Zakayo

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI LAND APPEAL NO. 7226 OF 2024 (Originating from Land Application No. 50 of 2022, District Land and Housing Tribunal for Babati at Babati) ZAKAYO TLUWAY.......................................................................... APPELLANT VERSUS YUDA AWARI.............................................................................. RESPONDENT JUDGMENT 18th September & 10th October, 2024 KAMUZORA, J. The appellant herein was dissatisfied with decision of the District Land and Housing Tribunal for Babati (hereinafter referred to as the trial tribunal) which declared the respondent herein as lawful owner of the suit land. Before the trial tribunal, the respondent sued the appellant for recovery of piece of land measuring about one (1) acre situated at Dumbeta village, Dumbeta ward in Hanang district in Manyara region (hereinafter referred to as the suit land). According to the respondent, he purchased the suit land on 02/06/1998 from one Agustino Patrice at the price of TZS 25,000/=. He used it peacefully until 2020 when the appellant trespassed into the suit land. Page 1 of 15 According to the respondent, after the appellant had trespassed into the suit land, he referred the matter for mediation before Dumbeta ward tribunal but no amicable solution was reached. In his written statement of defence, the appellant disputed the respondent's claim and contended that he cleared a virgin land in 1985 and since then, he has been occupying and utilizing the suit land. That, he installed biogas infrastructure in 2012 and planted fruits trees on the suit land. After hearing the parties, the trial tribunal declared the respondent as lawful owner of the suit land. The appellant preferred the instant appeal on three grounds of appeal and filed additional six (6) grounds of appeal. However, during hearing the counsel for the Appellant abandoned the 2nd and 3rd original grounds of appeal as well as 5th additional ground of appeal. The 4th additional ground was resolved by this court before proceeding with the determination of appeal thus, only 5 grounds of appeal need to be determined. I will therefore combine and renumber the grounds of appeal which were argued by the parties and in the sequence preferred by the counsel for the appellant during submission. 1. The trial tribunal erred in not visiting the locus in quo. 2. That, the trial tribunal erred in law in deciding in favour o f the respondent without clearly observing that there Page 2 of 15 was a documentary evidence tendered by the appellant for the development on the suit land. 3. That, the trial tribunal did not comply with Regulation 12(1)(2) and (3) o f GN. No. 174 o f2003. 4. That, the trial tribunal erred in law and in fact in deciding the matter in favour o f the respondent relying on contradictory evidence o f the respondent and his witnesses relying on sale without tendering the sale agreement. 5. The whole judgment and decree in Application No. 50 o f2022 involves serious irregularities and is tainted with illegalities and gross abuse o f court process. When the appeal was called for hearing, Mr. Raymond Kim learned advocate appeared representing the appellant while the respondent appeared in person. In his submission in support of appeal Mr. Kim started with the additional grounds. On the first grounds he faulted the trial tribunal for failure to visit the locus in quo. He submitted that, while the trial tribunal planned to visit the locus in quo, it failed to do so only for the reason that there was heavy rain but that was not a good reason not to visit the locus in quo because it did not rain the whole period. That, the disputed land is located near town thus, it was easy for the trial tribunal to visit the locus in quo. The appellant's counsel argued that the law requires that where it is Page 3 of 15 important for the court to visit the locus in quo, the court has to comply. To buttress his argument, he referred the decision of this court in the case of Roberth Rwabutara Vs Jesca Juma, Misc. Land Appeal No. 14 of 2021 [2022] TZHC 388, in which reference was made to the case of Nizar M. H Vs. Ladack Gullamali Fazar Mohamed, [1980] TLR 29. He was of the view that, it was important to visit the locus in quo because while the appellant claimed to have constructed bio gas and a house in the suit land, the appellant claimed to have a cattle boma in the suit land. On the second ground, the learned advocate submitted that the trial tribunal failed to consider the document which he referred as a certificate for biogas that was tendered by the appellant proving that, the bio gas project was surveyed by GPS and had coordinates. Referring sections 100 and 101 of the Evidence Act, [Cap 6 R.E. 2022], the appellant's counsel argued that, where