Judgement Land Appeal No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI LAND APPEAL NO. 64 OF 2023 (C/F Application No. 130 of 2021 in the District Land and Housing Tribunal for Moshi at Moshi) DONATH PETER MUSHI...........................................................APPELLANT VERSUS ADOLF JOHN MUSHI………………………………....…... 1ST RESPONDENT MATHIAS LAURENT T/A KILICRAALS ADVENTURE AND SAFARIS AUCTIONEERS………..…..2ND RESPONDENT JUDGEMENT 5th March & 10th April, 2025 MONGELLA, J. The appellant herein preferred Application No. 130 of 2021 in the District Land and Housing Tribunal for Moshi at Moshi (hereinafter, the Tribunal) against the respondents over a piece of land measuring 55 paces in length and 35 paces in width (the suit land, hereinafter). The land in dispute is situated at Shinga Sub-hub within Shinga village at Uru Kusini Ward in Moshi District and Kilimanjaro Region. The land is said to be bordered on the North by one John Page 1 of 20 Daudi; the South by one Alex Peter; West by one Vicent Peter and on the East by one Avit Anizeth. The appellant’s claim was that the suit land is part of his land measuring 180 paces in length and 60 paces in width with the same boundaries described earlier on. He claimed that the 2nd respondent had served him a 14 days’ notice of intention to auction the suit land. That, the notice stated that the same was to satisfy payment to the 1st respondent against his son, Godfrey Donath Mushi, as ordered by Uru primary court within Moshi District in Shauri la Jinai No. 41 of 2019 (hereinafter, the primary court). Allegedly, upon being served the notice, the appellant filed objection proceedings against the respondents claiming that the suit land was his and not his son’s. The Primary Court dismissed the objection and ordered the execution procedures to proceed. The appellant thus preferred the case at the Tribunal claiming the following reliefs: an order restraining permanently the respondents, his agents, assignees or any other person acting under their instruction from interfering with the applicant's possession of the suit land; a declaration that the applicant is the lawful owner of the suit land; costs of the suit and any other reliefs the Tribunal deemed fit and just to grant. On the other hand, the respondents claimed that that suit land belonged to Godfrey Donath Mushi, a fact revealed by records. They thus sought for the application to be dismissed with costs. Page 2 of 20 Upon presenting their cases, the tribunal found the appellant had failed to establish his claim. His claim was thus dismissed with costs. Aggrieved, the appellant has preferred this appeal on the following grounds: 1. That, the trial Chairman grossly erred in law and facts in failing to properly evaluate and analyse the evidence adduced at the trial which led to miscarriage of justice 2. That, the trial Chairman erred in law and fact to dismiss the application without visiting the locus in quo which led to miscarriage of justice as the evidence relied upon by the respondents is the existence of graves to the suit land which the Chairman termed it to be heavier evidence on the respondents' side. 3. That, the Honourable Chairman erred both in law and in fact having dismissed the application without considering the evidence adduced by the appellant's relatives who knew better the appellant's family and considered the evidence adduced by the respondents and his three blood relatives without collaboration of other witnesses. 4. That, the Judgment and Decree of the trial Tribunal are vitiated by irregularities having stating the evidence based on allegation of the appellant showing the suit land to the village executive secretary (VEO) while the Village Executive Page 3 of 20 Officer was never called as witness during the hearing of the application to testify the same without any reason. 5. That, the Honourable Chairman misdirected himself for considering and relying on untrue evidence adduced by the respondent and his witnesses consequently arrived at a wrong decision. The appeal was entertained viva voce whereby the appellant was represented by Mr. Emmanuel Karia, learned Advocate and 1st respondent was unrepresented. The case proceeded ex parte against the 2nd respondent as he did not appear in Court for hearing despite being aware of the matter. Mr. Karia commenced his submissions by giving a brief account of the matter. He then pointed out fact which he said were not in dispute, being that: Godfrey Donath Mushi was found criminally liable by Uru Primary Court; that Godfrey Donath Mushi was the appellant’s son and that the Primary Court appointed the 2nd respondent to attach and sale the suit land. He asserted that what was in dispute was whether the land