Mtilwa

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL N0.27660 OF 2024 (Arising from Land Application No. 61 of 2019, of the District Land and Housing Tribunal for Mkuranga) ATHUMANI RASHID MTILWA.... .1^ APPELLANT ABDALLAHMAN OTHMAN MPILI 2ND appellant SAID MOHAMED MPILI 3RD appellant HASSAN KUCHI MPILI ,4™ APPELLANT RUKIA BAKARI MPILI .5™ APPELLANT SOFIA ALI MPILI ,5™ APPELLANT MIRAJI IBRAHIM MPILI 6™ APPELLANT VERSUS MUSSA ABREHEMAN MPASWA RESPONDENT EXPARTE JUDGMENT Date of Last Order: 15.04.2024 Date ofJudgment: 27.05.2024 T. N. MWENEGOHA, J. This Appeal has five grounds as follows; - 1. That, the trial Chairperson erred both in law and in facts for deciding the matter in favour of the respondent where there is no credible piece of evidence adduced by the respondent to support the same and the case was determined Ex-parte; 2. That, the trial Chairperson erred both in law and in facts by failure to evaluate properly the evidence of the appellants witnesses, hence reached unto unfair decision; 3. That, the trial Chairperson erred in law and in facts by deciding in favour of the respondent without visiting locus in quo to ascertain the existence of the disputed land; 1 4. That, the trial Chairperson erred both in law and in facts for deciding in favour of the respondent without giving the value of the evidence of the appellants who were in the disputed land before independence colonial Rule and after the independence under customary ownership; 5. That, the trial Chairperson erred in law and facts by failure to summon the respondent to testify his evidence inter parties whose evidence was crucial to this matter, hence on unascertained evidence of which reached to unfair Judgment. The Appeal was heard through written submissions and exparte against the respondent. Advocate Abdallah R.M. Matumla appeared for the appellants and abandoned the 5^*' ground of Appeal. Submitting in favour of the Appeal, Mr. Matumla, insisted on the 1^ and 2"'* grounds that, the Judgment of the trial Tribunal was against section 110(2) of the Evidence Act, Cap 6 R.E 2019. That, their case was proved on balance of probabilities. They know the land In dispute well and the respondent did not appear to challenge the said evidence. He went on to argue on the 3'''^ ground that, there is no dispute that the trial Chairperson did not visit the locus in quo to ascertain the existence of the disputed land as far as its boundaries are concerned. That, this was fatal as stated in Said H. Lipitie and 660 Others versus Ministry of Defence, Appeal No. 404 of 2021, (unreported). On the 4“’ ground, it was argued that, the appellants have been residing on the land in dispute since colonial era. Having gone through the records of the trial Tribunal with regard to the case at hand and having heard the submission of the appeliant's counsel, the only issue in need of determination is whether the Appeal has merits or not. In 2 determining this Appeal, I will consolidate all four grounds and discuss them together as they are all based on evaluation of evidence. In examining the records, I found that the testimonies of appellants' witnesses PWl-Pw4, was weak and incapable of proving their claim against the respondent. For instance, all of the witnesses did not know the size of the land claimed to be trespassed upon by the respondent. Therefore, they filed a case without knowing the size of the disputed land. What they had in mind is the size of the land they claim to occupy, that is a total of 42 acres. According to the records, PWl stated that, he did not know the size of the land that the respondent trespassed on, same applies to PW3 and PW4. As for PW2, he stated the land which was trespassed by the respondent is measured 2 acres. Considering these discrepancies, indeed, the appellants did not prove their case on balance of probability, see Hemed Said versus Mohamed Mbilu (1984) TLR 113. Therefore, the trial Court was right to dismiss the suit in favour of the respondent. It does not matter whether the case was heard ex-parte against the respondent and further that, the trial Tribunal did not visit the locus in quo. After all, there was nothing to visit, as the witnesses did not even know what exactly was in dispute. In the end, I uphold the Decision of the trial Tribunal, and so are the Orders that followed it. The Appeal is accordingly dismissed with costs. NEGOHA JUDGE 27/05/2024 3