20190131 TZHC Mwanza

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IN THE HIGH COURT OF TANZANIA it:..✓ AT MWANZA r.. • )r'v LAND APPEAL NO. 55 OF 2018 {From the Decision of the District land and Housing Tribunal of Chato District at Chato in Land Application No. 28 of 2018} 1. ALFRED JOHN 2. CHARLES MASHINGA 3. ELIAS WILLIAM 4. YUSUPH NYAMANZA 5. ALEX KUTENGELWA a ■■■• ■■■ a ■■■■•■■■■■• ■■■■■■■■■■■ ■ APPELLANTS n 6. JOHN TAKIMAZI 7. YADUNIA MARCO 8. VENANCE KIWIBA

VERSUS 1. BINAMUNGU MTWAIKULU 2. BENE MTWAIKULU 3. PHILIPO DEO ................. . RESPONDENTS 4.KATAISEMAKAMABA 5. THE MSENYI VILLAGE COUNCIL 6. THE KIBALE VILLAGE COUNCIL

JUDGMENT Last order ......... 21/11/2018 Judgment delivered.31/01/2019 Gwae, J In the District Land and Housing Tribunal of Chato at Chato the appellants _and two others filed a land dispute against the respondents claiming to have been unjustifiably evicted from their re,sPectiVe parcels o f ~ 1 I ; land situated at Msenyi and their housel and crops were illegally destroyed :. by the respondent. lv i \ I The facts giving rise to the ~ispute between the parties are as follows; that the appellants occupied pbrcels of land which, according to Ii them, were allocated to them by Kibale village authority/land council in the \ year 2015 while on the other hand the appellants are seriously contending ) \ i that appellants encroached the suit land designated for grazing and that I the meetings were held following the ap~ellants' purported trespass and it . I . .. was agreed that the appellants should vacate immediately after harvest of 1 their crops. Upon hearing both sides ( I11 -8 th appellants and 5th and 6th respondent), the trial tribunal concluded that the appellants had failed to prove, in the standard required, that thet were lawful owners of the suit land. I Aggrieved by the trial tribuj decision, the appellants their memorandum of appeal comprised of si) grounds of appeal however I I i have keenly looked at the same and there are only three grounds of ~ l appeal, to wit; I I 2 \ 1. That, the learned Trial tribunal chairperson erred in law and fact by dismissing the appellants' case on the ground that the appellants encroached unto the suit land.

2. That, the learned Trial tribunal chairperson erred in law and fact for failure to take into consideration that the appellants made unexhausted improvements on the suit land 3. That, the learned Trial tribunal chairperson erred in law in rejecting appellants' documentary evidence and denied them right to call witnesses to support their case Through their joint reply to the memorandum of appeal, the respondents stated that the· suit land is the legal property of Msenyi Village and the same was never allocated to the appellants who had also failed to prove their ownership of the disputed land. rd Before me, the 1st and 3 appellant appeared in person and other appellants defaulted appearance whereas one Felician appeared for th the 5 respondent in the capacity of village chairperson and one Makongo, village Chairperson entered appearance for the 6th respondent. Both parties had nothing to verbally argue except reliance on their respective ) ~ memorandum of appeal and reply thereto. . .,,,,~ 3 I st Regarding the 1 ground of\ appeal above, I have looked at the evidence of the 1st -8th appellant whose evidence is on record unlike to the holding of the trial tribunal that the 1st to 4th appellant did not enter appearance during trial, it is sufficiently established that the appellants occupied the suit land since 2015. However when I carefully look at the evidence in its totality

I am not persuaded if the appellants were able to prove that they were allocated the suit land by Kibale Vi/lag!I Authority/Council due to the I 1 following reasons, the appellants ·did not produce loss report from Police ! Force, that the appellants failed to call some persons/members of Kibale Village Council who, if so, participated in t~e alleged allocation exercise for instance one Deus Kapongo, Kibale villa~e chairperson. In Siraj Din v I Ali Mohamed Khan [1957] 1 EA 25 it was' inter alia stated that; I "The quantum of proof ordinarily required in civil litigation is not such as resolves . all doubts I whatsoever . but such as establishes a preponderance cif probability in favour of one I party or the other". I I In our instant case, it is quite questionable if the appellants were lawfully occupiers of the suit land as it is m9re improbable if the appellants~ 4 I th · · were allocated the suit land as the evidende of DWl and DW2 for the 5 I · and 6th respondent respectively is heavier than that of the appellants. The V I appellants, to my firm view failed to suffidiently establish if they lawfully occupied the disputed land as rightly held by the learned chairperson of the trial tribunal. I i I On the 2nd ground of appeal, theI appellants alleged that there I were improvements in the suit such as houses and crops, according to the documentary evidence tendered and receivt

by the trial tribunal as DE3, . I it is clear that the appellants had engaged in agricultural activities as I opposed to Msenyi village plan for pastoral purposes (DE1). However there is no cogent evidence to support the appellbnts' assertion that there were I houses except crops. In respect of the appellants' crops the appellants I i were given sufficient notice to enable them ~arvest the same (20/12/2016- 30/4/2017). Though, if it was proved to the requiredI. standard that it was certainly the respondents who allegedly took the l~w , into their own hands by destroying the appellants' crops, that act would be termed a barbaric act fit to be condemned even the appellants would \have been trespassers yet t h e ~ I 5 I l respondents ought to abide to legal pr0cedures instead of using illegal f means of evicting them from the suit land.I . \ As to the 3 rd ground of appeal, I a1 unable to hold the trial tribunal I wrongly rejected the appellants' documentary evidence due to an obvious I reason that appellants did not clearly testify if their documents were burnt I and that nowhere in the proceedings the appellants sought tendering of a document but· the trial tribunal refu~ed/rejected. Furthermore the appellants are found to have prayed to d1ose their case on 15th January 2017, hence complaints that the trial \tribunal wrongly rejected the appellants' documents and that they

deniet the right to call their witnesses I in support of their case are nothing but an kfterthought. 1 All told and done, this appeal is de\void of merit and the same is I ! hereby dismissed in its entirety, the trial tribunal's decision is upheld. In . . I . . I the circumstances of this case, I shall make no order as to costs of this appeal and those before the trial tribunal u I 31/01/2019 \ 6 · Right of appeal for an aggrieved party explained I 7