in dispute was the property of the appellant or of his son-Godfrey Donath Mushi. Addressing the 1st ground, Mr. Karia submitted that Section 110 of the Evidence Act [ Cap 06 R.E 2022] settles that in civil matters, the one who alleges bears the duty of proving the alleged facts. He stated that the appellant filed Land Application No. 130 of 2021 claiming that the land which was ordered to be attached by the Page 4 of 20 Primary Court was his own property and not of his son. In proving that, the appellant explained to the Tribunal that the land is his by virtue of inheritance from his father, he explained that, by Chagga customs there are traditional procedures to be followed to inherit the land. The learned Counsel further averred that the appellant, in proving the procedures, brought two of his relatives and the Mushi clan Chairman. He claimed that the appellant and his relatives explained to the Tribunal that he got the land from his father one Mzee Peter Kitau in 1977 and has been using the land for all the time until 2021 when it was trespassed by the 1st and 2nd respondents on the claim that they were executing a court order. He alleged that the appellant explained that he had never given the plot to his son Godfrey Peter Mushi for him to obtain rights to sell the land. That, the appellant further explained before the Tribunal that the procedure his son was to follow to get that land would have involved his relatives, as per Chagga customs. In corroborating the appellant’s testimony, Mr. Karia argued that even the clan Chairman and one Laurent Mushi denied Godfrey being allocated the suit land. Mr. Karia alleged that the respondent’s evidence was that the suit land was property of Godfrey Donath Mushi by virtue of being allocated by his father. He said that they brought witnesses, one Remmy Karoli Mushi and Stephan Karoli Mushi, who are blood relatives of the 1st respondent, and who told the Tribunal that the Page 5 of 20 appellant had already allocated the suit land to his son, without furnishing any evidence. In his stance, the appellant’s evidence carried more weight than that of the respondents as the appellant’s witnesses knew the suit land very well and are clan members. On those bases he challenged the trial Tribunal for failure to direct itself properly in evaluating the evidence on record. Submitting on the 2nd ground, the learned Counsel alleged that the 2nd respondent mentioned the presence of graves of Donath Mushi’s children and the house of Godfrey Donath Mushi and “Masale” trees creating boundaries. On the other hand, he said, the appellant had mentioned there being family graves in the area and not only those of Godfrey’s children. In the premises, contended that the variation could only be ascertained by a visit to the locus in quo. He claimed that otherwise, there remains no sufficient evidence to prove that the land in dispute was already allocated to Godfrey Donath Mushi. On the 3rd ground, while reiterating his submissions on the 1st ground, Mr. Karia briefly argued that the family members of Donath Peter Mushi know well the land in dispute. With respect to the 4th ground, he averred that during hearing of Application No. 130 of 2021, the respondents’ witnesses told the Tribunal that it was the VEO who proved that the land in dispute belonged to Godfrey Donath Mushi. He challenged that piece of Page 6 of 20 evidence arguing that the said VEO was however not brought as a witness during hearing of the case. In the premises, he as well challenged the Tribunal decision which, he said, based on the alleged evidence by the VEO who was not called to testify. In his stance, since the VEO never adduced any evidence, it was incorrect for the Tribunal to rely on the VEO’s words in its decision. He termed the act of the respondent’s witness reproducing what they were told by the VEO as weak evidence which ought not to be relied upon by the Tribunal. Mr. Karia finalized his submissions in chief by abandoning the 5th ground. The appeal was opposed through oral submissions by the 1st respondent. In his reply, he challenged the appellant’s assertion that all the witnesses were relatives. He averred that there were other witnesses who were neighbours. He named the alleged witness being, the village Chairman named Clemence, who was the village Chairman; one Stephan Karoli who he said is a close neighbour; one Remmy Karoli who is behind the appellant’s farm, which is the land in dispute; and one Pius Joseph who was also witnesses to the bequeath of land to Godfrey and before the Tribunal during hearing. He further alleged that the appellant had already bequeathed the land to his son-Godfrey and “Masale” plant boundary was already put demarcating his land with that