LAND APPEAL AMOS KATIKIRO KERO

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA LAND APPEAL NO. 15795 OF 2024 REFERENCE NO. 202407031000015795 (Arising from the decision of the District Land and Housing Tribunal for Mara at Musoma in Land Application No. 75 of2023 BETWEEN AMOS KAITKIRO KERO........................ APPELLANT VERSUS WARYOBA WAMBURA.................................. RESPONDENT JUDGMENT osf1 & isf1 September, 2024 M, L, KOMBA, J.: This is an appeal against the decision of District Land and Housing Tribunal for Mara at Musoma (the DLHT) in Misc Land Application No. 75 of 2023 where respondent herein prayed to be declared a lawful owner the disputed land and appellant be ordered to vacate from the disputed land. After a full trial the DLHT granted the application. A brief background giving rise to this appeal is as follows; The respondent herein instituted the Land Suit against the appellant over a suit land which he bought in the year 1992 form Paulo Wangasi. The area was occupied by respondent from that year to 2021 when appellant Page 1 of 9 trespassed. It was the testimony of the respondent that he bought that piece of land via his young brother, Mashaka Ihaga, by that time respondent was living and working in Musoma. The sale was witnessed by SM2 who was a ten-sell leader. On the other hand, appellant claim to inherit the said land from his late parents being the only heir and that Paulo Wangasi never owned the disputed land and he is appellants uncle. As hinted DLHT decided in favour of the respondent. The appellant herein was annoyed by the said decision hence this appeal with four grounds which can be summarized as; 1. That, the District Land and Housing Tribunal erred in law and fact in declaring respondent as a lawful owner while he failed to prove his ownership. 2. That, the District Land and Housing Tribunal erred in law and fact by considering the evidence of PW3 who executed contract while he was minor. 3. That, the District Land and Housing Tribunal erred in law and fact by declaring respondent bought the land from SU2 while the seller denied to safe the said land. 4. That, the District Land and Housing Tribunal erred in law and fact by not considering water tight evidence of he appellant together with his witnesses. Page 2 of 9 During the hearing of this appeal, the appellant was represented by Ms. Suzana Jacob Gibayi while on the other hand the respondent hired Mr. Thomas Illanga, both the learned advocates. It was Ms. Suzan who pulled the curtain and submitted on the 1st ground that the one who is supposed to prove the case is the applicant as per s. 110 of the Evidence Act, Cap 6, she went on submitting that the respondent testified that he bought the disputed land from Paulo Wangasi who was SU and he bought the land through Mashaka Ihaga for TZS 30,000/. However, she submitted that at page 5 of the proceedings the respondent informed the trial Tribunal that he was not present when the sale was affected and the respondent filed the suit in the year 2021 and said he bought the suit land at TZS 4,000,000/. Attacking the testimony of the respondent Ms. Suzan said respondent did not tender a loss report to prove that the contract once get lost. Respondent contradicted in his testimony when he informed the trial court that by the time sale agreement was signed Mzee Paulo Wangasi (SU2) was living in that land who later on shifted. But later he testified that the disputed land had only graves as seen at page 8 of the proceedings. She insisted that the respondent did not know the disputed land and failed to prove his case to the required standard. Page 3 of 9 On the 2nd ground it was her submission that by the time of signing the contract, Mashaka Ihaga was 17 years old while under section 11 (1) and (2) of the Law of Contract Act, Cap 345, minor is not allowed to sign the contract. She went on making her position that even if the contract could be signed by the SM3 the contract could be void as he was not at the age of majority. Submitting on the 3rd ground Ms. Suzana said, at page 15 and 16 of the proceedings, it was recorded that SU 2 (Paulo Wangasi) informed the tribunal that he did not know the respondent, never owned land and he has never sold the land to respondent and he went on submitting that he shifted to Serengeti in 1990. Counsel insisted Paulo and respondent were not knowing each other and respondent said he was not at the disputed land when the sale was concluded. She lamented that Chairman failed to consider contradictions as Paulo disputed to sale the land. Counsel submitted further that appellant explained how he got the land, he inherited after the death of her mother and he was the only beneficiary. The same was collaborated by SU 3 who explain the history of the disputed land and the chain of ownership from the beginning up to the appellant. For her, the testimony was heavy on the side of the Page 4 of 9 appellant and prayed the appeal to be allowed with cost. That is how she urges ground number 4th. Mr. Illanga who represented respondent prayed to combine all ground and submitted that respondent sent money to his young brother Ihanga, it was 30,000/ and his young brother paid for the land, that was 1992 and respondents young brothers were living there. The contract lost but he named the seller