20160920 TZHC Dodoma

I. IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) MISC. LAND CASE APPEAL NO. 55 OF 2015 (From the Dedsion of the District Land and Housing Tribunal of Singida District at Singida in Land Application No. 35 of 2012) ATIIU'1Af'1I JUlIA KISAI ........ ............1..........1.......... ...APPELL.PNT VERSUS SALUM JUMA KISAI & ANOTHER ..IIIII....I...IUW..W.I..I.RESPONDENT JUDGMENT 02/8 & 20/9/2016 KWARIKOI 3; Appellant herein filed suit against respondents herein to recover about thirty (30) acres of land situated at Masweya village in Singida District before the District Land and Housing Tribunal of Singida. He lost the suit and on being aggrieved he has preferred this appeal upon the following four grounds of appeal; 1. The Honourable Tribunal unreasonably failed to pay in regard the long and uninterrupted appellant's use of the suit land, and the fact that he was the one who invited the first respondent in 1981. 1 r. The trial Chairman failed in its (sic) wisdom to consider the evidence and testimonies put forward by appellant in his District Tribunal, which had it take (sic) fairly, it could arrives (sic) at most reasonable and justifiable judgment, that I the balance (sic) of probability, appellant was and still the (sic) real owner of the suit land. That, the District Land and Housing Tribunal grossly failed to evaluate and examine records of the evidence of appellant and his witness village executive leaders PW2, (sic) as to appeilant undisputable ownership over the land and when he began possessing it That, the Honourable Chairman failed to hold ownership is upon , appellant as evidenced per village purported sale agreement at the time of reconciliation pending (sic) to which appellant denied to acknowledge but respondent signed on it. The evidence from appellant's side as unfolded at the trial show that appellant welcomed first respondent, his relative (half-brother) who was sick to Masweya village in 1995 and lived with him but later gave him part of land he was allocated in 1981. That, first respondent trespassed to appellant's land outside the agreed one. ON On the other hand the respondent's evidence show that the first respondent moved to Masweya village in 1994 where he was allocated virgin land about 40 acres, cleared it and has been using it together with his son second respondent to date. However, at the time of the allocation by the village government upon payment of shs. 5,000/= first respondent was living at the appellant's place. At the end of the trial it was found that the respondents' evidence weighed heavier hence appellant lost the suit. During hearing of this appeal at first appellant adopted his grounds of appeal and offered no any further explanation. On their part respondents maintained that the first respondent was allocated disputed land by village authority and has been using it since then with his family including the second respondent. In rejoinder the appellant submitted that respondents had earlier agreed to settle the matter since they admitted to have trespassed the disputed land but he (appellant) refused to accept the prayer. That, had the disputed land been theirs they could not have admitted liability. Following parties' submissions and upon consideration of the evidence on record and the trial tribunal's judgment the issue to be decided here in whether this appeal has merit. Reading through the 3 grounds of appeal the appellant's main complaint is that the trial tribunal erred to decide in his disfavour while the evidence on record proved that he is the rightful owner of disputed land having been acquired and used it uninterruptedly for a long time. Going through the evidence on record this court is of the settled mind that respondents' evidence is heavier compared to that of the appeUant for the following reasons; One, while appellant evidenced that the first respondent moved in Masweya village upon his invitation in 2000, his witnesses NJIKU CHAMBIA, PW1, FERUZI MOHAMED, PW2 MARIAMU SHABANI, PW4 said it was 1995 while PW5 said it was 1993. This is contrary to respondents' evidence which was straight that the first respondent moved to Masweya village and allocated disputed land in 1994. Thus, as it can be seen appellant's evidence contradicts on material facts. Two, while appellant alleged in his plaint that disputed land measures aboUt thirty (30) acres his evidence at the trial showed that the land measures about fifteen (15) acres. And PW1 and PW2 only said total area occupied by the appellant is fifty (50) acres and PW2, FERUZI MOHAMED said he dd not know the size of disputed land. Whereas, PW4, MARIAM SHABANI JUMANNE and PW5, HAMISI JUMANNE said disputed land measures fourty (40) acres. Therefore, the appellant has not even proved the size of the disputed land. 4 However, on their part the respondents and their witnesses WAZIRI SHABANI, DW1 JULIUS NJIKU CHAMBIA, DW2gave evidence that disputed land is fourty (40) acres which the first respondent was allocated by village authority. Three, the trial tribunal which had the advantage of visiting the locus in quo reported that the appellant never used disputed land as opposed to the respondents who have farms and planted permanent fruit trees like Mango. The tribunal also found DW2 to be credible non-interested witness who explained sufficiently how the disputed land belongs to the respondents. Further, the tribunal found that the appellant failed to show boundaries between him and the respondents while the latter arewell versed with the land demarcation. Lastly, the tribunal found that the respondents have been in uninterrupted use of the suit land since 1994 to I It 2012 hence conferring them rightful ownership of land. For the foregoing, this court is of the settled view that the appellant has failed to prove on balance of probability that the disputed land belongs to him. The law says that; whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist (section 110 (1) of the Evidence Act [Cap 6 R.E.2002]. 5 S Thus, the appellant's claim that the trial tribunal erred to decide in his disfavour has failed. This court finds no reason to disturb the trial tribunal's finding, it is hereby upheld. Finally, this appeal is without merit and it is hereby dismissed. The parties being related each one to bear their own costs. It is ordered accordingly. 7'' \ • 61 I JUDGE - I 20/9/2016 Judgment delivered in court today in the presence of the Appellant and the Respondents and Ms. Judith Court Clerk. ftN.L ._• .1 •' ct • r .- JUDGE 20/9/2016 Court: Right of Appeal Fully Explained. 1:E - 71 ARIKO -.. ;•/_ \ I_ ) JUDGE ... / 20/9/2016