ZAMBIA WILIBARD JUDG final

IN THE HIGH COURT OF TANZANIA (SUB - REGISTRY OF GEITA) AT GEITA LAND APPEAL NO. 11557 OF 2024 (Appeal from the decision of the District Land and Housing Tribunal for Geita at Geita, in Land Application No. 08 of 2022, Hon. Masao-Chairman) ZAMBIA WILIBARD ATHANAS............................... 1st APPELLANT MONICA BOKA......................................................... 2nd APPELLANT VERSUS SOPHIA KULWA KASABANO.......................................RESPONDENT JUDGMENT Date of last Order: 11/06/2024 Date of Judgment: 08/07/2024 K, D. MHINA, J. This is the first appeal, a pivotal moment stemming from the decision of the District Land and Housing Tribunal (henceforth the DLHT) for Geita in Land Application No. 08 of 2022. At the trial, DLHT, the respondent, sued the appellants for recovery of the unregistered land measuring 129 to 80 feet, located at Mtakuja Street-Katoro within the District of Geita (hereinafter to be referred to as the suit land), which was allegedly trespassed by the 1st appellant. Briefly, the respondent claimed to have purchased the suit land jointly with her late husband, Sami Lushika, from the late Mhela. She alleged that in 2016, she and her late husband purchased the suit land orally for TZS. 400,000/= in the presence of the witnesses. Further, after the death of her husband, at the clan meeting, it was acknowledged that the suit plot belonged to her. In November 2021, when she paid a visit to the suit land, she found the suit land was trespassed by the 1st appellant. When she inquired from the 1st appellant, he told her he was not a trespasser and bought the suit land from the 2nd appellant. That triggered the respondent to seek relief from the DLHT, praying, inter alia, for a declaration that the 1st respondent was a trespasser and that she was the lawful owner of the suit land. In their joint reply, the appellants vehemently disputed the claim, standing firm in their belief. They alleged that the 1st appellant lawfully purchased the suit plot from the 2nd appellant, who was authorised by the late husband of the respondent for TZS. 1,000,000/=. They further alleged that the sale was witnessed by the Chairman of Mtakuja Hamlet at Katoro. The above "cause ceiebrd' put the parties at issue, and both presented their testimonies before the trial DLHT. After a full trial, the DLHT decided the dispute in favour of the respondent. Consequently, it declared and ordered as follows: one, the respondent was the lawful owner of the suit land; two, the sale of the suit land between the 1st and 2nd appellants was illegal; three, the 1st appellant was a trespasser; and four, the 1st appellant to vacate from the suit land and hand it over to the respondent. Dissatisfied, the appellants appealed before this court and presented four grounds of appeal as follows: - i. That tiie Honorable chairman made a mistake in Law and fact by ruling in favor of the Respondent, despite the Respondent's failure to establish its case to the required standard. ii. That the Honorable Chairman erred both legally and factually when he decided to rule in favour of the Respondent based on flimsy evidence presentai by PW1 and PW2. iii. The Honorable Chairman erred in Law and fact by pronouncing the judgment without considering the accessors' opinion. iv. That the Honorable Chairman erred in Law and fact by ruling in favour of the Respondent without evaluating and considering the evidence of the 1st and 2fd Appellant. At the hearing, the appellants were represented by Mr. Daniel Malugu and Mr. Sunday Ulomi Advocates, while the respondent had the service of Mr. Yesse Robunda Advocate. Further, the appeal was argued by way of oral submissions. Before the hearing, Mr. Malugu prayed to abandon the 4th ground of appeal. He then jointly argued the 1st and 2nd grounds and left the 3rd ground to be argued by his colleague, Mr. Ulomi. Arguing the 1st and 2nd grounds of appeal, Mr. Malugu submitted that in civil cases, the person who alleges must prove the case balance of jP_a g_e_ | 5 probabilities under sections 110 (1), 112, and 115 of the Tanzania Evidence Act. He explained that at the trial, the respondent failed to prove her ownership of the suit land located at Katoro because she did not tender any document to prove her ownership. Referring to pages 15 and 16 of the DLHT proceedings, he argued that the respondent informed the DLHT that she purchased the suit land with her husband in 2016 by oral agreement. From above, he submitted that an oral contract cannot prove land ownership because section 64 (1) (a) and (b) of the Land Act requires the sale agreement to be in writing, and parties must sign; therefore, the DLHT erred in believing that it is sufficient proof of