of his father. He alleged that the people that put the “Masale” boundary were Remmy Karoli, Page 7 of 20 Stephan Karoli and other people. That, Remmy Karoli and Stephan Karoli were witnesses on the bequeath of the land to Godfrey. Addressing the challenge regarding failure of the VEO to appear and testify, the 1st respondent averred that the VEO was already transferred to Tabora at the time of hearing of the suit before the Tribunal. He however contended that they nevertheless paraded five (5) witnesses to prove their case who the told the truth that the farm belonged to Godfrey. Defending his position that the suit land is owned by Godfrey, he argued that Godfrey built a house thereon, married and later turned the house into a business house whereby he and his wife conducted a business of selling soup. He added that Godfrey and his wife had two (2) children who unfortunately passed away were buried in the suit land whereby their graves are still in the suit land. He claimed that after the burial which he also witnessed, Godfrey built a mud house. That, after a while, he managed to purchase blocks, sand and stones, but was later faced with criminal charges and was imprisoned for 6 months. That, after the 6 months, he was told to re-pay the TZS 6 million belonging to a group of women being half of the claimed amount. He alleged further that while Godfrey was still in prison, the appellant went and took the sand, blocks and stones. That, he as well demolished the house to remove the exhibit, but left the graves there. That, upon seeing what was done by the appellant, they went to obtain copy of the Primary Court decision. However, he said, when Godfrey saw that, he escaped. In the premises, the Page 8 of 20 Primary Court issued them a letter to take to the appellant. He claimed that the appellant was visited by him in company of other group members. He alleged that it was the appellant that showed them the land belonging to Godfrey. The 1st respondent went ahead explaining that they went with a broker and the VEO to check the suit land whereby the broker measured the length and width and found it to be 55 x 35 paces size. He added that when they left the place, the learnt that the appellant had gone to the police to take a letter whereby he was instructed to go to the court and so he went to court. Thereafter, he said, they were summoned in court and told to write their opinion, but the appellant failed to write his. They later noticed that they had been sued for invading the appellant’s farm whereby he was sent by fellow group members to appear in court on their behalf. Rejoining, Mr. Karia stressed that the appellant’s evidence as to ownership of the farm was heavier than that of the respondents as the appellant and his witnesses told the trial Tribunal that the land was never bequeathed to Godfrey. Regarding the argument that Remmy put “Masale” plants for boundaries, Mr. Karia challenged the same for being a new fact not canvased at the Tribunal. With respect to the assertion that there were graves at the suit land of Godfrey’s children, he averred that there was confusion as to the said graves. As such, he contended that since the Tribunal saw it as an important issue, it Page 9 of 20 ought to have visited the locus in quo to ascertain presence of the alleged graves. He as well challenged the argument that the appellant showed them Godfrey’s land contending that it is a new fact, not stated at the Tribunal. He claimed to have denied the land belonging to Godfrey since the matter was tried at the Tribunal. While noting that the respondent had confessed on not calling the VEO to testify, he maintained his stance that such failure was fatal as the respondents’ evidence based on the VEO’s statements. He finalised his submissions praying for the appeal to be allowed. After considering the rival submissions of the parties and the trial Tribunal record, I find that grounds 1, 3 and 4 concerns analysis of the evidence on record by the trial Tribunal. Ground 2 raises concerns as to visiting the locus in quo. As such, I find it apposite to commence by summarizing the evidence on record by both parties and thereafter resolve the issues in question. At trial, the appellant testified as SM1 and had two witnesses, being SM2, one Casmir Anthony Mushi and SM3, one Laurent Mushi. His testimony as to ownership of the suit land was to the effect that; he was given the suit land, which is part of his land, by his parents, way back in 1977. He alleged to have enjoyed peaceful use of the land since then to 2022 when the respondents trespassed. He denied allocating the suit land to his son Godfrey alleging that even the Chagga customary rites to hand over the land were never really Page 