was Paulo Wangasi and the sale was witnessed by ten-cell reader as recorded at page 6. They lived in peace till 2020 when the dispute arose. At page 9 Wangasi testified that the land was owned by Warioba Wambura as he bought from Paulo Wangasi and it was not true that Paulo never owned land. If the respondent was a trespasser, he insisted, the appellant was supposed to complain. Doubting the age of the appellant, Mr. Illanga submitted that in his testimony (Sill) Amos said he was 48 years old that means by the time his parent died he was six (6) years old he wonders if he was the only heir who was taking care of the land as guardian and he failed to explain the use of the land in all those days as he was not living in the said land. He went on submitting that Juma Ngazi said appellant did not owned the land except his father who died 1997. Meanwhile, Respondent managed to prove his case as per section 110 of the Page 5 of 9 Evidence Act, Cap 6. In alternative he said if Paulo Wangasi denied to sale the land then respondent who has been in the land for 28 years is fit to claim adverse possession. He prayed the appeal to be dismissed with cost. While rejoining her submission Ms. Suzan disputed the price which was said was used to buy disputed land which was TZS 30,000/ while on the other time he said he bought at 4 million TZS. That show variance on the evidence of the respondent. Further she submitted that there was no loss report to prove that the contract was lost and Mr. Illanga did not say anything about the minor who signed the contract. About adverse possession, she said the appellant was using the land and it was respondent who complained that appellant trespass to suit land. After hearing the parties, it is my duty to analyse whether the appeal has merit. In general, the appellant is complaining that the case was not proved to the required standard. Starting with the second ground of appeal, Mashaka (SM2) who signed a purported contract for sale as per his testimony which was collaborated by SM4, he confirmed he was 17 years old as reflected at page 8 of the proceedings. If there was a sale document or a contract, as submitted by counsel for appellant, SM2 was minor who under the law he was not capable to enter into agreement Page 6 of 9 regardless for himself or on behalf of any person as per the Law of Contract and the Age of Majority Act. I find the second ground has merit. On the third ground, it was the testimony of the SM 3 that he bought the land from Paulo Wangasi and the said Paulo at page 16 denied to sale the land. Appellant explained how the land become his property as he inherit and none of the witness disputed that the land was owned by his father then his mother before he become the owner. As submitted by counsel for appellant, Paulo disputed to sale any land and he don't know respondents. On the other side, respondent has no any document to prove he bought the said land. It was the duty of the respondent to prove what he was alleging during trial. The fact that respondent's young brothers occupied the area does not warrant ownership. The 1st ground and the 4th are about proving the claim to the required standard. Respondent who was SMI claimed that he bought the land at 30,000/ and the money for the said plot was given to his young brother in the year 1992 (fedha nilimpa mdogo wangu). However, Hamis Ihaga (SM5) testified that money for the plot was sent via his mother as seen at page 10 of the proceedings. (Hela ya manunuzi ilitumwa kwa mama yangu). Page 7 of 9 Further, land application indicated the disputed land measures 110x70x45x40, SM2 testified that the disputed land measures 70 x 70 footsteps, SM4 testified that the area measures 40 x 100 footsteps. There are three different measurements over the same disputed land. Counsel for appellant submitted that respondent did not know the land in issue, I agree with her if respondent bought the land and occupied for all those years could have know the measurements. That being not enough, while respondent insisted he was not present during the sale as seen at page 4 in first and second paragraph at page 5; SM2 Kusekwa Wigimwa testified that he was called by Paulo Wangasi and the respondent and was told the two wanted to make a contract for sale of land (wanataka kuuziana eneo) at page 6 last paragraph. That means, the respondent was present when the sale was done and it was witnessed by SM2.1 find contradictions in respondents testimony which goes to the root of the case. The contradictions is major because the question who bought the disputed land cannot be answered basing on respondent's testimony (then applicant). I find the combined ground has merit, respondent failed to prove his case during trial to the balance of probability. Page 8 of 9 Basing on the analysis, I find the appeal has merit and I hereby allow it. I reverse the decision of the trial tribunal in Application No. 75 of 2023 by declaring the appellant to be the lawful owner. In the consequence, appeal allowed with costs. It is so ordered. DATED at MUSOMA this 19th day of September, 2024. M. L. KO MBA Judge id in chamber before Ms. Suzana Jacob counsel for the appellant, the appellant was present in court and in the presence of respondent who appeared in person. M. L. KOMBA Judge 19th September, 2024 Page 9 of 9