20151207 TZHC Dodoma1

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DODOMA MISC. LAND CASE APPEAL NO. 10 OF 2011. (From the decision of the District Land and Housing Tribunal of KONDOA District at KONDOA in Land case Appeal No. 66 of 2010 and Original Ward Tribunal of KINGALE Ward in Application). r4ll'JA_]IJrVlA SAID •a...I....n......n...u.....u....a.........su, VERSUS HASSAN IDDI NKAMIA& OTHERS ........... .W.W..RESPONDENT JUDGMENT 25thNovember & 071h December,2015 MRANGO, J. This is a second appeal. It arises from the Miscellaneous land case appeal No. 66 of 2010 Kondoa District Land and Housing Tribunal for Kondoa. The same is originated from Kingale Ward Tribunal ri the. decision dated 6/9/201ft The• appellant and the respi1diit are contesting over land ownership of a farm measuring twenty (20)hectares. The tné i ibcätédaf Nandimundi area at lyoli village. The appellant lost the case before the ward tribunal and preffered the appeal to the istrict Lañ& and Hbusing Trbunal for Kondo, however the reodnt 1 4 was declared the rightful owner of the farm in dispute, henceforth the appellant tried her second chance in this court. She raised four (4) grounds of appeal in her Petition of appeal in the following order: That, the honourable, Tribunal erred in law and in facts in deciding in favour of the respondent without considering the evidence witnessed by the appellant. That, the honourable Tribunal erred in law and in facts in deciding in favour of the respondents without considering the evidence that the appellant has been using the land in dispute since 1990 up to 2008 when the respondent interfered. That, the honourable Tribunal erred in law and facts in deciding in favour of the respondents without considering the documentary evidence (sale agreement) brought by the appellant. That, the appeal is in time, the decision of the District Land and Housing Tribunal was on the 13th January, 2011 and that there are overwhelming chances of success in this appeal. Wherefore, the appellant prays for the court to allow the appeal and declare the appellant the righiful owner of the land in dispute 1 - with costs. On the other side, the respondent objected the appeal on the following grounds on the reply: 1. That, the District Land and Housing Tribunal of Kondoa District reached a proper dedsion in view of the evidence on record. 2 2.: That, the appellant failed to prove her alleged use of the land in dispute since 1990 as there was no evidence to prove so. 3. That, in view of the testimony of the respondent and that of Ramadhani Twaja, the District Land and Housing Tribunal properly rejected the alleged documentary evidence brought by the appellant. Ms. Bahati Colex, learned Counsel advocated the respondent and the appellant appered in person, Unrepresented. When the matter was called for hearing, the appellant submitted that the land in dispute is her property she bought in 1990 for Tshs. 6,5001= and she was with her late husband in the process and the husband died in 1996. The information she have is that the Land is dispute was sold in 2008 and she is in land since 1990 when she stopped to use it after the dispute of ownership has arouse. She therefore requested this court to declare her as the rightful owner of the land in dispute. On the other hand, Ms. Bahati Colex learned Counsel for the respondent submitted that the appellant failed to prove ownership of the land in dispute at Kingale ward tribunal. The sale agreement she mentioned was not tendered at the trial and it was not known how it came at the District Land and Housing Tribunal record, and it was not signed by the parties. The Ward Tribunal record indicates that the appellant's husband died in 1997 and the sale agreement made in 199 was considered by thë WardffibunaL 3 The respondent proved by evidence how they acquired the land in dispute by tendering the sale agreement and the seller himself testified before the ward tribunal and no one testified to support the appellant's that he/she witnessed the sale agreement between the appellant and the one who is alleged to have sold her the suit land In the rejoinder, the appellant insisted that it was her late husband who purchased the suit land on 5/5/1990 in her presence as a result she is the rightful owner of the land in dispute. Briefly, that is what transpired in this court in a nutshell. The crucial issue for consideration now before this court is whether this appeal has merit or not. I have considered with great core the submissions made by both sides; the ground of appeals and the reply to the Petition of appeal and perused the two lower tribunal records and I think it appropriate to reproduce the testimonies of one Ramadhani Twaja who is alleged to be the former owner of the land in dispute and the seller and he said: "Ilikuwa sasa ni mwaka wa tatu hivyo Mwajuma Saidi aUuza shamba langu nilimuita Kondoa kumuuliza mbona ameuza shamba langu? akaniambia huyu simfahamu ikabidi niwauzie watu watario shamba larugu. Mimi niliwauziambele y Ofrr ya kata Kingale". This is a dear evidence that the suit land was sold to the Of refuted to have sold his land to the appellant's husband in 1990 as it was alleged by the appellant. When the Ward Tribunal was deciding the suit land, the following was the remark from the ward tribunal and I quote: "Kama inavyoonyesha kwenye vielelezo kutokana na Madal ya Mdaiwa ameshindwa kuwasilisha vielelezo kama anayodai yeye mwenyewe kuwa aliuziwa shamba na Ramadhani Twaja". It is also from the trial tribunal record that the appellant's husband died in 1997. It could be therefore practically impossible for the deceased to have made any transaction in 1990 while he was not alive. The sale agreement which was allegedly to have been considered by the chairman District Land and Housing Tribunal was not an agreement worth any consideration since the same was not tendered at the trial. Its authenticity is questionable and it does not even bare the signatures of the purported witnesses in the names of Ramadhani Mjanja and Athumani Ramadhani Twaja. It is out of this situation the appellant has failed to challenge the ddsiin fthê two tribuhãl. Th réspbhdëht h rnañaédtó establish good title and proved by evidence how they became the righiful owner of the suit land. in the event I am of the considered view that the appeal is devoid of any merit and accordingly is dismissed with costs. 5 It is ordered. (D.E.MRANGO) JUDGE 07/12/2015 Right of Appeal fully explained. (D.E.MRANGO) JUDGE 07/12/2015 Delivered today the 07th day of December, 2015 in presence of the appellant in person and in the absence of the respondents. - (D E MRANGO) JUDGE 01 07/12/2015