gilbert mwananzila vs edward kumbakumba 2024 tzhc 240 13 february 2024

IN THE HIGH OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA LAND CASE No. 7 OF 2023 GILBERT MWANANZILA... .......... ............PLAINTIFF VERSUS EDWARD KUMBAKUMBA..... ........... ..........................DEFENDANT JUDGMENT 08/11/2023 & 13/02/2024 MWENEMPAZI, J.: The plaintiff herein claims for the declaratory order against the defendant that he is a trespasser on his farm (disputed land) measuring 162 acres located at Katapulo village at Mkowe ward in Kalambo District within Rukwa region. That, the plaintiff was declared the lawful owner of the disputed land against Thomas kumbakumba (relative of the defendant) via Land Case No. 06 of 2018, Misc. Land Application No. 23 of 2009 and Misc. Land Case No. 06 of 2010. Unfortunately, Thomas Kumbakumba kicked the bucket and therefore, Peter Kumbakumba was appointed the administrator of his estate. In that, the Plaintiff herein filed a Misc. Application No. 10 of 2020 for executing i ah order of Mkowe Ward Tribunal dated 09/10/2008 against the judgment debtor, Peter Kumbakumba in which the outcome was that the latter released the disputed land to the Plaintiff. However, the Plaintiff was convicted and sentenced for the offence of manslaughter before being conditionally discharged two years later. It was during his time in custody when the defendant trespassed into his land and unlawfully possessed the same up until/recently.-.which has caused economic loss to the plaintiff, as he has cleared 1000 trees planted by the plaintiff as investment to which its value is estimated at Tshs. 200,000,000/- and a cause of action which entitles the plaintiff to claim for specific damages and general damages and that the disputed land is worth 450,000,000/=;. It is in the plaintiff's prayers that this court delivers judgment in his favour •'Vp’/.X- '• ' by declaring the defendant.a trespasser to the disputed land and that the plaintiff is the rightful owner. He also prays for orders that the defendant be ordered to vacate the disputed land and be restrained from entering it and disturb the plaintiff's enjoyment of his possession, and that, he should pay specific damages of Tshs. 200,000,000/= for the trees planted by the plaintiff as investment and pay for general damages of Tshs.: 150,000,000/= as per the discretion of this court, and lastly this court be pleased to grant an interest of 12% from the date of judgment to the date 2 of full payment in full, costs of thus suit to be borne by the defendant and any other relief(s) this court shall think fit and just to grant. On the other hand, the defendant filed a written statement of defence which strongly disputed the claims as he put the plaintiff to strict proof thereof. It is his contention in the written statement of defence that the Plaintiff has unsuccessfully instituted criminal cases of trespass against him in different occasions in which he has enjoyed the possession of the disputed land for over 30 years as he grew on the disputed land and has planted permanent crops therein. d It is the defendant's clarification that, the Mkowe ward tribunal's decision was that the boundaries of the disputed land are to be honoured but the plaintiff has disobeyed, the decision and stretched beyond the boundaries in which he has grabbed the defendant's land and claims to be his contrary to his claims in this suit. . The pleadings have raised three issues for determination, namely as follows; 1. Whether the plaintiff is the owner of the disputed land measuring 162 acres located at Katapulo village. 2. Whether the defendant has trespassed into that land. 3. What are the remedies the parties are entitled to. 3 At the hearing of this suit, both parties appeared in person meaning they had no legal representation. In the course of hearing this suit, the plaintiff listed two witnesses apart from himself who will be in: support of his case, while three witness apart from the defendant himself testified for the defendant's side. In support of his case, the plaintiff (PW1) after being sworn testified that, he is a resident of Katapulo village and that he prays for this Court to declare him as the owner of the farm with 162 acres in which it borders Uvundu hill on the east side, on the west side is Ipeta pond, on the North side is Mzee Stanslaus Kanyele and on the south side is Thomas Kumbakumba. ■ He proceeded that, this farm once had a conflict between him and Thomas Kumbakumba, which was referred to the dispute settlement institutes. That, they started: at the Village Council where the late Thomas Kumbakumba refused to attend. Thereafter, he went to sue in the Ward Tribunal, in which it heard the dispute and made its determination by demarcating the borders which existed before the dispute. PW1 proceeded further that, Thomas remained in the south side and he was on the north side. He then prayed to tender the decision of the Ward Tribunal as an exhibit in Land Application No. 6 of 2008. The defendant herein had no objection of PWl's prayer, and therefore, the said decision 4 was admitted in evidence and was marked as Exhibit Pl, He then read it loudly in court. PW1 then added that, from the decision of the Ward