IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
(LAND DIVISION)
AT DAR ES SALAAM
LAND APPEAL NO. 91 OF 2021
(Originating from Temeke District Land and Housing Tribunal in
Land Application No.70 of 2016 (Hon.Chenya)
SHABANI HUSSEIN SALEHE...........................................1ST APPELLANT
HUSSEIN SALEHE………………………………………………..2ND APPELLANT
VERSUS
AWUMSURI SOFARI……………..……………………………. RESPONDENT
Date of Last Order: 15.12.2021
Date of Ruling: 14.02.2022
JUDGMENT
V.L. MAKANI, J
The above-named appellants are appealing against the decision of the Temeke District Land and Housing Tribunal (the Tribunal) in Land Application No. 70 of 2015 (Hon. R.L. Chenya, Chairman).
At the Tribunal the respondent herein was declared the lawful owner of the land located at Mwaninga street, Kisarawe II Ward, Kigamboni (The suit Land). The appellants were dissatisfied with the decision of the Tribunal hence this appeal with three grounds of appeal reproduced herein below:
That, the tribunal erred in law and fact in deciding in favour of the applicant without cogent reasons.
That the tribunal erred in law and fact weakening the defence in denying their documents to be tendered in the tribunal for no justifiable reasons.
That the tribunal erred in law and fact in depriving the respondents of their quite possession of property acquired legally.
With leave of the court the appeal was argued by way of written submissions. The appellants submission was drawn and filed by Jamal Makala, Advocate and the submissions by the respondent were drawn and filed by Advocate Eneza Msuya.
Arguing the first ground of appeal, Advocate Makala said that under section 111 of the evidence Act, Cap 6 RE 2019 (Evidence Act) the burden of proof lies on that person who would fail if no evidence at all were given on either side. That on 1/12/2020 the tribunal visited locus in quo. That the assessors asked DW3 one Iddi Omary Masingisa whom was abandoned by the applicant as the key witness to his prosecution side as whether the build structure on the suit land was part of the area sold by him to the applicant. DW3 replied to the negative. That the area claimed by the applicant as the one which is part of his seven-acre sold to him by DW3 and that the structure build by the 1st and 2nd respondents is in the disputed area. That the applicant could tell the tribunal that the place they stood is the demarcation between his area on the right and another area which was uncultivated on the left. That they stood over eyes on the north and their back on the south where the boundary proceeding north resolved by the Kisarawe II Ward Tribunal and kept on saying that the respondents though were present in the area never argued and kept quiet. The he told the tribunal that DW3 was a watchman to one Moza Omary. In 2011 the applicant was called by Mtaa Chairman Mohamed Izengo to the effect that his neighbour was selling pieces of land such as Moza Omar and Rungwe. According to his evidence the wife of Mohamed izengo by then due to his husband had died, informed the applicant that the 1st respondent had trespassed in his land where he uprooted the mlonge tress at the same time he constructed a house to a level of a foundation. He said that it is not true that the 1st respondent had trees passed in to any disputed area had been legally acquired as needs a proof of either a contract of sale of land no matter how small areas are sold, together with their boundaries and even though evidence could have been adduced to the relevant witnesses. The 1st respondent never had he been under any employment to anybody except only if his father has ceased to work in his field of work. Counsel said that DW3 was also asked by assessors whether there is a foundation of the structure of the house on the other side of the boundary as a part of the area he sold to the applicant. Then DW3 answered in negative and the Chairman did not show the question and answer. Counsel said that there is much left by the Chairman without recording. He added that what the chairman considered as a path was not actually a path but boundary. That the applicant planted sweet yams while the other area is uncultivated and is not part of the disputed area. That the boundaries are clear and the area having sisal is not the boundary claimed by the applicant very far from his actual boundary.
Counsel for the appellants further submitted that the evidence adduced by PW2 Hindu Juma Hassan is outside the evidence of a contract of sale made by the applicant and one Iddi Omary Msingisa. That the evidence of PW2 lies only to the said foundation house of which no contract of sale was made out. That the genuine contract of sale is that sold by Idd Omar Masingisa of seven acres and not twenty acres. That even PW3 Janet Kidea said that she in 2005 purchased 2 acres from one Idd Omary Masingisa, later they came to discover that the 2 acres were invaded by the 1st respondent. Then on cross examination it was not clear as to where the 2 acres are situated. That the said Masingisa sold only 7 acres though for reasons best known to himself he changed to 20 acres. He insisted that the applicant omitted some important witnesses mentioned in the application but did not appear at the tribunal.
On the second ground of appeal, Advocate Makala said that DW2 Husein Kisalala could not tell exactly the boundaries. He is only living in the father’s land. He knows Idd Omary Msingisa as a neighbour just adjacent to his father’s land. That it is true that DW1 Shaban Hussein under instruction of the father sold the piece of land to Juma Lumbwe about 20 x 13 paces and not true as stated in the judgment that the size is unknown. That DW2 Husein Salehe is the son of DW1 and owns a big area of which received it from serikali ya kitongoji Mwaminga and upon tendering the same was denied to be admitted in evidence for reasons best known to the tribunal. That the document of applicant was easily accepted. That the document denied by the tribunal is that issued by serikali ya Kijiji Chekereni Mwasonga, kisarawe II on 28/11/2003. That the applicant had brought the document which is in consistence with the one issued to him when he bought 7 acres from the 2nd respondent. That in his testimony DW3 could not identify the number of acres and form of signature.
