Lucia Butene judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA LAND APPEAL NO. 1445 OF 2024 (Originating from Shinyanga District Land and Housing Tribunal Land Application No. 24 of 2022) LUCIA BUTENE…………..…………………………………………………..APPELLANT VERSUS EMMANUEL JOHN ………………..……..…………...………..………..RESPONDENT JUDGMENT Date of Last Order 21.08.2024 Date of Judgment: 18.10.2024 MWAKAHESYA, J.: The appellant, Lucia Butene, is challenging the decision of the District Land and Housing Tribunal for Shinyanga District (the DLHT) in Land Application 24 of 2022 which was decided in favour of the respondent, Emmanuel John. The background of events leading to this appeal can be summed up as follows: At the DLHT the appellant (erstwhile applicant) was claiming ownership of a piece of land (disputed land) measuring two acres allegedly usurped by the respondent. It was also alleged that, the respondent had removed the natural boundaries on the disputed land, 1 and cut down about 600 trees therein. The appellant filed a suit at the DLHT claiming ownership of the disputed land, which she alleged was allocated to her on 20.03.2022 as inheritance from her father (the late Butene), she also claimed TZS 500,000/= as compensation for the 600 trees alleged cut down and taken by the respondent. Meanwhile, the respondent in his defence, denied encroaching the appellant’s land and cutting any trees. The DLHT chairperson visited the disputed area to ascertain the parties’ claims and after deliberating was of the view that the appellant had failed to prove that the disputed land belonged to her and that trees were destroyed by the respondent. Subsequently, the appellant’s suit was dismissed with costs. Aggrieved, the appellant has filed the present appeal in a memorandum containing five grounds which read: 1. That, the Hon. Trial Tribunal erred in finding that the respondent is not a trespasser without evaluating the evidence adduced by both the appellant, SM2 and SM3; 2. That, the Hon. Trial Tribunal erred in finding that no trees were removed on the said disputed area rather than small bushes; 2 3. That, the Hon. Trial Tribunal erred in finding that the beacon of the suit land is an animal road while there is no road at that place; 4. That, the Hon. Trial Tribunal erred in law by infringing the right to be heard by using a language which is not known to the appellant without an interpreter; and 5. That, the Hon. Trial Tribunal erred in law and fact by failing to admit crucial documents from the ward and village concerning beacons of disputed land. By consensus the appeal was argued through written submissions, and credit to both parties they adhered to the agreed schedule. Submitting on the first ground of appeal, the appellant reiterated her ground of appeal by stating, without further elaboration, that the DLHT erred in finding that the respondent was not a trespasser without evaluating the evidence adduced by her, SM2 and SM3. She submitted further that, the recommendation by the Kinzumbi Ward Land and Housing (sic) was not taken into consideration by the Chairman where it was recommended that, the applicant has been owning the disputed land for a long period. 3 On the second ground of appeal, the appellant submitted that, trees were removed on the disputed land, but the tribunal did not take into consideration the evidence provided to prove the same. On the third ground of appeal, the appellant was of the view that, the DLHT erred in holding that beacons of the suit land was an animal trail while there is no such thing at the disputed land. Further to that, the DLHT chairman did not take into account the evidence of the appellant that there was no such road as per records of the Ward Tribunal. Submitting on the fourth ground of appeal, the appellant was of the view that, the DLHT infringed the right to be heard of the appellant using a language unknown to her, and that the appellant had the right to have an interpreter. On the fifth and final ground of appeal, the appellant submitted that the DLHT erred in law and fact by failing to admit crucial documents from the ward tribunal concerning beacons of the suit land. She elaborated that, the admission of documents was the right of the appellant and the respondent could have cross examined on the validity and contents of the same, however for no reasons the DLHT denied the admission of the said crucial documents. She referred to the Court of 4 Appeal decision of The Dpp v. Mirzai Pirbakhshi@Hadji and Others, Criminal Appeal No. 493 of 2016 (unreported) where it was held that: “A person who at one point, in time possesses anything a subject matter of trial…is a competent witness to testify, but could tender the same.” The appellant rounded off her submission by submitting that, what the DLHT did led to failure of justice, and cited the case of Tubona Mwambeta v. Mbeya City Council, Civil Appeal No. 287 of 2017, Court of Appeal – Mbeya (unreported) to cement her position. In reply the respondent submitted that, it is evident from the trial record that the appellant failed to prove her claim to the required standard due to lack of credible evidence. He elaborated that, both sides gave evidence and the tribunal went to visit the locus in quo and it was found out that the respondent never trespassed into the appellant’s land. He concluded that, the DLHT chairperson did not err in dismissing the appellant’s claims. The respondent’s reply to the second ground of appeal was simply that the same is baseless as the