Tribunal, Thomas Kumbakumba appealed to the District Land and Housing Tribunal in Application No. 33 of 2009 in which the application was heard and the decision was issued by confirming the decision of the Ward Tribunal. That, Thomas Kumbakumba appealed to this Court in Appeal N0./O6 of 2010, but he unfortunately passed away after he had filed the case. Thereafter, Peter Kumbakumba was appointed as the administrator of his estate. That, the appeal case was heard and the decision of the District Land and Housing Tribunal was affirmed. PW1 then prayed to tender the judgment as an exhibit, whereas the defendant did not object and therefore the said decision of this court as admitted in evidence and marked as Exhibit P2. However, as both parties are not knowledgeable of English language, this court permitted the Court Clerk to read the document and translate it to the parties. PW1 testified further that, after the case was determined at the High Court, it Was returned to the District Land and Housing Tribunal for execution. That, the execution was on 28/05/2012 but the family of Thomas Kumbakumba objected at the District Land and Housing Tribunal 5 that the broker drew new demarcations. That, the objection was determined in Application No. 45 of 2012. PW1 again prayed to tender the copy of the ruling in Miscellaneous Application No. 45 of 2012. And yet again the defendant had no objection, and therefore the Ruling was admitted in evidence and it was marked as Exhibit P3. Leave was again granted by this court for the Court Clerk to read the decision and translate to the parties. TM........ PW1 continued to testify that, after the objection was dismissed and as the family of Kumbakumba were not granting vacant possession to PW1, he then filed against the administratoiof the estate. In which, the decision t- '#• was made by the District Land and Housing Tribunal that, execution should proceed taking note of the borders which were drawn by the Ward Tribunal. PW1: prayed to tender the ruling in Miscellaneous Application No. 10 of 2020, in which the defendant did not object, arid therefore the said Ruling was admitted in evidence and it was marked as Exhibit P4. Again, at the request of PW1, Exhibit P4 was read loudly in court and translated by the Court Clerk after being granted leave to do so. PW1 then testified that, he got problems at the farm as the KUmbakumba's stil did not offer him vacant possession, and therefore he went to the District Land and Housing Tribunal to complain about the same, and he was told that the farm was handed over to him and so he 6 should continue cultivating. PW1 proceeded that, unfortunately, the family of Thomas Kumbakumba went and constructed a kraal at the middle of the farm, and he demolished the kraal. PW1 told the court that he was then arrested and taken to the police station the next day, and at the police station he was told he had murdered a month-old child of Edward Kumbakumba (defendant). That, he was then remanded in prison and thereafter he was taken to court where, he was convicted of manslaughter in Criminal Case No. 69 of 2016 after he had pleaded guilty and he was conditionally discharged on 18/02/2019. PW1 prayed to tender the order and as the defendant had no objection, the said order was admitted in evidence and marked as Exhibit P5. Yet again, leave was granted for the Court Clerk to read loudly Exhibit P5 and translate the same to the parties. Pwl did not end there, he testified further that after he was discharged, he then found Edward Kumbakumba cultivating his farm. PW1 then went to complain to the Regional Commissioner, where a special team which deals with land disputes was instituted, and that the Regional Commissioner ordered the District Commissioner to supervise the handing over of the farm. PW1 prayed to tender a letter with Ref. FA.48/232/01/60 dated 01/11/2019 in evidence. Again, the defendant had no objection and therefore the said letter was admitted in evidence and it was marked as 7 Exhibit P6> PW1 read the letter loudly in court for it was written in Kiswahili language. However, PW1 proceeded that the directives of the District Commissioner were not complied, he then went to the DED to ask for a survey of his Land, and he was given a copy of the sketch map of his farm, he again prays for this to admit it in evidence, of which the defendant had no objection and therefore the said sketch map was admitted in evidence and was marked as Exhibit P7. PW1 clarified: that, Exhibit P7 was issued to him after measurement of the farm. He prays for this Court to order the defendant to leave vacant possession of the disputed; fa rm, PW1 added that, it was Edward who paid costs for the cases PW1 had won against his father. PW1 prayed to tender the same as exhibit, in which the defendant again had no objection and therefore the document for settlement in cost for Miscellaneous Application No. 48 of 2013 was admitted as Exhibit P8. PW1 then read the document loudly in court. In conclusion, PW1 stated that, he prays for Edward Kumbakumba to be removed from the disputed land, and that the exhibits which he has attached which involved criminal cases be removed and those documents for Civil Case be used as part of the