selemani shabani vs mbebho mahamudu 2023 tzhc 17242 12 may 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF KIGOMA AT KIGOMA MISC.LAND APPEAL NO. 8 OF 2022 (Arising from Land Appeal No. No. 48/2020 in the District Land and Housing Tribunal for Kigoma at Kigoma and Nguruka Ward Tribunal Land Case 32 of 2019) SELE MANI SHABAN I ■ •••• ■I •••••••••••••••••••••• I •• I I ••• I ••••• APPELLANT VERSUS MBEBHO MAHAMUDU RESPONDENT Date of Last order: 04 .OS. 2023 Date of judgement: 12 .OS. 2023 JUDGEMENT MAGOIGA, J. This ls.an appeal against the judgment of the District Land and Housing Tribunal in Land Appeal No. 48 of 2020 arising from Nguruka Ward Tribunal in Land case No. 32 of 2019. In a nutshell, at Nguruka Ward Tribunal, the appellant Selemani Shabani sued the respondent Mbebho Mahamudu in Land case No.32 of 2019 for ownership of a piece of land located at Nguruka Ward. The trial Tribunal decided in favour of the respondent. Aggrieved, the appellant ~ 1 a p pea le d to Di s trict La ri d a n d H o us in g T rib u n a l v ide L a nd A pp ea l N o .4 8 o f 20 2 0 w h ic h as s ta ted a bo v e d ismis sed th e a p pea l. U ndaun ted h e h as co m e to th is C o u rt w ith th e in s tan t a p p e a l a rm e d w ith fo u r g ro und s o f a p p e a l n a m e ly : - 1. T h a t th e a p p e lla te T ribun a l e rre d in la w b y d is miss in g the a p pea l with o u t c o n sid e ring tha t th e ev id e n ce s b ro u g h t b y th e re sp o nde n t w e re w e a k c o m p a red to tha t b ro u gh t b y th e a p p e llan t; 2 . Th a t, th e a p p e lla te T rib u n a l e rred in la w a nd fa ct fo r n o t e v a lua tin g cl e a rly the e v id e n ce o n rec o rd a nd h e n ce c o min g o n its o w n fi nd in g ; 3 . Th a t, th e a p p e lla te trib u na l e rred in la w a nd fa ct by n o t n e g le ct in g th e re a so n tha t th e re w e re so m e o f ev ide n ce s tha t w e re n o t re co rd e d by tria l tribuna l; 4 . Th a t, so m e o f th e g rou n d s o f th e a p pea l w e re n ot d e te rmine d by the a p p e lla te T rib u n a l. On the a bov e g round s, th e a p p e lla n t p ra y ed th a t th is c ou rt b e p le ased st to a llo w th is a p p e a l, th e de c is io n s o f bo th tria l a n d 1 appellate Tribunals be set aside, the cost of the suit be borne by the respondent and any other reliefs to be granted by the court. When this appeal was called on for hearing, the appellant was enjoying ~ 2 the legal services of Mr. Thomas Msasa, learned advocate, while the respondent appeared in person and unrepresented. Mr. Msasa started by telling this court that he drops grounds number 3 and 4, which same were so noted and marked dropped. Submitting on the first ground told the court that, the appellant's complaint is that the evidence by appellant was heavier than that of the respondent. He then prayed to the court to argue grounds 1 and two j o i n t ly . He argued that, looking the trial Tribunal proceedings and the evidence of the respondent who testified to have bought the disputed land from Boaz Kivumbi on 19/7/2019 and a contract of sale was tendered in the trial Tribunal, in the said contract the neighbors were on East Mzee Seleman who is the appellant. He argued, according to Boaz's testimony, the disputed plot was not his but his father's. That, he was the key witness who testified to have sold without authority to sale the disputed land. He further submitted that Boaz, the seller also admitted to have a land there which is bordered by Bulegeya. The seller and buyer never showed boundaries nor did they involve neighbours and that no description of the land sold to avoid all this conflict. Mr. Msasa prayed 3 and asked this court to reevaluate evidence and come with fair and just conclusion. It was the appellant's learned counsel further submission that, the appellant bought the disputed land in 1997 and he has been in occupation of the same since then and he called Musa Shaban to prove so. Mr. Msasa pointed out that the appellant developed the disputed land ever since by planting crops and that there are mango trees t h e r e in . Mr. Msasa went on submitting that, the dispute arose in 2019 after sale as prior to that, no dispute over the disputed land. He prayed the court to allow this appeal on these two grounds. He added further that the first appellate Tribunal failed to evaluate evidence and reached a wrong conclusion. To buttress his arguement he cited the case of Elias Mwangoka @ Kingloli vs Republic, Criminal Appeal No. 96 of 2019 CAT Mbeya (unreported) at page 17 where it underscores the point that the 2nd appellate court can interfere if there is, misdirection or non-direction of evidence or omission to consider available evidence. On the strength of the above submissions, he invited this court to do so and declare the appellant lawful owner of the disputed land with costs. ~ 4 In response, the respondent in these grounds opposed the appeal and prayed this court to let his reply to memorandum of Appeal to be considered and dismiss the appeal with costs. For the purpose of proper understanding of this appeal, I will also reproduce the reply which is to be taken as the submission on the part of the respondent as hereunder stated; 1. That the appellate Tribunal was right in law to dismiss the appeal after considering the evidence of both parties. The evidence of the respondent was strong and proved to that standard required compared to that of the appellant. 