10 of 20 done. In cross examination, he alleged that in the suit land, there are graves for his parents and two of his siblings and flowers. SM2, allegedly the clan chairman, testified as to witnessing the handover of the land belonging to the appellant by his father in 1977. Explaining the size of the land, he said that the same measured 85 x 80 paces. He further testified on being informed of the trespass by the respondents and advising the appellant to seek justice. He too insisted that the appellant never performed any customary rites to allocate the land to his son Godfrey. SM3’s evidence was that: he as well witnessed the appellant being given the land in 1977 whereby it measured 180 x 60 paces. He too alleged that the appellant never distributed any part of his land. When questioned by an assessor, he alleged that the suit land had not less than 5 or 6 graves. That, the graves included those of the appellant’s parents and his grandchildren. The defence case had 5 witnesses whereby the 1st respondent testified as SU1. Other witnesses included SU2, one Clemence Gervance Chuwa; SU3, one Stefan Karoli; SU4, one Remy Karoli and SU5, one Pius Joseph. The 1st respondent’s testimony was in regard to the incidence that led to a claim of TZS. 12,000,000/=. He narrated that he is a member of MWANAWARUA group and the mentioned amount was stolen from his home. That, the theft incidence was reported to the police and eventually it was found that one Godfrey Donath Mushi, the Page 11 of 20 appellant’s son and one Pendo Priscus, were the culprits. He said that it was then that the matter was brought before the Primary Court whereby the two were convicted and sentenced to serve 6 months imprisonment. He added that the culprits were also ordered to pay the amount after their release, but they defaulted leading the group members to claim the amount whereby execution proceedings took effect. He explained further that the execution process culminated into the dispute at hand whereby when the appellant was served with the notice for execution, he claimed that his son had no property in the area and the suit land was not his son’s, but his. The 1st respondent insisted that the suit land belonged to Godfrey as he had constructed a mud house on it and had been conducting soup business at the place. He further claimed that Godfrey had as well brought sand and blocks into in the land and that his two children were buried in the suit land. He further stated that the mud house was demolished by the appellant when Godfrey was imprisoned. That, the sand and blocks were also removed from the suit land and placed at the appellant’s home. He also alleged that the boundaries were also removed by the appellant. When questioned by an assessor, he stated that the appellant was the one that showed the boundaries of the suit land to the group members, neighbours and the VEO. SU2, chairman of Shinda village, testified as to the theft and involvement of Godfrey Mushi and Pendo Priscus in the incident. Page 12 of 20 SU3 testified that on 26.01.2021 the Shinga VEO visited the appellant in company of group members. He said that, when they arrived, the appellant showed the VEO Godfrey’s land, which was measured and found to be 55 x 35 paces. He explained further that when they finished measuring the land, a dispute arose between the appellant and the 1st respondent leading the group members to leave. He also alleged that in February 2021, the appellant moved the sand to his home and later demolished the mud house. That, the appellant thereafter planted banana trees and coffee on the suit land and uprooted the “Masale” plants boundary set thereat. SU3 alleged to have witnessed the suit land being handed to Godfrey. SU4’s testimony was that; on 26.01.2021, he witnessed three people coming to measure the suit land, whose boundaries were demarcated by “Masale” plants. He alleged that the suit land belonged to one Riziki (impliedly Godfrey), who had built a house and also purchased materials to build a modern house in the area. He claimed that Riziki’s children were also buried in the suit land. He also claimed to have witnessed the suit land being given to the said Godfrey whereby he also took part in the rites on bequeathing the suit land. He insisted, in cross examination, that the entire land was already distributed to the appellant’s children. When questioned by an assessor, he insisted that he was the one that planted the “Masale” plants used as boundary mark on the suit land. Page 13 of 20 SU5’s testimony was about the dispute that led to the attachment of the suit land. He too visited the suit land with other group members whereby the VEO measured the land and found it to be 55 x 35 paces. He insisted