Betrod

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOROGORO SUB REGISTRY AT MOROGORO LAND APPEAL NO. 5763 OF 2024 (Appeal from the decision of the District Land and Housing Tribunal for Kilombero District at Ulanga in Land Application No 69 of 2019) BETWEEN BETROD LYAPANGA APPLICANT VERSUS ELIUD KILEMILE RESPONDENT JUDGMENT MRUMA,J In the District Land and Housing Tribunal for Kilombero District at Ulanga, the Respondent herein instituted Land Application No 69 of 2019 against the present Appellant praying for a declaration that he was a lawful owner of a piece of land measuring two acres located at Mipinguni Kisegesege at Miwangani Village in Idete Ward, Kilombero District in Morogoro Region. The trial tribunal entered judgment for the present Respondent and declared him the lawfully owner of the land in dispute. Aggrieved by the findings and decision of the District Tribunal the Appellant has resorted to an appeal to this court on the following grounds:- 1. That the trial tribunal erred in law and fact in failing to appreciate the evidence available in the Tribunal that the suit land belong to the appellant and the claim of the Respondent ought to have been dismissed thereto. 2. That the Trial Tribunal erred in law and fact in relying on evidence of PW4 the neighbourr of the parties which was not present at the time when Appellant was allocated by local Government of Idete. 3. That the trial Tribunal erred in law and fact in adjudicating the matter which has non joinder of parties including the local government of Idete. 4. That the Trial Tribunal erred in law and in fact in treating the evidence of the Appellant adduced in the Tribunal to have contradictions while evidence is very clear on how the Appellant acquired the suit land measuring 2 acres following the allocation made by Local Government of Idete thereto. At the hearing before the trial tribunal the Respondent herein Eliud Kilemile called five witnesses while the Appellant Betrod Called four witnesses. Starting with the Respondent's (who was the Applicant before the trial tribunal), side he alleged that he was allocated the disputed land by the Village Land Committee in 1995 and that he occupied and used it undisturbed till 2019 when the Respondent trespassed onto it. To support his story he called four witnesses one of these witnesses was Thabit Herman Koya who testified as PW2. He told the tribunal that in 1995 each party was allocate 8 acres by the Village Land Committee and that he was in Land Allocation Committee and he is the one who showed the parties their boundaries. He said that the Respondent worked on his land undisturbedly till 2019 when the Appellant encroached two acres of the Respondent's land. A similar version of the story was given by Joseph Cunberth Chapa (PW3) who like PW2 testified that in 1995 he participated in showing the parties their respective boundaries in the disputed land. On his part Betrod Yasimule Luhagile(PW4),testified that sometimes in 2003 he went to buy a farm in that area and the Appellant showed him the Respondent's farm as one of his new neighbours. The last witness was Bertha Marko (PW5) who testified to the effect that the Respondent owned 8 acres of land at Miwangani area. Now turning to the Appellant, like the Respondent he claimed to have been allocated the suit land by the Village government in 1995. He told the trial tribunal that there were 20 people (including himself) who applied for and were allocated a piece of land measuring 100 acres by the Village Committee. He got 18 acres in that land which he occupied. While he was using his land the Respondent instituted a criminal case against him alleging that he had trespassed onto two acres belonging to him and harvested his rice paddy. The criminal court ruled that as there was land dispute in the matter, criminal charge could not stand and it dismissed the Respondent's case. Following the dismissal of his criminal case the Respondent instituted these proceedings as a land dispute in the trial tribunal. His first witness Nicodemus Gasper Choma(DW2)who was an Acting Village Executive Officer of Idete Village in 1995 confirmed the Appellant's story that in 1995 the Village government allocated 100 acres of land to a group of 20 villagers. According to DW2,the Respondent was not among those 20 villagers. He told the trial tribunal that when the said group decided to divide that land among themselves the Appellant got 18 acres. When this witness was cross-examined he told the trial tribunal that because he was not a member of Land Allocation Committee he did not go to the locus in quo when the farm was being divided among the group members. Another witness who gave evidence for the Appellant was Baltazar Daniel Mpua(DW3)who simply stated that the Appellant was allocated the land in dispute by the Village government but in cross-examination unlike DW2 he told the trial tribunal that the Respondent