, because the Ilamba village was in existence since the year 1975. Mr. Asifiwe Mwanjala, the learned counsel, who represented the respondent, disagreed with the submission by the counsel. He argued that the trial chairperson rightly agreed with the opinion of assessors and made his decision in accordance with the provisions of section 24 of the Land Disputes Court Act, Cap. 216 RE 2002. As the chairperson agreed with the opinion of asessors on the reasons stated in the judgment, the counsel asserted that the 1st ground is baseless. 4 On the second ground of Appeal, it is submitted by Mr. Mwanjala, that it was also baseless as the trial tribunal made a critical evaluation of the evidence adduced by both sides. He pointed out that the evidence of the appellants before the tried court was weaker than that of the respondents. Their evidence was full of contradictory statements as the witnesses had conflicting testimonies with each other. For example DW1 said that the land was borrowed from one Zakaria Kihongosi sometime in 1976 while DW2 said the land was borrowed to the elder Kihongosi in 1988, and DW3 said it was borrowed in 1989. It was contended that these contradictions clearly indicated that the appellants had a cooked up case. They were not the owners of the disputed land. Mr. Mwanjala submitted that, it is shown in the testimonies of both sides that the respondents had paid compesation to the tune of Tshs 2,200,000 in 2008, to resolve the dispute amicably, after the appellants claimed that the unoccupied land that was allocated to the respondents by the Kidabaga Village Council in 1983 belonged to their parents. On those basis the counsel for the respondents prayed for the dismissal of the Appeal with costs. In dealing with this Appeal, it is quite clear from the judgment that the trial chairperson had canvassed the agreed issues by analyzing the evidence as well as the opinion of assessors that answered the following three framed issues namely; - 1. Who is the owner of the Suitland? 5 2. Whether the respondents harvested the Black Water trees (miwati) worth Tshs 5,000,000/= and 3. To what reliefs are the parties entitled. The honorable assessors had each opined in writing in favour of the respondents. The decision of the trial tribunal therefore as rightly argued by the counsel for the respondent was in accordance with the wording of the provision of Section 24 of the Land Disputes courts Act, Chapter 216. Revised Edition 2002, which reads;- “In reaching the decision the chairman shall take into account the opinion of assessors but shall not be bound by it, except that, the chairman shall in the judgments give reason for differing with such opinion”. In this respect therefore, the trial chairman was not bound to give reasons for concurring with the opinion of the assessors in terms of the quoted provision of Section 24 of the Land Disputes Courts Act. In any way, the provisions of Regulation 20(2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003. GN No 174 2003 provides in mandatory terms on the Contents of the judgment that;- “The judgment of the tribunal shall always be short, in simple language and shall consist of:- a) A brief statement of facts b) Findings of the issues c) A decision and d) Reasons for the decision” 6 In this case, it is quite clear that, the style of the judgment that was adopted by the chairperson of the trial tribunal had the elements of judgment in law, as it considered the facts or evidence adduced the issue and arguments and the legal reasoning in resolving the issues raised. In writing its judgment, the chairperson used a very simple English language, with Swahili words that are understandable to the parties. The language used was the language of the tribunal as provided under Section 32 of the Land Disputes Court Act, Cap 216 R. E 2002. The chairman therefore, had complied with the mandatory provisions of the said Rule by elaborating the facts of the case, the findings on the issues, the decision and the reasons for the decisions when he held at page 3 of 5 of the typed judgment that:- “it has been proved, that the respondents without any justification entered into the applicant land and harvested trees and caused loss. The amount claimed o f Tshs 5,000,000/ = is proper”. Upon perusal of the evidence on record, specifically the evidence of DW1, and DW2, it is in record that the appellants have narrated clearly that “the land was given to Kihongosi who was only borrowed the land as the church elder, who later allowed the church to plant trees, from 1974 to the years 2002 and 2003, when the respondents harvested the trees. The Appellants trespassed into that land in 2003, claiming that the respondents who had harvested a lot of trees and made timbers, had failed to give the 7 appellants some money and even soap as person who had borrowed them about 30 acres of land in which they had planted trees on more than 50 or so acres after their father had died in 1998. It is in my considered view from my thorough reading of the evidence in trial tribunal record, that, the Appellants are claiming ownership of the land that has been in actual possession and occupation of the respondents for a very long period of over twenty nine (29) years when the dispute arose. The respondents, who have long occupied the land and planted the permanent trees, are entitled to the disputed land under the prescriptive right and the principle “quicquid plantatur solo, solo cedit”. - That whatever is planted in the ground belongs to the ground. That is all that is attached to the land including the trees that were planted by the members of the church, after the same was borrowed to Kilongosi, formed part of the land that was allowed to be taken by the church. Hence, the Appellants have no right to claim the land to be returned to them, after the respondents had harvested the trees in 2003, and were in the process to replant other seeds of the trees. It is on that respect, that upon examining the evidence on record, I find that the trial chairperson arrived at a correct decision. More so it should be noted in connection with the counsels for the appellant’s argument on the 1st ground of Appeal that the trial chairperson gave reason for the judgment, and he was not duty bound under the provisions of Section 24 of the Land Disputes 8 Court Act (Cap 16 R. E 2002) to give reasons for concurring with the opinion of Assessors. All in all, it is crystal clear that the grounds of Appeal lack merit as aforesaid. In the circumstances, this court has no other option except to dismiss this Appeal, with costs to follow events. That is the Appellants shall have to pay the respondents the costs of this Appeal. 9