ownership. Amplifying further on the grounds of appeal, he stated that the respondent indicated that the land was divided after her husband passed away. Still, she did not state if the land in dispute was divided and given to her. Further, no relative from her late husband or children testified and proved that she was given/ allocated the land in dispute, considering the late husband had more than one wife. Arguing the 3rd ground, Mr. Ulomi stated that the record of the DLHT indicated that the assessors opined that the land was sold lawfully to the 1st appellant by the 2nd appellant. However, the Chairman of DLHT did not consider that opinion and why he departed from the assessor's opinion. To bolster his argument, he cited the decision of the Court of Appeal Elilumba Eliezel vs. John Jaja, Civil Appeal No. 30 of 2020 (Tanzlii), where it was held that the DLHT Chairman must record the reason for departing from the assessors' opinion. Faulting the DLHT decision further, he submitted that the failure was contrary to section 24 of the LDCA, Cap 216, which requires the DLHT Chairman to give reasons if he departs from the assessor's opinion. He stated in the instant appeal that the trial chairman did not explain why he had departed from the assessors' opinion. In addition, he submitted that the assessors' opinions were not recorded in the proceedings, and that was contrary to the cited case of Elilumba (Supra) and the High Court case of Hosea Andrea Mushongi vs. Charles Gabagambi, Land Appeal No. 66 of 2021 (Tanzlii). Page |7 He concluded by submitting that the failure was fatal because the DLHT relied on assessors' opinions that were not recorded in the proceedings. Responding to the submissions, Mr. Robunda started to submit on the 3rd ground of appeal by arguing that in section 24 of Cap 216, the DLHT must consider the assessors' opinions. However, the opinions are not binding, but the chairman must give reasons for not considering them in case, of departure. He stated, in the instant appeal, that the trial chairman acknowledged the presence of the assessors' opinions as indicated on pages 11 and 12 of the DLHT judgment. Further, on page 28, the chairman gave reasons for departing from the opinion. His reason was the evidence adduced on the ownership of the land. Therefore, that was the reason, and the chairman indicated so in the judgment. Thus, section LDCA, Cap 216, was compiled. Explaining further, he stated that assessors' opinions were handwritten by themselves, and they read their opinions at the trial. The presence of the handwritten opinion in the case file became part of the proceedings. Therefore, an act of not recording the opinion in the proceedings did not prejudice any part of the proceedings and cause the proceedings and judgment to be null unless the opinions are nowhere to be found in the proceedings or court file or were not read at the trial. From the above, he stated that the cited case of Elilumba (Supra) is distinguishable because the assessors' opinions were not found anywhere in that case. In this appeal, the opinions are in the case file and were read to the parties. Replying to the 1st and 2nd grounds, he submitted that the respondent proved the case on the balance of probabilities. Further, he stated that it is the law under section 43 of the Tanzania Evidence Act that no number of witnesses is required to prove the case. He explained that at the trial, the respondent proved the case by testifying that she purchased the land in dispute in 2016 together with her late husband, who died in 2016. Her evidence was corroborated by PW2, who witnessed the sale and was tasked with guarding the suit land. _P_a g e [ 9 Furthermore, he submitted that at the trial, it was not disputed that the respondent was the wife of the late Sami Shija and that Sami Shija owned the land. He insisted that if spouses own the property and one dies, the interest shifts to the remaining spouse. The evidence from the respondent was not disputed at the trial; she was not cross-examined on that issue, and the appellants failed to tender counter-evidence on the ownership of the land in dispute. Thus, her evidence was taken to be proved as per the case of the Court of Appeal in Astepro Investment Co. Ltd vs Jawinga Co. Ltd, Civil Appeal No. 8 of 2015 (Tanzlii). Amplifying further, he stated that at the trial, DWl's evidence contradicted DW2's. While DW1 stated that he purchased the land from DW2, DW2 stated that she did not sell the land to DW1 but only received money. Therefore, their evidence was doubtful as per the decision of the Court of Appeal in Vuyo Jack vs. The DPP, Criminal Appeal No. 334 of 2016 (Tanzlii). He concluded by submitting that both DW2, DW3, and DW4 admitted that the suit