that Godfrey lived and conducted business at the suit land. When examined by assessors, he stated that he was not involved in the ceremony in which Godfrey was given the suit land, a statement which varied with that of SU4 who mentioned him to be involved. He further averred that the VEO identified the land upon being shown by a group member. Considering that the issue of visit to the locus in quo was also raised, and the same being a point of law, I will first address this issue. While, on one hand, the appellant alleged to have stated that family graves are in the suit land including those of Godfrey’s children; on the other hand, the respondents alleged that it is only Godfrey’s children’s graves are found in the land. I wish to note that, the law is well settled that visiting of locus in quo is not a mandatory requirement. This act is performed at the discretion of the court or tribunal where it is necessary to do so to ascertain facts/evidence adduced by the parties for just decision to be rendered. In Sikuzani Saidi Magambo & Another vs. Mohamed Roble (Civil Appeal No. 197 of 2018) [2019] TZCA 322 TANZLII, the Court stated: “As for the first issue, we need to start by stating that, we are mindful of the fact that there is no law which forcefully and mandatory requires the court or tribunal to conduct a visit at the locus in quo, as Page 14 of 20 the same is done at the discretion of the court or the tribunal particularly when it is necessary to verify evidence adduced by the parties during trial.” Upon observing the evidence on record, I found that the appellant alleged that the suit land had graves of his parents and those of his two siblings. On the other hand, his witness, SM2, alleged that the appellant’s father had set apart ¼ acre of land for burial purposes, but did not state whether this burial site was located at the land in dispute. SM3 stated that there were not less than 5 or 6 graves in the suit land, which included those of the appellant’s parents and grandchildren. On their part, the respondents’ witnesses, that is, SU1, SU3, SU4 and SU5, all stated that Godfrey had buried his two children on the suit land. As the witnesses’ evidence goes, it is apparent that there was contention with respect to features on the suit land, specifically the alleged graves. One of the purposes in visiting the locus in quo is to determine the dispute concerning features on the suit land, which are necessary in resolving the contention before the court. In the matter at hand, however, I find there was no need to visit the locus in quo. This is consideration of the fact that the only argued features were graves and that there was conflicting evidence on the appellant’s evidence alone regarding whose graves were in the suit land. Page 15 of 20 In that respect, I am of the view that the visit to the locus in quo would not have resolved the issue. These features alone (the graves) are capable of being moved, hidden or destroyed. They are also unreliable as to prove that the people in the said graves were the people allegedly buried therein. Further, there were claims on other features on the suit land being removed, including the alleged mud house. As such, I find there were no features that would really help determine ownership of the suit land. In the premises, I can conclude that the visit to the locus in quo was not mandatory. The 2nd ground of appeal therefore fails. As apparent, the appellant and his witnesses focused their evidence on establishing that the appellant was handed land, which includes the suit land in 1977 and was still the owner as he never distributed any part of it to anyone. On the other hand, the respondents aimed at establishing that the said Godfrey was given the suit land by his father, the appellant. From the evidence on record, I find there being no much detail from the appellant’s case apart from his denial as to ever distributing the suit land to his son-Godfrey. On the other hand, the respondents, who insisted otherwise claimed that the appellant allocated the suit land to his son Godfrey after observing Chagga rites of passage. SU3 and SU4 allegedly participated in the said ceremony. It is also the evidence of these two that they were told by the appellant to not disclose that he had given land to Godfrey. It is also on record Page 16 of 20 that the boundary was “Masale” plants which SU4 alleged to have actually cut the same from someplace and were planted by the appellant himself. SU5 also testified as to the boundaries over the suit land upon being measured by the VEO being “Masale” plants. It is also on record, from the respondents’ evidence that the appellant used to conduct a soup selling business on the suit land. He got married and had 