evidence in this case. And that, he 8 prays for the defendant to pay him the trees he destroyed and all costs which are there in law and he is entitled. When cross examined by the defendant, PW1 stated that, the defendant was required to leave vacant possession of his farm, and that he borders the defendant's late father's farm. That, he had planted trees in 2014 after the defendant had paid costs for his farm. PW1 added that, they had a case at Matai but it was a criminal case. And that, the ward tribunal members went around the Whole farm and then they drew borders. And that, the defendant planted trees while the case was going on and that the case has been pending for 15 years now. PW1 winded up by stating that the surveyor came with the Village Executive Officer and the chairman of Katapulo Village in which they had signed the guests' book, and. that the late Thomas Kumbakumba had his own farm and PW1 had his, whereas, he was cultivating sugarcane. When answering the questions of the court, PW1 stated that he has no house'at the farm, while the defendant has built a house in the farm, and that he had complained before Khaday Judge (as she then was) but he was told if the decision will be against the defendant, the farm will be destroyed. PW2 was NIKASI ALOYCE, after being sworn he testified that he resides at Katapulo village in Kalambo Village. That the plaintiff is known 9. to him as a farmer at Kata pu Io Village, that he acquired the land in 1987, that the plaintiff obtained the land after those who were occupying the area had abandoned it d u e to animals destructing plaints, and he started cultivating the same. PW2 proceeded that, the plaintiff left, and when he came back, he found the land has been invaded by Thomas Kumbakumba and he complained at the Village elders who advised Thomas Kumbakumba to surrender the land but he did not agree. ’ . . ^., 5" He added that, the complaint went.to the Ward Tribunal where Thomas Kumbakumba was ordered to surrender the land, and he appealed to the District Land and Housing Tribunal, where he was not successful, and then filed an appeal to the High Court but before the case was heard, he passed away, and then Peter Kumbakumba was appointed as the Administrator of his estate. He handled the case, but he was not successful in the appeal. He was thus removed by execution through Court Broker. He adhered to the order of the Tribunal, and then the plaintiff cultivated the land and planted trees - eucalyptus. PW2 proceeded testifying that, in 2015 the plaintiff had legal problem and was incarcerated, as he was in custody, the defendant trespassed into the land and continued to cultivate it. That, when the plaintiff was conditionally discharged, he found the maize he planted is not there and io the trees had been removed. That, this time it was the defendant who was cultivating the farm. And that, the plaintiff commenced to pursue his farm. PW2 added that, in 2021, the Court broker came to remove the defendant but did not succeed. At the time he (PW2) was the village chairman, and to date the defendant continues to cultivate, in which, Peter Kumbakumba left vacant the place and he is utilizing the land his. father left to him. When cross examined by the defendant, PW2 stated that, he was born at Katapulo Village. That, the case started with the defendant's father and that is why he (PW2) did not mention the defendant. PW2 clarified further that he was in the Ward Tribunal, .and that he never said that he was involved. PW2 also stated that he does know what made the plaintiff to be imprisoned. Lastly PW2 stated that when he knew about the removal of the trees he did not take any action because the complainant/plaintiff was in prison and he had no authority to take any step as he was not the owner, and that Thomas Kumbakumba did not install the boundaries, it was the Ward Tribunal which drew the borders. When answering the question of the court, PW2 stated that he doesn't know the people who were using the land before the plaintiff. That, people were afraid of the destruction of plants by the wild pigs. ii That the period he said the plaintiff has travelled, is different to the period he was prisoned, and he was the chairman of the village government for five years. PW3 was CHARLES MYOTO, He too after being sworn he testified that, his testimony is in support of the plaintiff and concerns the farm at Katapulo. That, since he was studying at Katapulo, they were going to work in the farm as casual labors, and that he knows the owner to be the plaintiff. PW3 proceeded that, in 2015, the plaintiff invited them -to go to the farm to saw seeds. That the farm was 6 acres, and that the farm had trees, some were planted and others were natural. He added that he knows the defendant as they studied together. That, he was ahead of him. PW3 stated that, he understands that the dispute started between the plaintiff and Thomas Kumbakumba and that the latter died and left the dispute, whereas Peter Kumbakumba took over as the administrator in which he handled the case. In cross examination, PW3 stated that in 2015 when they were cultivating the farm, trees were present but he never counted them as the focus was on sowing the seeds. PW3 