there is documentary evidence, oral evidence cannot be considered for the documentary evidence supersedes oral evidence. He contended that, in the instant matter, the trial tribunal considered oral evidence of Agustino that he is the one who sold the suit land to the respondent and ignored the existence of the document from the appellant proving that he was the owner of the suit land. Page 4 of 15 On the 3th ground, the learned advocate argued that the trial tribunal contravened Regulation 12 (1)(2)(3) of the Land Disputes (District Land and Housing Tribunal) Regulations, GN No 174 of 2003 (hereinafter referred to as the Regulations) which requires the tribunal to read the complaint to the parties before hearing. Referring the proceedings of the trial tribunal of 10/07/2023 and 11/09/2023 the learned counsel submitted that, only issues were framed and hearing commenced without reading the complaint to the parties hence, contravening the above provision. On the 4th ground, the learned advocate submitted that, the respondent testified before the trial tribunal that he purchased the suit land from Augustino and his wife in 1998 and in 2020 is when they recorded the sale agreement. That, the written contract if any, was an afterthought and it was staged to deny the appellant his right. He explained that, while the respondent claimed that the agreement was made before the court, he did not mention the name of the court. That, the decision of the trial tribunal considered that evidence while it was cooked. That, since the respondent and his wife claimed to have contract of sale, it was expected for them to present the said document as evidence but they failed. Page 5 of 15 Back to the original ground, the learned advocate reiterated his submission in chief and added that the proceedings and judgment of the trial tribunal were tainted with procedural irregularities which resulted into a wrong decision. He therefore urged this court to allow the appeal with costs. In his reply to the argument that the tribunal did not visit the locus in quo, the respondent submitted that, the appellant's advocate who was representing him one Mr. Mbeya agreed with the chairman not to visit the locus because by that time the situation at Hanang' was not good. That, there was heavy rain and a public announcement was made for people not to move around. That, the locus in quo was almost 3 kilometers from town thus they were unable to pay visit. On the argument that there was biogas and a house on the suit land, the respondent submitted that, the same was brought up by Mr. Mbeya but the biogas and the house are not within the disputed land. On the argument based on sale, the respondent submitted that the person who sold the suit land to him is Agustino Patrice and his wife Selina Bura. That, they sold the land to him on 02/06/1998 at the price of TZS. 25,000/- per one acre but at that time, the sale was based on trust thus, they did not execute any written contract. That, in 2020, they decided to Page 6 of 15 execute a written contract because they wanted their children to be aware of the sale to avoid future conflicts. That, they went to the court and recorded the contract before the resident magistrate but his document was among the properties stollen when the thieves entered his house. That, he reported to the police and he was issued with loss report. The respondent further submitted that, before the trial tribunal the appellant failed to describe boundaries of his land and even present witnesses who are his neighbours while he (the respondent) was able to present his neighbours as witnesses. That, the appellant's witnesses were unable to prove the boundaries to the suit land. That, the trial tribunal was correct in declaring him as the owner of the suit land for he has used the suit land for 22 years. He supported the trial tribunal holding which found the appellant a trespasser to the suit land. He thus, urged this court to dismiss the appeal with costs. In rejoinder, Mr. Kim reiterated his stance that visitation of locus in quo was necessary. He added that, it is not true that advocate Mbeya agreed not to visit the locus in quo because the proceedings of 20/02/2024 show that, it is the trial tribunal which opted not to visit the locus in quo. Page 7 of 15 I will begin my deliberation with the 1st, 3rd and 5th grounds of appeal which refer to procedural irregularities in which the appellant is faulting the trial tribunal for not visiting the locus in quo and for failure to comply with Regulation 12(1)(2) and (3) of the Regulations. The 2nd and 4th grounds will be argued jointly also for they refer to the evaluation of evidence. Starting with the 1st ground that the trial tribunal erred for not visiting the locus in quo, it is on record that after closure of the