angela ero v stephano qwarse 2023 tzhc 22558 19 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB REGISTRY OF MANYARA)

AT BABATI MISC. LAND APPEAL NO. 01 OF 2023 (Arising from Land Appeal No. 114 of 2018 in DLHT for Manyara at Babati, originating from Land Case No. 33 of 2017 at Wareda Ward Tribunal) ANGELA ERO......................................................... APPELLANT

VERSUS STEPHANO QWARSE............................................ RESPONDENT Date of Last 0rder:21.09.2023 Date of Judgement:19.10.2023

JUDGEMENT MAGOIGA, J. The appellant, ANGELA ERO aggrieved with the decision of the District Land and Housing Tribunal for Babati in Land Appeal No. 114 of 2018 now appeals to this court armed with the following grounds of appeal, namely:- 1. That the learned chairman of the appellate Tribunal erred in fact and law in delivering a judgement in favour of the respondent while there was no enough evidence to prove the same; 2. That the /earned chairman of the appellate Tribunal erred in fact and law in deciding in disfavour of the respondent by indicating that the village council had no authority to allocate land, a fact which is not true; 1 3. That the learned chairman of the appellate Tribunal misdirected himself in allowing the appeal before him by relying on new testimonies that was not adduced tendered and examined at the trial Tribunal; 4. That the /earned chairman of the appellate Tribunal erred in law and fact in delivering his judgement in favour of the respondent by pointing out that there was inconsistency of evidence between the appellant and his witnesses while the same does not touch the root of the case. On the strength of the above grounds of appeal, the appellant prayed that, this appeal be allowed with costs and the appellant be declared lawful owner of the suit land. The backdrop of this appeal is imperative to be stated. In the Ward Tribunal for Wareta, the

appellant successfully sued the respondent for land comprised of 6 acres. Aggrieved, the respondent successfully appealed to the District Land and Housing Tribunal for Babati which overturned the Ward Tribunal decision and declared the respondent lawful owner of the disputed land by lawful purchase from Niima Surumbu, husband of the appellant in 2009. 2 Daunted and aggrieved, the appellant has approached this court armed with four grounds of appeal as shown above, hence, this judgement after hearing parties by way of written submissions. When this appeal was called on for hearing, the appellant had the legal services of Mr. Abdallah Kilobwa, learned advocate, whereas the respondent was present and unrepresented. Mr. Kilobwa arguing the first ground of appeal, told the court that, the first appellate Tribunal erred in its findings because the said Niima Surumbu had no interest in the disputed land to pass to the respondent. According to Mr. Kilobwa, the transaction made between Mr. Niima Surumbu and the respondent was illegal and urged this court to find merits in this ground. On the second ground, it was the submissions by Mr. Kilobwa that it was erroneous for the first appellate Tribunal to find that the village council had no powers to allocate land to the villagers. Further, Mr. Kilobwa changed the gear and argued that much as the appellant, is uncontested the wife of Niima

Surumbu, then, any sale without her consent rendered the whole transaction of no legal force. The learned advocate invited this court to find merits in ground too. On the third ground of appeal, Mr. Kilobwa argued that it was wrong for the appellate Tribunal to rely on new evidence tendered. Further on this , jw. --jW 3 ground, Mr. Kilobwa argued that, much as no documentary evidence was tendered, then, the alleged but disputed sale was not proved at all and the evidence of the respondent was contradictory which goes to the root of the matter. On the fourth ground of appeal, it was argued that the contradictions noted were minor and were to be disregarded and had nothing to do with the entitlement of the suit land by the appellant. On the above reasons, the learned advocate urged and invited this court to allow this appeal and declared the appellant lawful owner of the disputed land. In response to the first ground of appeal, the respondent argued that, looking the evidence on record there are enough evidence both oral and documentary that the suit land was formerly owned by the Niima Surumbu but who sold the same to the respondent as his personal property in 2009. According to the respondent, being a mere wife does not negate the fact as proved that the suit land exclusively belonged to Niima Surumbu, who later in 2009, sold the same to the respondent. On the second ground of