proceeded that, he knows that the Plaintiff owns a farm measured 162 acres. And that, the dispute started between the plaintiff and Thomas 12 Kumbakumba, and as they were going to work at the farm, they knew the owner to be the plaintiff. PW3. added that, when he was still a student, the plaintiff was their employer, and that they were just as casual labourer and thomas Kumbakumba was his neighbor. PW3 finished up by stating that, as far as he understands, the legal instruments decided that the farm belongs to the .plaintiff, W. When answering the questions of the court, PW3 stated that he was studying at Katapulo Primary School, and during that time, it was when they were going to work at the .plaintiff's farm, and he do remember year as it was in 1993. PW3 also stated that, Thomas Kumbakumba has his place where he had built camps and even Peter Kumbakumba, the administrator resides there. The defence evidence was as follows. DW1, EDWARD KUMBAKUMBA testified first that, he was born at Katapulo Village, he grew there as a peasant at Katapulo Village. That, now however, he has shifted to Mkowe Village. He added that, he had stayed at the dispute farm since he was born and to date, he still occupies the farm. He clarified further that; the plaintiff was not testifying the truth by saying that he (defendant) has trespassed to the farm. He added that, when the Ward Tribunal was setting the boundaries, he was present and at the time he had planted 13 mango trees and a garden for banana. That, the sketch map which has been tendered by the plaintiff was objected to on the very date. DW1 testified further that, on 03/02/2014 he was arrested for trespassing to the farm, but the trial Court acquitted him. He added that the plaintiff was not satisfied and so he appealed to the District Court. Whereas, the District Court dismissed the appeal. DW1 added that the plaintiff was again not satisfied, and appealed to the High Court;. but DW1. was also left free. DW1 prayed to tender the decision in PC. Criminal Appeal No. 03 of 2014 as evidence, in which the plaintiff, did not object, whereas this court admitted the said decision in evidence and marked it as Exhibit DI. As it was written in English language, again leave was granted for the court clerk to read loud in court and thereafter translate. DW1 then testified further that, the plaintiff has been lying to this Court, as he said that DW1 had cut 1000 trees and six acres of maize, but DW1 testified that he cannot destroy 1000 trees without there being any exhibit brought to court to prove the same. DW1 added that, the plaintiff testified that he has 162 acres while at Matai he said that he owns 100 acres of land only, of which the claims are false. That, the plaintiff has not tendered any exhibit to prove the same. On the other hand, DW1 prayed to tender the judgment in De. Criminal Appeal No. 87 of 2022 between Edward Kumbakumba versus the Republic, High Court of Tanzania at 14 Sumbawanga. The plaintiff did not object to this prayer and therefore the said judgement was tendered in evidence and this court admitted it by marking it as Exhibit D2. It was then read loudly in court by the court clerk after leave was sought and granted. DWi proceeded that, the plaintiff has been harassing him with the cases and, before the decision of the Ward Tribunal, the whole farm was owned by the late Thomas Kumbakumba, however, upon the decision of the Ward Tribunal, they have remained in the boundaries set by the Ward Tri buna! to-date. T-' DWI added further that, as the plaintiff relied upon the case at the Ward Tribunal, he is surprised by his failure to call the witnesses who set the demarcations/borders at the disputed farm, whereas he (DWI) prays to tender the decision of the Ward Tribunal in Application No. 6 of 2008, and the sketch map drawn. The plaintiff did not object and therefore this court admitted in evidence a Copy of the decision of the Ward Tribunal dated 09/10/2008 and .which is admitted together with the sketch map, they were together marked as Exhibit D3. The court clerk with the leave of this court read the exhibits loudly in court and translated them. DWI proceeded that on 09/04/2021, the plaintiff arrived together with the broker and police, and they gave DWI a document to sign so that he leaves the farm which is against the law. Dwl told the court that he then 1.5 went to the District Land and Housing Tribunal to complain, and produced a letter with reference No. DLHT/MISC. APP. NO. 16/2020 dated 09/04/20.21 written to him as an exhibit, in which the plaintiff had no objection, and the letter was admitted in evidence and marked as Exhibit D4. Again, the court clerk was permitted by the court to read the letter loudly and translate it. DW1 did not end there, he testified that on the 07/06/2021, the plaintiff came with Court Broker to execute the bordering, and he advised them to change the border and that is in the sketch map .he tendered when he testified, of which the Ward Tribunal denied, him that act. DW1 then prayed to tender an exhibit, in which it is a letter from the Human Right and Good Governance. Institute. And again, the plaintiff had no objection and therefore this court admitted in evidence the said