Advocate Makala submitted on the third ground of appeal that in sale agreement there is seller and buyer and the buyer would rely to the skills and care of the seller. That the contract of sale was between DW3 and Id Omary Masingisa and the applicant. He said that however the applicant avoided to call DW3. That the sale agreement by the applicant contained scratch marks which means that some alterations have been made. That if the key witnesses could be called the true picture could be known. That the area which the applicant purchased is not invaded by respondents. That they own it with documents which the chairman refused to admit. Counsel prayed for the appeal to be allowed and the order of tribunal be quashed.
In reply advocate Msuya said that the situation explained by Advocate Makala in the first ground that a burden of proof in a proceeding lies on a person who would fail if no evidence at all were given on either side, is not applicable in the case at hand. He said that in real fact respondents had proved at the tribunal by tendering exhibits which were received (P1) to show that they bought the suit land from Iddi Omary Masingisa. Counsel said that appellants arguments are not understood as they repeat the conversation of the hearing without showing the reasons for quoting them. That it was by submission and argument by respondent that the tribunal delivered judgment in favour of respondent.
On the second ground of appeal, counsel said that it was difficult to understand what was written in page 5 when explaining ground 2 of appeal. That the applicants are not consistence of the language used. That the wording of ground 2 of appeal does not in any way explain how the honourable chairman denied to receive the appellants documents. That no any argument on ground 2 where respondent can respond. However, advocate Msuya generally on ground 2 said that the appellant has never submitted nor tendered any document at the tribunal for himself to testify on. That they never asked to file additional list of documents if they thought they forgot to submit them earlier at the first hearing. Counsel relied on Order XIII rule (1) and (2) of The Civil Procedure Code Cap 33 RE 2019 (The CPC). He said therefore that appellant is estoped from claiming the production of documents at this stage as they never applied to submit the list of additional documents.
On the 3rd ground, Advocate Msuya replied that although appellant did not tender any document of ownership but they agreed to the truth that they sold another plot to one Rumbwe. The plot that bordered the suit land. That they indicate in the sale agreement (P3) that between SHABANI HUSSEIN SALEHE and LUMBWE JUMA HASSAN that from north the plot bordered Janeth Kidea (wife of respondent) the disputed land is belonging to the respondent. That the appellants are estoped from denying the fact which was declared by them earlier. That during examination DW1 and DW2 (appellants) agreed to know the plot of Mr. Rumbwe and the sale was done by them. That DW3 Idd Omary Masingisa denied the thumb print on the sale agreement but he never produced another thumb print which bears the correct thumb print whereby respondents had signed to buy land from him. That DW3 was denying his own thumb print for his own interest. Advocate Msuya said further that the law is clear on the exclusion of oral evidence against documentary evidence submitted, therefore the defence have no any leg to stand as appellant are arguing without tendering any document. He relied on section 100(1) of the Evidence Act. He distinguished the cited case of Chandrikant (supra) in that the court have not been invited for review of the decision, father the said decision was not obtained by fraud and the parties were not deprived the right to be heard. He prayed for this appeal to be dismissed with costs.
In rejoinder, Advocate Makala reiterated his main submission.
The main issue for consideration is whether this appeal has merit.
Generally, three grounds of appeal by the appellants are on the weight of evidence therefore I shall analyse them simultaneously. However, before considering the merit of this appeal I must admit that as correctly submitted by the Learned counsel for respondents it is difficult to grasp from submissions by the appellants’ counsel and in essence the counsel in most cases have repeated what respondents’ witnesses testified at the tribunal. Out of appellants’ submissions I have noted however that the counsel is complaining that respondent’s annexure was denied by the Chairman whereas the sale agreement by respondents were admitted. I have gone through the proceedings of the tribunal nowhere the respondents/appellants herein prayed to tender any sale agreement in support. Correctly as submitted by advocate Msuya, respondents counsel did not even seek leave of the court for additional of list of documents. On his part, respondent herein tendered Exhibit P1 which is the sale agreement between respondent herein and Idd Omary Masingisa who testified on respondents/ appellants as DW3. He denied his signature in the said sale agreement and that he disposed only 7 acres to the respondent herein and not 20 acres as alleged. In such a situation, it was expected that DW3 could produce the sale agreement which would contradict that of the applicant (Exhibit P1). To the contrary neither DW3 nor respondents could produce such sale agreement and therefore P1 by the applicant was the only uncontradictory sale agreement to be relied upon. It is therefore my considered view that respondents had adduced heavier evidence supported by the sale agreement compared to the appellant herein who relied only on mere assertion that P1 was not genuine without production of any document in rebuttal. Basing on that I am fully satisfied that there was nothing wrong in the findings and decision of the Tribunal. In upshot this appeal is dismissed with costs and the decision of the tribunal is hereby upheld
It is so ordered.
V.L. MAKANI
JUDGE
14/02/2022
3
Cited documents 2
Legislation 2
| 1. | Civil Procedure Code | 7501 citations |
| 2. | Evidence Act | 5655 citations |