2 issues that died and allegedly buried in the suit land. It was also alleged that Godfrey had also brought sand and blocks to the suit land, but the same were later removed by the appellant who also uprooted the “Masale” plants serving as boundaries. While the VEO never appeared at the Tribunal, it is apparent that SU3 and SU4 witnessed the handover ceremony whereby appellant allocated the suit land to Godfrey. Their evidence was never shaken on cross examination rendering this Court to believe that there was a ceremony contrary to the appellant’s claims. The law is trite that every witness is entitled to credence unless where the Court finds faults in his/her evidence, such as inconsistencies or the evidence being implausible. See, Goodluck Kyando vs. The Republic, Criminal Appeal No. 118 of 2003. No such flaws are observed in these witnesses’ testimonies to the extent of vitiating the same. With respect to the claim on omission to call the VEO, I wish to start with the legal premise that a party to a case is not compelled to furnish a certain number of witnesses. See, Section 143 of the Law of Page 17 of 20 Evidence Act, Cap 6 R.E. 2022. In the matter at hand, it is evident that the respondents’ witnesses, save for SU2, testified as to the VEO measuring the suit land in their presence. As to who informed the VEO of the boundaries, the same is in question. The 1st respondent and SU3, testified that the VEO was shown the boundaries by the appellant himself. This is not a new fact in this appeal as alleged by Mr. Karia. Further, SU5 stated that it was group members that showed the VEO the suit land. However, it is on record, as testified by SU3, that there erupted a conflict between the appellant and the VEO demonstrating that the VEO forcibly examined the area having acquired details on the land, previously. It thus appears that the VEO came to measure the suit land as attested by all defence witnesses, save for SU2. As the dispute herein is not on the size of the suit land as measured by the VEO, but rather on ownership; I find that the VEO had a very small role to play, thus questions of ownership could not be simply solved by his statement as he too was not aware of the boundaries of the suit land, hence his visit and measuring thereat. The appellant also challenged the Tribunal decision for relying on evidence of relatives. While indeed SU4 and SU5 are relatives, there is no proof that the 1st respondent is also their relative, at least to such closeness as Mr. Kiria claims. The entire dispute seems to be surrounding people that know each other as every witness is from Mushi clan, save for SU2. This shows they are all related. In fact, the Page 18 of 20 law does not prohibit relatives from testifying. What is observed is not the relations of the witnesses, but rather the credibility of their evidence. See, Edward Nzabuga vs. Republic, Criminal Appeal No. 136 of 2008; Amini Ismail vs. The Republic, Criminal Appeal No. 178 of 2015; and Mustapha Ramadhani Kihiyo vs. Republic [2006] TLR 324. The standard of proof in civil cases is on balance of probabilities and parties bear the burden to prove the facts they allege. The court thus weighs the evidence of parties and the party with more credible evidence deserves to win the case. Emphasizing this, the Court of Appeal in the case of Maria Amandus Kavishe vs. Norah Waziri Mzeru & Another (Civil Appeal No. 365 of 2019) [2023] TZCA 31 (20 February 2023) stated: “It is a cherished principle of law that, generally in civil cases, the burden of proof lies on the person who alleges anything in his or her favour. This is the essence of the provisions of sections 110 (1), (2) and 111 of the Evidence Act. It is equally elementary that, since in this appeal the dispute between the parties was of civil nature, the standard of proof was on a balance of probabilities, which simply means that the court will sustain such evidence which is more credible than the other on a particular fact to be proved.” See also: Paulina Samson Ndawavya vs. Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019). Considering the observations I have made hereinabove; I find the respondents’ case held more weight compared to that of the Page 19 of 20 appellant to the effect that it can be ruled that the appellant allocated the suit land to his son Godfrey. The appellant’s witnesses contradicted in some vital information as observed herein compared to those of the respondents. As such, the 1st, 3rd and 4th grounds are also found without merit. In the upshot, the appeal is found to lack merit and is dismissed accordingly, with costs. Dated and delivered at Moshi on this 10th day of April 2025. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 20 of 20