letter and marked it as Exhibit D5. The court clerk as usual read the letter loudly in court. In conclusion, DW1 prayed for this court to order that the original borders created, by the Ward Tribunal to be adhered, as the plaintiff altered the borders intentionally to benefit out of it. That, the border was drawn along the trees Mtomola, Kisuguu (autihill) a tree Msakwe and sisal plants. That, if it pleases this Court, DW1 prayed for the Court to visit the locus in quo. When cross examined by the plaintiff, DW1 said that, before the case at the Ward Tribunal the whole farm belonged by the late Thomas 16 Kumbakumba. That, earlier they were just farming the land, and due to the dispute, which arose, the Ward Tribunal went and put the border, which they respected, that is why he did not object the exhibits tendered by the plaintiff. DW1 added that, he can mention the members of the Ward Tribunal who were involved in constructing the boundaries, and he did mention them as he remembers, who were, Ernest Minango and Peter Chambanenje, some are no longer alive and Pascal Chende a Witness was also present. In which, he said Peter Chambanenje was the secretary and he is the one who drew the first sketch map, and then drew the second sketch map. DW1 also clarified that the marks he has mentioned making the border are in the exhibit he tendered and there was no any objection to it. Answering the questions from the court, DW1 stated that the Ward Tribunal emphasized on the original borders which existed before the dispute started. Pascal Chende was the witness who showed the borders. He added that, at first, he was a resident of Katapulo Village but now he has shifted to Mkowe Village and that the farm is at Katapulo village and the place he has constructed a house is the area he was given by Thomas Kumbakumba. And that, he was close to his father, he gave him over 160 acres. 17 DW2 was PASCALICHENDE, after being sworn he testified that he went to Katapulo village 30 years back and he was welcomed by Thomas Kumbakumba as he was the original resident, and that he had a piece of land within the farm (shamba) belonging to Thomas Kumbakumba until when he bought his own farm. DW2 continued to testify that, there was a time he was Wied by the Ward Tribunal of Mkowe. In which the Clerk was Chambanenje. That,- they asked him to show the borders of Thomas Kumbakumba and the plaintiff. That, after he had showed them, they then drew a sketch map and he signed on the map using Right Thumb Print. • DW2 added that, in the farm there were no permanent trees, that the plaintiff is on the north and Thomas Kumbakumba is on the south. That, he has a farm on the further north where he borders the plaintiff's father, and he does riot know how much acres the plaintiff owns. The plaintiff had no questions to the witness but there were questions from the court, in which DW2 answered that, he doesn't remember the shifted from Thomas Kumbakumba's farm to his own farm. At the time I was leaving there were houses of Edward Kumbakumba. That, at the time he went to testify at the Ward Tribunal, the houses of the Defendant were there at the disputed farm, and that they were near the border, but on the side of Thomas Kumbakumba, and that the 18 Defendant had the same house as seen today, in which the houses are approximately 70 steps from the border. DW2 insisted that it is not true that defendant has trespassed into the land belonging to the plaintiff. DW3 was DESDERY ADRIANO KATILI, he too was sworn before testifying and in so doing, he told this court that he was the chairman of the Ward Tribunal in 2012, that he took over the office while the dispute was pending and that he came to know the dispute when the Tribunal broker went to farm and they were called to attend'at the dispute area, and the broker asked them to go with' documents if any. DW3 proceeded that, they arrived at the dispute area, and the broker went around and saw the borders. ■ He added that, what they observed, the borders were re-created because there was a border which was drawn on the other date the broker came. He proceeded further that as the Ward Tribunal they observed, the broker did not read any document to show, lawful borders -as per decision of the District Land and Housing Tribunal, and they questioned the broker on the lawfulness of what he did, He started to show the border of the defendant, and then showed that of the plaintiff and finally, he drew the border at the scene not as directed by the Court. When cross examined by the plaintiff, DW3 answered that the broker was shown the borders of the defendant and the plaintiff, but then he drew 19 another border. DW3 added that the broker had no any exhibits, and that the border drawn on the date is what was executed. Whereas, the houses of the defendant remain on the north. DW3 also mentioned some of the members of the Ward tribunal who presided the dispute hearing who were Ernest Minango and Peter Chambanenje. Sy Answering the questions of the court, DW3 stated that they were not shown any order of the Court. That, the houses of the defendant were supposed to remain on the south of the plaintiff's farm, but now they were included and that the proper border was drawn