2. That the appellate Tribunal was right in law to dismiss the appeal after assessing and evaluating the evidence adduced by both parties. It is further stated further that after assessment, the evidence of the appellant is found weak compared to the strong evidence of the respondent. 3. That the third ground of appeal is groundless and should be ignored, this is due to the fact that, all important evidence adduced by both parties were with no doubt recorded. It is further stated that, after assessment the evidence adduced by the ~- 5 appellant was contradicting with that adduced by his own witness as on record. The appellant is bound to prove this claim. 4. That the 4th ground of appeal is groundless and it should be ignored because all grounds of appeal were determined by the appellate Tribunal. It is further that, that appellant wants to mislead this honourable court when making its rational decision. Having carefully gone through the grounds and reply of appeal and also the submission for and against the appeal, and after going through the evidence on record in the trial proceedings, I find the central issue for determination in this appeal is whether the appeal has merit or not. Coming now to the merits of this appeal, in particular, on the first and second grounds of appeal, having carefully followed the rivaling arguments of the parties, and considered all argued and the record of appeal, in my own considered opinion, I find the arguments by Mr. Msasa that the appellate Tribunal erred in law by dismissing the appeal without considering that the evidences brought by the respondent were weak compared to that brought by the appellant misocnceived. In my own evaluation, I find both Tribunals did evaluate clearly the evidence on record and hence came to fair and just conclusion. I will explain. One, as to the evidence on record especially the trial tribunals records, there is no doubt that both parties were heard and were accorded th~ 6 chance to adduce evidence and bring their witnesses. I have taken tro uble to visit the trial tribunals record and found that both the appellant and the respondent brought their respect ive witnesses. My interest also is in on the way these parties acquired the suit land. While the appellant claim to have got the suit land since 1997, his witness Mussa Shabani testified to have witnessed the sale betw een the appellant Selem ani Shabani and Mzee Jelemia for a consideration of 80,000/=. Th is witness was categorically that the said sale was not written any where. The respondent on the other hand claim to have aquired the same on 19.07.2019 after having bought it from Boazi Kivum bi at a consideration of Tshs 300,000/= who acquired the same in 1991 together with his father who is no more since 2000. It is also on record that the sale transact ion was evidenced by the sale agreement "YAH: MAUZO YA SHAMBA" dated 19.07.2019 witnessed among others by "Mwenyekiti wa Kitongoji on 19.07.2019". Fortunately the trial Tribunal pro ceedings were well organised to the extent that the proceedings are in good order for me to make a follow up. The picture I got was that the only witness brought by the appellant testified to the ext ent that the appellant bought the land at isuue but nothing was shown to evidence such transact ion. It is a known principle that in unregistered land, proof of ownership is by way of production of sale ~ 7 agreements for which the respondent had a proof of and had tendered before the tribunal. The appellant never tendered any evidence to prove that he is the owner of the suit land in question by way of buying. Hence the appellant failed to establish his ownership over the suit land. The respondent was able to show boundaries of the land in accordance to exhibit D1. I am fortified by the decision in the case of Hemed Said v Mohamed Mbilu (1984) TLR 113 which stated that; " ... the person whose evidence is heavier than that of the other is the one who must win. " To my view, the evidence by the respondent is hevier than that of the appellant and I find that the respondent is the owner of the suit property and I have no justifiable reasons to differ from the concurent findings of the two lower Tribunals. · In the upshot and for reasons stated above, I find the entire appeal non-meritorious. Consequently, I do hereby dismiss this appeal in its entirety. The 8