land belonged to the late Sami Shija, the respondent's husband. Therefore, in such circumstances, the 2nd respondent had no authority to sell that land. In a brief rejoinder, Mr. Ulomi insisted that section 24 of Cap 216 requires the chairman to give reasons when the assessors' opinions are deferred and that acknowledgement of the opinion in the proceedings was not sufficient. He explained that there is a difference between discussing issues in the case and the assessors' opinions. Therefore, reasons for not considering the assessors' opinions must be given. He further submitted that even if the opinions were in handwriting, they should be recorded in the proceedings, and failure to do that equals the absence of opinion at the trial. The absence of opinions prejudices the parties in that there is doubt whether the judgment reflected what was opined. Therefore, the cited case of Elilumba (Supra) is fit in the circumstances of this case, and the principles are relevant. On his side, Mr. Malugu submitted that the respondent failed to tender any exhibit if the land was given to her after the death of her husband. Further, the late Sami Shija had four wives; therefore, it was important for the respondent to tender the evidence that she was given that land. He concluded by submitting that there were no contradictions between DW1 and DW2. In her evidence, DW2 was a broker who found the buyer and witnessed the sale. Therefore, the cited case, Vuyo Jack (Supra), is irrelevant. Having objectively gone through the grounds of appeal, the submissions by both parties and the entire records of appeal, I will start with the 3rd grounds regarding assessors, specifically on two issues raised: one, that the assessors' opinions were not in the court proceedings and two; the trial chairman did not record the reasons as to why he departed from assessors' opinion. The entry point in the first issue is 23(1) and (2) of the Land Disputes Courts Act Cap. 216 (LDCA), which provides for the composition of the District Land and Housing Tribunal (DLHT): "(1) The District Land and Housing Tribunal established under Section 22 shall be composed of one chairman and not less than two assessors. (2) The District Land and Housing Tribunal shall be dully constituted when held by a Chairman and two assessors and two assessors who shall be required to give out their opinion before the Chairman reaches the Judgment" [Emphasis provided] Further, Regulation 19(2) of The Land Courts (The District Land and Housing Tribunal) of 2003 provides that; (2) Notwithstanding sub-regulation (1) the chairman shall, before making hisjudgement, require every assessor present at the conclusion of hearing to give his opinion in writing and the assessor may give his opinion in KiswahiH" [Emphasis provided] On how to present the opinion, I quote the cited case of Elilumba (Supra), where the Court held that; "Us it can vividly be seen from the above except, the Chairman of the Tribunal did not invite the assessors to give their opinions as required by the law. Besides, no opinion could be traced in the record. It can only be gleaned from the record that the assessors who sat with the Chairman made participation by listening to the witnesses, asking questions but in the end, they were denied their statutory right of giving heir opinion in writing. Had it been that they were given such right, their opinion could be reflected in the record of appeal, particularly, the proceedings before the Tribunal". Further, in Emmanuel Christopher Lukumai vs. Juma Omari Mrisho, Civil Appeal No. 21 of 2013 (Tanzlii), the Court of Appeal held that; "Despite the Chairman's acknowledgement to have agreed with what the assessors opined, on record, their opinion is missing. Since die law requires assessors to give their opinion, in our view, it must be on record in order to ascertain if the Chairman, in preparing the Tribunal judgment, did consider the opinion of assessors. Besides, where the Chairman disagrees with the opinion of the assessors, he must record reasons. In the absence on record of the opinion of assessors, it is impossible to ascertain if they did give any opinion for consideration in composing the judgment of the Tribunal". Again, the Court of Appeal in Sikuzani Saidi Magambo and another vs. Mohamed Roble, Civil Appeal No. 197 of 2018 (Tanzlii) held that; "In the matter at hand, as we have vividly demonstrated above and also alluded to by both counsel for the parties, when the chairperson of the Tribunal dosed the defence case, he did not Page | 14 require the assessors to give their opinion as required by the law. It is also on record that, though, the opinion of the assessors were not solicited and reflected in the Tribunal's proceedings, the