DLHT visited the disputed land and made observations by itself that no trees had been cut. 5 On the third ground of appeal, the respondent submitted that, the tribunal was correct in finding that there was a cattle path and the same was witnessed by it when it visited the disputed land. On the fourth ground of appeal, it was the respondent’s reply that, the language used at the tribunal at all times was Kiswahili and both sides were accorded the right to be heard in a language they understood therefore it is wrong to say that the DLHT chairperson infringed the rights of the appellant by using the language which was not known to her. On the fifth ground of appeal, it was the respondent’s response that, the cases cited by the appellant do not support her position. It was his prayer that the appeal be dismissed entirely. In rejoinder, the appellant reiterated that, she is the lawful owner of the disputed land and the respondent a mere trespasser and that the DLHT failed to take into consideration of this and in contrast to what was found by the ward tribunal. Further to that, the disputed land consisted of trees and bushes and the “mapping records” of the ward tribunal shows the existence of trees on the disputed land. 6 On the issue of the language used, it was the appellant’s contention that the right of the applicant was taken away by the DLHT because the language used was mixed. Lastly, it was the appellant’s submission in rejoinder that, the appellant was denied the right to tender some documents, hence the DLHT erred in law and facts by failing to admit crucial documents from the ward tribunal concerning beacons of the suit land. Having gone through the record of the DLHT, the memorandum of appeal as well as the counter arguments by the parties, what is left for this court to do is to decide the merits or otherwise of this appeal. In the first ground of appeal, the appellant assails the decision of the DLHT and argued that it failed to evaluate the evidence of the appellant, SM2 and SM3 (both witnesses for the appellant). Having gone through the typewritten records of proceedings before the DLHT, SM2 (Peter Seni) gave evidence to the effect that the appellant inherited the disputed land from her father and that the respondent trespassed on the same and cut some trees. Meanwhile, SM3 (Sungwa Butene Ngonho) also gave evidence that the disputed land belonged to the appellant and the respondent was a trespasser who also cut the appellant’s trees on the disputed land while also 7 removing beacons, aloe vera and sisal which acted as natural boundaries. In his judgment the learned DLHT chairperson was satisfied that when the appellant’s family distributed the property of the late Butene (the appellant’s father) which distribution included the land in dispute, neighbouring land owners were not involved and were therefore unable to confirm the boundaries. The learned chairperson, after visiting the disputed land, was also satisfied that there were only seven small trees present and also the natural boundary between the land belonging to the respondent and that of the appellant seemed to be a cattle trail. He was not convinced that, the disputed land had 600 trees alleged to have been cut by the respondent. Thus, from the above I do not find the first ground to have any merit. As stated previously, the learned DLHT chairperson visited the disputed land and was convinced that only seven small trees were cut. But there is also discrepancy on the side of the appellant and her witnesses. While the appellant claimed that 600 trees were cut by the respondent. Both SM2 and SM3 gave evidence that what was chopped and taken by the respondent was firewood. 8 Furthermore, while at the locus in quo when the appellant was being examined the learned DLHT chairperson also confirmed that only two large trees and seven small trees were seen. The learned chairperson in his summing up at the locus in quo was adamant that 600 trees were not seen. This view of the failure to prove that 600 trees were cut by the respondent was equally and unanimously shared by both assessors. The second ground of appeal, therefore, lacks merit as well. The learned DLHT chairperson visited the disputed land and observed that the boundary between the appellant’s and the respondent’s respective lands was a cattle trail, the DLHT assessors also shared this view unanimously. I find no reason to fault the DLHT’s findings on this matter. The third ground of appeal fails. At page 4 of the DLHT typed proceedings, the records shows that the appellant complained that she was not conversant in Kiswahili and upon the DLHT quizzing as to why she was conversing in Kiswahili previously and was suddenly claiming that she was not conversant, the appellant is on record having stated that she would proceed in Kiswahili. The appellant complaining that the use of Kiswahili affected her case at 9 the DLHT seems to be an afterthought. Subsequently, the fourth ground of appeal is unmerited. The duty of tendering documentary evidence lay with the parties to the trial at the DLHT. It is not on record that the DLHT refused to admit any documentary evidence offered by the appellant. In actual fact it was the DLHT which reminded the appellant to bring the necessary documents and formally tender them. The fifth and final ground of appeal lacks merit as well. In the end the appeal lacks merit and is accordingly dismissed with costs. DATED at SHINYANGA this 18th day of October, 2024. N.L. MWAKAHESYA JUDGE 10