zuhura idrisa halifa vs sharifu azizi halifa 2018 tzhclandd 12 16 february 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPEAL NO. 23 OF 2017 (From the Decision o f the D istrict Land and Housing Tribunal o f KHombero a t Ifakara D istrict in Land Case Appeal No. 73 o f 2016) ZUHURA IDRISA HALIFA.......................................... APPELLANT VERSUS SHARIFU AZIZI HALIFA......................................... RESPONDENT Date o f la st order: 30/11/2017 Date o fJudgm ent: 16/02/2018 JUDGEMENT Makuru, 3. This appeal traces its origin in the Ward Tribunal of Usangule in Application No. 7 of 2016 whereby the Respondent herein above successfully sued the Appellant for trespass of a piece land measuring about IV 2 acres. Aggrieved by the decision of the trial Tribunal the Appellant appealed to the District Land and Housing Tribunal whereby she lost again. She has appealed to this court on the following grounds: 1. That the District Land and Housing Tribunal erred in law and fact for reaching a decision without properly evaluating the evidence adduced by the Appellant in trial the Tribunal. 2. That the District Land and Housing Tribunal erred in law and fact to uphold the decision of Usangule Ward Tribunal by saying the disputed land was abandoned since the year 1974. 1 3. That the District Land and Housing Tribunal erred in law and fact to uphold the decision of Usangule Ward Tribunal relying on time limit for the Respondent occupying the disputed land. 4. That the trial Tribunal erred in law and fact for proceeding to determine the matter without proper forum. Both parties appeared in person, unrepresented and this court ordered that the appeal be argued by way of written submissions. In support of the first ground of appeal the Appellant argued that, from her testimony and evidence during trial the land in dispute belongs to her and her relatives, including the Respondent's father. According to her, the fact that the Respondent has been using the farm for a long period does not give him right of possession. She further argued that the allegation that the Respondent has been using the farm for a long period does not give him a right of possession so long as there are terms agreed of using the land, including taking care of it. It is therefore, the Appellant's contention that the first Appellate Tribunal failed to evaluate the evidence available on record. As for the second and third grounds of appeal, it is submitted that the aspect of time limitation is not applicable in the circumstances of this case because the disputed land was given to the Respondent by the Appellant on specific terms and conditions. According to her, the Respondent was just given the land for usufructual right. 2 On the last ground of appeal the Appellant argued that, the proceedings of Usangule Ward Tribunal were a nullity as the Tribunal was not properly constituted. Citing the provisions of section 11 of the Land Dispute Courts Act, Cap 216 R.E. 2002, the Appellant submitted that the trial Tribunal was constituted by only two women contrary to the above cited provision of law. In reply to the first ground of appeal the Respondent contended that, the trial Tribunal effectively considered the evidence adduced by both parties. As regards the claim of the Appellant that the Respondent was an invitee to the land, he argued that it was not proved by the Appellant and her witnesses. Considering the time the Respondent had occupied the land and his testimony that he was given the land by his grandfather, he was of the view that the lower Tribunals' decision was right. On the second ground of appeal, the Respondent submitted that, the disputed land was abandoned by the Appellant's father since 1974 when Operation Vijiji took place and the Appellant's family was shifted to Ngohelanga and given another piece of land. On the third ground of appeal it is submitted that, the Appellant's case is an afterthought because there is no document or evidence to prove that there was an agreement between the Appellant and Respondent that he was an invitee. As for the fourth ground of appeal it is submitted that, the Ward Tribunal was properly constituted as the composition of the same is governed by section 14 (1) of the Land Disputes Courts Act, Cap 216 R.E.2002. 3 In rejoinder the Appellant reiterated his submission in chief and insisted that the disputed land was not abandoned but it was all along being used by family members for cultivation. Having considered the contending submissions of both parties as well as the entire record of this case, I will now determine the grounds of appeal raised. The first and second grounds are purely based on the weight of evidence. I will thus combine and consider them together basing on the evidence available on record. The Respondent was the complainant in the trial Tribunal. His case was based on evidence that, he was given the disputed land by his grandfather in the year 2000 and he has been cultivating the same until 2015 when the Appellant trespassed therein. Mr. Marijani Ngayela testified for the Respondent. He stated that he was the Respondent's uncle and Appellant's brother. This witness testified to the effect that in 2000 the Respondent and one of his sisters by the name of Sakina Ngayera went to their grandfather, whose name is not mentioned, requesting that they be given Land to cultivate maize. The said grandfather showed them the area in dispute and they have been in possession of the same since then. In his own wards, it was stated that: "Ilipofika mwaka 2000 ndugu m dai Sharifu Ngayera na dada yangu Sakina Ngayera walienda kumuomba baba mkubwa, maeneo ambayo wanayogombania ya kulima mahindi, huyo baba mkubwa alienda kuwaonyesha maeneo hayo na waliendelea kuyam iliki hadi mwaka 2016" 4 What I gather from the above quotation is that they requested to be given land for usufruct, to cultivating maize and they were not given permanently. In his own statement, the Respondent admitted that he was given the plot in dispute to cultivate maize. He further stated that the said farm was used by his father to cultivate maize. He did not state that he was given on permanent basis. The said grandfather or anyone who witnessed the Respondent being given the land indispute was not called as a witness to testify in court. It is trite law that the one who alleges has to prove. The Respondent has failed to prove that he was given the Land in dispute by his grandfather and that his grandfather had title to transfer the said property to him. The Appellant was the Respondent at the trial Tribunal. Her testimony was that, the disputed land was originally owned by her father who acquired the same in the year 1944. She testified further that after divorce she went back home and asked her family for permission to harvest coconuts from the disputed farm, which belonged to her father. What I gather from the record is that the Appellant and the Respondent are members of the same clan (Ngayela clan), the Respondent being the Appellant's nephew. There is no dispute that the disputed land was originally owned by the Ngayela clan as the same was acquired by the Appellant father's family. It is also not in dispute that the disputed land had coconut and mango trees. That means there was same development made by someone. Upon perusal of the record it seems that both the Appellant 5 and Respondent's fathers are no longer. There is no evidence to the effect that either of the parties or any other person has ever been appointed as an administrator of the estate of their deceased father or grandfather who were the original owners of the disputed land. I now wonder as to where do the parties get locus standi, to pursue this land matter which they themselves admit that it belongs to their forefathers. Section 99 of the Probate and Administration of Estates Act, Cap 352 R.E. 2002 provides that: " 9 9 The executor or adm inistrator, as the case may be, o f a deceased person is his legal representative for a ll purposes, and a ll the property o f the deceased person vests in him as su ch " From the foregoing, since neither of the parties were appointed as administrators of estate of their deceased fore fathers, and the Respondent has failed to prove that he was given the land in dispute by his grandfather, it follows that the proceedings of the lower tribunals are void ab initio as they were instituted by person who had no locus standi. As these two grounds dispose of the appeal, I won't dwell on the other grounds. Having said all that, I find this appeal to have no merits. I hereby dismiss it. As it is a family matter, each party to bear its own costs. JUDGE 16/02/2018 6 Court: Judgment delivered in Court this 16th day of February, 2018 the presence of both the Appellant and Respondent in person. C.W. Makuru JUDGE 16/ 02/2018