chairperson purported to refer to them in his judgment. It is therefore our considered view that, since the record of the Tribunal does not show that the assessors were accorded the opportunity to give the said opinion, it is not dear as to how and at what stage the said opinion found their way in the Tribunal's judgement It is also our further view that, the said opinion was not availed and read in die presence of die parties before the saidjudgement was composed". From the cited provision of law and case laws above, it is quite clear that; One, when the defence case is closed, the DLTH must require assessors to give their opinions. Two, the opinions must be in writing. Third, the opinions must be availed and read to the parties Fourth, the opinions must be on the record. Fifth, if the DLHT does not consider the opinions, it must give reasons for the departure. In the instant appeal, the record of the DLHT on page 49 of the typed proceedings reveals that on 16 November 2023, in the presence of the counsel for both parties, after the closure of the defence case, the matter was adjoined to 29 November 2023 for the assessors' opinion to be read. On 29 November 2023, in the presence of both parties and their advocates, the assessors, Mrs. Mary Masao and Mr. Deusdedith Butama, read their opinions. Further, upon further perusal of the record, I found the assessors' handwritten opinions duly signed and dated. In addition, on pages 11 and 12 of the impugned DLHT judgment, it was indicated that assessors gave their opinions, and what they opined was reflected. Flowing from above, it is crystal clear that the assessors' opinion was read and presented in writing as per the requirement of section 23 (2) of the Land Dispute Settlement Act and Regulation 19(2) of The Land Courts (The District Land and Housing Tribunal) of 2023. Further, the opinions not only reflected in the record that they were read but also the written opinions duly signed and dated by the assessors are in the DLHT record. Contrary to what was found in the cited cases above of Elilumba, Emmanuel Christopher Lukumai and Sikuzani Saidi Magambo (both supra), where the opinions were not either reflected in the proceedings or present in the court records. There was no trace of opinions in the records. On this, I wish to state that the case record does not mean only the proceedings; it also means documents duly received at the trial. In the circumstances of this appeal, the opinions of assessors were received and read to the parties on 29 November 2023; therefore, they form part of the DLHT record. The intention of the law is to require assessors to present their written opinions and not the DLTH to reproduce in proceedings what is contained in their opinions. Coming to the issue that the DLTD did not give reasons for departing from the assessors' opinions, this should not have taken me long. Briefly, on pages 11 and 12 of the impugned judgment, the DLHT chairman reflected on the assessors' opinions. After that, he analysed the evidence, reached his own conclusion, and gave a reason why he departed from the opinions. On page 28 of the impugned judgment, it is indicated that he considered the opinion, but he decided to depart after his analysis of the evidence on record. That passage reads "...Kwa mantiki hiyo na kwa kuzingatia ushahidi wa pande zote mbiii pamoja na maoni ya wazee wa Baraza hili, nipo kinyume na maoniya wazee...". Therefore, that was the reason, and there is a difference between giving the reason and being satisfied with the reason given. From the above discussion, the appellants' allegations in the 3rd ground of appeal are misconceived as they don't reflect the DLHT records. In fine, this ground fails. Reverting to the 1st and 2nd grounds, the main arguments by the respondent did not tender the document to prove her ownership, and there was no evidence to prove that the respondent was allocated the suit land after the death of her deceased husband while the deceased had four wives. Since the complaints are based on the analysis of evidence, this court, being the first appellate court, is supposed to step into the shoes of the trial DLHT and analyse the evidence. See Makubi Dogani v. Ngodongo Maganga, Civil Appeal No. 78 of 2019 (Tanzlii). Further, no sale agreement from the original owner to the late husband of the respondent was tendered at the trial. Therefore, since no documentary evidence was tendered at the trial on the originality of the ownership of the suit land, this court will place the oral testimonies from both sides under scrutiny and decide the issue on a balance of probabilities. In doing so, this Court will be guided by Section 110 (1) of the Evidence Act, Cap. 6 [R.E. 2019], which reads "Whoever desires