appellant's evidence, the learned advocate who was representing him, asked the trial tribunal to visit the locus in quo. Later on, the record reveals that the visit could not be done because of rain. The issue here is whether in the circumstance of the case, it was necessary for the trial tribunal to visit the locus in quo and failure to do occasioned failure of justice. I have gone through the pleadings filed before the trial tribunal and the evidence in general. The record shows that the advocate for the appellant requested for visitation of the locus in quo for purpose of observing if there was anything on the suit land. In his submission in support of the 1st ground of appeal the learned advocate for the appellant submitted that visiting the locus in quo was necessary to see if there was the bio gas and house constructed on the suit land. In my view, such purpose had nothing Page 8 of 15 to do with the size or location of the suit land. During hearing, neither of the parties testified on the boundaries meaning that no issue as regard to the location of the suit land. They both focused in proving ownership of the suit land. Therefore, whether there is anything constructed on the suit land, that is not the only determinant factor of ownership. In that regard, I do not see how failure to visit the locus in quo in the circumstance of this case occasioned failure of justice. The 1st ground of appeal lacks merits and it is dismissed. On the 3rd ground that there was non-compliance with Regulation 12(1)(2) and (3) of the Regulations, I have gone through the records and parties' rival submissions. According to the learned advocate for the appellant, the trial tribunal did not read the substance of the claim to the appellant as required by the said Regulation. For purposes of clarity, Regulation 12(1)(2) and (3) of the Regulations reads; "12. (1) The Chairman shall at the commencement o f hearing, read and explain the contents o f the application to the respondent, (2) The respondent shall, after understanding the details o f the application under sub-regulation (1) be required either to admit the claim or part o f the claim or deny, (3) The Tribunal shall - Page 9 of 15 (a) where the respondent has admitted the claim, record his words and proceed to make orders as it thinks fit; (b) where the respondent does not admit the claim or part o f the claim, lead the parties with their advocates, if any, to frame issues." I have gone through the record and found that it is true when hearing of the matter commenced on 11/09/2023, the substance of the claim was not read to the appellant as required by the above quoted Regulation. The issues were framed and hearing of the matter took off thus, a clear violation of Regulation 12(1)(2) and (3) of the Regulations due to such omission. However, I am aware of the provision of section 45 of the Land Disputes Courts Act [Cap 216 R.E 2019] which provides as follows; "No decision or order o f a Ward Tribunal or District Land and Housing Tribunal shall be reversed or altered on appeal or revision on account o f any error, omission or irregularity in the proceedings before or during the hearing or in such decision or order or on account o f the improper admission or rejection o f any evidence unless such error, omission or irregularity or improper admission or rejection o f evidence has in fact occasioned a failure o fjustice. " The above provision is clear that for the error, omission or irregularity to be considered as vitiating the proceedings or decision of the tribunal, it must be shown that it occasioned a failure of justice. In the matter at hand, Page 10 of 15 the issue is whether the omission by the trial tribunal to read and explain the contents of the application to the respondent occasioned a failure of justice. I understand the importance of reading the claim to the parties before hearing commence. It intends to raise awareness of the claim to the parties and allow the parties and the tribunal to set the basis for determination of the matter. I doing so, the respondent is reminded of the applicant's claim and asked to respond if there is anything undisputed before issues for determination are framed. This basically assist the parties and the tribunal to direct themselves on the real facts in issue. It is on record, that the appellant was served with the application form which was written in Swahili and the appellant who was ably represented by an advocate was able to file the written statement of defence disputing the respondent's claim. Before hearing had commenced, issues were framed. This means that, the appellant who was represented by an advocate, was very much aware of the respondent's claim from the beginning before hearing of the matter had commenced. Even his advocate could not point out whether