was among the persons who were allocated that land together with the Appellant and another person who is now dead. When he was asked a question by an assessor for clarification DW3 told the trial tribunal that 100 acres allocated to the group of 20 people is located in different place from the land in dispute. Another witness John Jacob Sanda (DW4)swore that he was among the 20 people who were allocated 100 acres by the Village government and that out 100 acres the Appellant was given 18 acres. I have scrutinized the trial tribunal's records and noted that both parties in the course of proving their claims did not produce documentary evidence to support their respective assertions which were to the effect that they were allocated the suit land by the Village government. That notwithstanding since evidence of the parties in a civil case cannot tie, courts are obliged to weigh the evidence adduced and a party whose evidence is heavier than that of the other must win. In measuring the weight of evidence adduced court has to compare its credibility and rule which of the two is most probable or believable. The more probable evidence must be evidence which is credible and consistent. Pursuant to the provisions of section 110 (1) of the Evidence Act, the Applicant or claimant who is the one who asserts, is duty bound to produce more credible and consistent evidence than that of the Respondent to prove his claim. His burden is therefore a bit heavier than that of the Respondent. The Respondent's burden is lesser and he is simply required to prove an affirmative defence. By affirmative defence I mean that the Defendant/Respondent has legal duty to produce legal response to the claims or assertions put forward by the claimant by introducing evidence which if found to be credible will negate his liability. Now comparing the evidence of the parties' in this matter, the evidence of the Respondent was more credible and consistent than that of the Appellant. As stated hereinbefore, the Appellant and his witnesses Thabit Herman Koya, Joseph Cunbeth Chapa (PW3) and Bertha Marko Malenda (PW5) consistently testified that the Appellant was allocated the land in dispute by the Village Government in 1995. Actually PW2 testified to the effect that he was among the members of the land committee of the village which allocated the land and that he participated in showing the parties their respective boundaries. His evidence was controverted by any evidence from the Appellant's side. On the other hand the Appellant and his witnesses gave contradictory evidence regarding allocation of 100 acres to 20 people. While the Appellant's evidence that 20 people were allocated 100 acres of land was supported by that of Nicodemus Gasper Choma (DW2), he did not explain how ultimately he was given 18 acres out of 100 acres he jointly acquired with 19 other persons. Under normal circumstances it was expected that if 100 acres is divided to 20 people each would have got 5 acres. Any other distribution/division of that land ought to have been accompanied by reasons for such distribution and/or division. Secondly there are contradictions in the testimonies of DW2 Nicodemus Gasper Choma the then Acting Village Executive Officer at the time who testified that the Respondent was not among the 20 people who were given 100 acres and that of Baltazaar Daniel Mpua (DW3) who told the trial tribunal that the land was allocated to three persons including the Appellant, Respondent and one other person who is now deceased only. As stated at the outset of this judgment in civil litigations evidence of the parties' cannot tie so as to oblige the court to divide the land the subject of the suit into two halves or declare that neither party has established his/her right over the land and therefore leave It without ownership. In any event there must be evidence which however slight it may be, but it is heavier than that of the other. The party whose evidence is heavier however slight it may be must carry it all. In the case at hand when one compare evidence of the parties, it is obvious that lack of explanation as to how the Appellant acquired 18 (Instead of 5)acres out of 100 acres given to 20 people and contradiction in the evidence of his two witnesses regarding how many people were given the land, and the fact that Nicodemus Paschal Choma (DW2) did not go to the disputed land at the time of showing boundaries reduced the weight of the Appellant evidence compared to that of the Respondent which was credible and straightforward. In the final result and on account of evidence of the parties which I have re-evaluated in my obligation as the first appellate court, there is no need to faults the trial tribunal judgment and decree which declared that the two acres belonged to the Appellant. Consequently, the appeal is dismissed with costs. It is so ordered. qVW 0;C A.lt. MRUMA, c -y. c? ■V Uj JUDGE X w > '"■jSSiS 6. 11. 2024.