any court to give judgment as to any legai right or liability dependent on the existence of facts which he asserts must prove that those facts exist" Similarly, I will be guided by the case of Hemedi Said vs. Mohamedi Mbilu (1984) TLR 113; it was held that; . "He who alleged must prove the allegation." Therefore, on the ownership of the suit land, the adduced evidence was as follows; At the trial, there was uncontroverted evidence that the suit land was purchased by the late husband of the respondent and the respondent. The respondent's evidence indicated that the purchase was made orally. Her evidence was corroborated by PW2, who was the witness to the sale. On their side, the appellants did not dispute that fact, nor did they dispute that the respondent was the wife of the late Sami Shija. They all testified that the deceased directed the 2nd appellant to sell the suit land. Therefore, flowing from above, One, by the principle of tracing. In certain circumstances, background checks and evidence of how a person acquired the land are necessary to establish how a person acquired that land. The suit land was purchased by the late Sami Shija and the respondent. Two, though no document was tendered at the trial, there was also no dispute that the suit land was purchased orally by the respondent and her late husband. In such circumstances, the resort is on the evidence to prove if there was indeed an oral agreement, and that is a correct position of law. On this, the online Law Dictionary, which featured the 2nd edition of the Blacks Law Dictionary, defined oral contract to mean; A contract agreed verbally, but not in writing, the existence of which can be difficult to prove as a result. If an ora! contract can be proven to exist, it may void a written contract and vice versa. That means it is a kind of contract agreed to via spoken communication but not written down and signed. The question is, what makes an oral contract to be enforceable? This Court, in Abdulahimu Rugaenda vs. Odetha T. Rugambwa, PC Civil Appeal No. 32 of 2021, Tanzlii (HC-Bukoba), held that; "For an ora! contract to be valid and enforceable, it must be proved by witnesses who were present during the formation of that contract" As I alluded to earlier, in his evidence in the instant appeal, PW2 stated that he witnessed the oral contract when the respondent and her late husband purchased the suit plot in 2016 from one Mhela. P_a g _e |_21 That "lands" me to whether the sale from the 2nd appellant to the 1st appellant was lawful. In her evidence, the 2nd appellant stated that on 29 August 2016, DW5, the younger brother of the deceased Sami Shija, told her that the deceased was selling the suit plot; she found the buyer and spoke with the deceased via the phone. Then, she sold the suit land to the 1st appellant for TZS. 1,000,000/=. On his side, DW5 stated that his brother sent him to sell the suit land, and he went to see the 2nd appellant so that she could find the buyer. The sale agreement, Exhibit DI, indicated that the seller was Monica Boka (the 2nd appellant) and the buyer was Zambia Willibard (the 1st appellant). From above, I agree with the DLHT decision that; One, it was unlawful to sell the suit land without the consent of the respondent, who had an interest in it since it was jointly acquired between her and her late husband. The issue that the deceased had four wives is immaterial since the plot was purchased jointly by the deceased and the respondent. As per the case of Selafino Mwitumba @Chuma vs. Salome Kivaye, Civil Appeal No. 36 of 2020, the respondent acquired an interest in the land after the passing of her late husband. Two, the sale agreement (Exhibit DI) does not indicate the 2nd appellant sold the suit land on behalf of the deceased. The agreement clearly indicates that the 2nd appellant sold that land as her property. Therefore, her oral testimony contradicts the sale agreement. From above, the 2nd appellant was wrong to assume the powers of the owner and sell the suit plot to the 1st appellant, as the trial tribunal correctly held. The 2nd appellant had no good title to pass to the 1st appellant. Therefore, my analysis of the evidence revealed that the suit plot was owned by the respondent and her late husband; it was sold without her knowledge and consent, and there was not even cogent evidence that there was authorisation to sell from the deceased and consented by the respondent. Therefore, the 1st and 2nd grounds also fails. From the above discussion, in totality, the appeal lacks merits; both grounds of appeal fail to persuade this Court to interfere with the decision of the trial DLHT. Consequently, I dismiss the appeal with costs. 08/07/2024 Court The right to appeal is fully INA JUDGE