there was failure of justice on the part of the appellant. I am therefore convinced that by the tribunal's failure to read the claim, no Page 11 of 15 injustice was occasioned to the appellant. The 3rd ground of appeal not merited and I dismiss it. Having determined the 1st and 3rd grounds, the 5th ground is superseded. Nothing was submitted by the appellant's counsel to justify the irregularities, illegalities and gross abuse of court process in the trial tribunal's proceedings, judgment and decree in Application No. 50 of 2022. I therefore find the 5th ground meritless as well. Turning to the 2nd and 4th grounds of appeal, the common complaint will entail re-evaluation of the evidence on record for the trial tribunal is faulted for failure to analyze the evidence on record and failure to consider the document tendered by the appellant. To him, the trial tribunal erred in declaring the respondent as the lawful owner of the suit land basing on sale agreement which was afterthought. In his decision, the learned trial chairperson was satisfied that, the respondent was able to prove his claim since he was able to prove that he purchased the suit land on 02/06/1998 from Agustino Patrice and his wife and the sale agreement was executed before Katesh Primary court. The respondent was the claimant before the trial tribunal thus, had a duty to prove on balance of probability that, he is the lawful owner of the Page 12 of 15 suit land. In his evidence, the respondent claimed to have purchased the suit land from SM2 one Agustino Patrice on 02/06/1998. This piece of evidence was supported by SM2's wife who testified as SM3. She narrated that she and her husband (SM2) sold the suit land to the respondent. As per the respondent's evidence, the sale took place in 1998 but document officiating the sale was executed 2020. It is on record that when the respondent sought to tender the said sale agreement, the same was not admitted following an objection from the appellant's advocate. Nothing shows that the trial tribunal relied on the sale agreement when deciding this matter. It only considered the evidence by SM2 and SM3 that they sold the suit land to the respondent and they officiated the sale before the court. Their evidence was supported by SM4 one Paulo Ama Mori who claimed to have witnessed the execution of the agreement. This imply that even in the absence of the sale agreement, the trial tribunal believed on the oral evidence by SM2 and SM3 that they sold the suit land to therespondent. I am inclined to agree withthe trial tribunal's holding based on the oral account of the respondent and his witnesses as it sufficiently proved that he purchased the suit land. In his evidence, SM2 explained how he acquired the suit land as he claimed that he was allocated the land by the village council in 1993. Such piece of Page 13 of 15 evidence was not challenged by the appellant through cross examination, hence reliable. It is trite law that failure to cross examine the witness on important facts amounts to acceptance of such facts. In his evidence the appellant just claimed that he cleared the virgin in 1985. Nothing proves that he has been in occupation and use of the suit land since 1985. He presented two witnesses before the trial tribunal. SU2 claimed to have been assisted to install the bio gas infrastructure on the suit land. During cross examination SU2 admitted that he did not know how the appellant acquired the suit land. SU3 claimed that he used to purchase maize from the appellant but could not explain the issue as to ownership for he admitted that he did not know the neighbors to the suit land. I agree with the trial tribunal's holding that the respondent's evidence if compared with the appellant's evidence, the respondent's evidence seem stronger than that of the appellant. In his submission, the learned advocate for the appellant faulted the trial tribunal for failure to consider the certificate for biogas which was tendered by the appellant showing that it was surveyed by GPS and had coordinates. As correctly submitted by the learned advocate, the trial tribunal chairperson did not say anything regarding that document. This court Page 14 of 15 therefore assessed the said document and discovered that the same does not establish the appellant's ownership of the suit land. The said document is titled as "HATI YA UMILIKI WA MTAMBO WA BIOGESI" referring ownership of bio gas infrastructures. That in itself does not prove that the owner of the referred infrastructures is the owner of the suit land. From the above discussion, I find that the 2nd and 4th grounds appeal to have no merits and are dismissed. In the upshot, I find the appeal lacking in merits and I proceed to dismiss it with costs. DATED at BABATI this 10th Day of October, 2024. Page 15 of 15