appeal, the respondent replied that no evidence was fronted by the appellant that the village council allotted the disputed land to the appellant save for empty allegations on her part. Further, the respondent submitted that despite the appellant being a wife of Niima 4 Surumbu but no evidence was put forward that they jointly acquired the same. On the third ground of appeal, the respondent submitted that, no new evidence was tendered because the sale agreement was tendered during hearing by the respondent and Niima Surumbu and not challenged at all. On the fourth ground of appeal, the respondent argued that, inconsistencies noted by the trial Tribunal and first appellate Tribunal were not minor but serious and went to the roots of the matter. Further, the respondent argued that, the first appellate Tribunal properly evaluated evidence and arrived at just decision. On the totality of the above replies, the respondent strongly urged and invited this court to find and hold that the instant appeal is hopelessly and want of merits. Consequently, the respondent urged this court to proceed to dismiss this appeal in its entirety with costs. The noble task of this court now is to determine the merits or otherwise of this appeal. In doing so, will determine each ground raised and argued. The first ground's complaint was that there was no enough evidence on record to justify the first

appellate Tribunal to declare the respondent as the lawful owner of the disputed land. I have carefully considered the competing arguments and read both the trial and appellate Tribunals' record, but with due respect Mr. Kilobwa, I 5 find the record with strong and enough evidence that the disputed plot belongs to the respondent and not the appellant. I will explain. One, a marriage per se, save for matrimonial home, does not automatically vest all properties of one couple to the other to be jointly owned unless there is evidence to that effect. This is missing in this suit. Two, section 59 of the Law of Marriage Act, [Cap 29 R.E.2019] is very clear that marriage does not deny a couple to have his/her exclusive properties during the subsistance of the marriage. Three, the appellant's evidence is contradictory and inconsistent in that, at first, she alleged but failed to prove that she was granted the disputed land by the village council, and, sooner or later, she changed the story and told the Court that she claims ownership by virtue of marriage, this contradiction goes to the root of the claim of the disputed land that the appellant is not even sure of how she owned the suit land. In the totality of the above reasons, the first ground is found wanting of merits and is hereby dismissed. This takes this court to the second ground, that it was wrong to hold that the village

council had no authority to grant the disputed land to the appellant. This ground will not detain me much after carefully considering the competing arguments on this, for simple that, it was the appellant who alleged to be granted the dispute land by the village council but failed 6 to prove that grant by failure to tender any document supporting such allegations. For that reason, this ground as well has to fail and is hereby dismissed. Next is the third ground of appeal which its main complaint was that the appellate Tribunal relied on new evidence that was not tendered and proved. In this point, the main complaint was the sale agreement which was the basis of the decision of the first appellate Tribunal. This ground, like the two already decided above, is without merits. The sale transaction between the respondent and the appellant though not specifically admitted but at least the respondent called Niima Surumbu, the owner who under oath confirmed the story. The hairnet chairman truly have no powers to allocate land and the appellant utterly failed to prove even by oral her allegations which are full of contradictions. That said and done, this ground too is found wanting in merits and dismissed. The last fourth ground of appeal's main complaint was on inconsistencies whether they go to the root of the matter or not. This ground after going through the lower Tribunals records,

like other three grounds above, in my considered opinion, is with no merits in this appeal. I will explain. One, as held in ground number one above, the appellant's story on how she got the suit land is truly inconsistent; in one hand, she alleged she was 7 allocated by village council but failed to bring any member of the village council to support her case, and on the other hand she alleged to own the disputed land by virtue of being married to Niima Surumbu. This contradiction goes to the root of the matter and is fatal on her part. Two, in evidence, the appellant called hamlet chairman, whom, with due respect to the appellant, had no powers to allocate land to the villagers. Three, seller, Mr. Niimu Serumbu in support of his wives who stay together supported the case for the respondent. On the totality of the above reasons, I find this ground too wanting in merits in the circumstances of this appeal, hence, same is equally dismissed. That said and done and for the reasons stated above, this appeal is found wanting in merits and is hereby dismissed in its entirety with costs. It is so ordered.

JUDGE 19.10.2023 8