by the Ward Tribunal. DW3 added that, the area which was now engulfed by the plaintiff is big enough DW3 has never,measured, DW3 finished by stating that, he would request that if it pleases this Court to visit the dispute land in order to resolve the dispute for good. The last witness is DW4 known as XAVERY MAZWILE as he was sworn, he testified that he remembers, it was at the end of May, 2012 when he was a member of the Mkowe Ward Tribunal, that, they we were requested by the valuer, known as Wastafa to meet at the disputed farm. That, as they arrived there, he wanted to value the farm, but the exercise of valuation was not completed because the family of Thomas was not satisfied with the border which was shown on the date. 20 That, the valuer and the chairman, Peter Chambanenje started to draw a border at the scene in which it was in contravention of the earlier border by Thomas Kumbakumba and the father of Gilbert Mwananzila. When cross examined by the plaintiff, DW4 stated that there were borders and there was no dispute. That, the plaintiff has a farm which borders the defendant. That, they knew about the earlier boarders because they found a sketch map of the same at the village office. I have gone through courts records and respective submissions by both parties, I now consider the issues framed vis-a-vis the evidence before me. While doing so, this Court is minded to go back to the overused laws, that he who alleges must prove, and in civil litigation, proof is on the balance of probabilities, see East African Road Services Ltd v. J.S. Davis & Co. Ltd. [1965] E.A. 676 and Karangirangi vs Asteria Nyalwambwa, Civil Appeal No. 237 of 2017 (CAT) at pg. 7 & 8. . we think it is pertinent to state the principlegoverning proof of cases in civil suits, The genera! rule is that, he who alleges must prove. ... It is similarly that in civil proceedings, the party with legal burden also bears the evidential burden and the standard in each case is on balance ofprobabilities." The crucial issue to be resolved here is, whether the plaintiff is the owner of the disputed land measuring 162 acres located at Katapulo village and ■21 whether he has managed to prove the plaint on the balance of probabilities. I think the answer to the above question is in the negative. This is because, all the testimonies adduced here in court by the plaintiff did not clarify when and how did the plaintiff acquire the 162 acres of land, instead the plaintiff only narrated how he has been in constant legal battles with the family of Thomas Kumbakumba. The testimony of PW2 attempted to convince this court that the plaintiff acquired the said 162 acres in the year 1987 when the original occupiers abandoned the said land, but when questioned, by the court as to who were the people who abandoned the disputed land, PW2 failed to clarify to the court as he answered that he doesn't know the said people. This is simply because, what he testified it was neither on the plaint nor on the plaintiff's testimony, it is atestimony which had no corroboration even from the person who initiated this suit. The. entire records before me have it that, no one denies that the plaintiff has a farm at Katapulo village, the only problem is that the border has been tempered with in the sense that the plaintiff seems to own even a piece of land that he never possessed before, in which it is the reason he had legal battles with firstly the late Thomas Kumbakumba, and now his son the defendant. 22 On the other hand, the defendant (DW1) and his witnesses insisted to the court that they do recognise that the plaintiff has a farm at Katapulo which boarders Thomas Kumbakumba's farm on the north side, and that he tempered with the boundaries set by the Mkowe Ward Tribunal at first when this dispute arose between the plaintiff and the late Thomas Kumbakumba, in which the defendant's family chose to obey. tiff's Considering the above clarification and the evidence before rhe, ifeis too probable that the 162 acres does not belong'to th^biairitiff;^’s he failed W<;:' ■' r.t, to prove that on the balance of probabilities.'7 Coming to the second issue as raised, again it is answered in the negative ....... ’ - ■ ’ "s that the defendant is not a trespasser, since as I clarified above, on the balance of probabilities the plaintiff has failed to prove his ownership of the land in question. Nevertheless, I would like to highlight Exhibit DI which was tendered by the defendant as he testified that a similar case like this at hand was initiated against him by the plaintiff in which it was criminal in nature. The case was filed at the Sumbawanga Urban Primary Court in Criminal Case No. 24 of 2013, whereas the offence was Criminal Trespass contrary to Section 299 of the Penal Code Cap 16 R. E. 2002. In this case, the defendant was acquitted, after the trial court visited the locus in quo and found out that the borders set by the Ward Tribunal were tempered with. The plaintiff then unsuccessfully appealed to the District 23 Court (Criminal Appeal No. 02 of 2013) where the decision of the Primary Court was upheld. Being aggrieved, the plaintiff appealed to this court (PC Criminal Appeal No. 03 of 2014) and the decision of both lower courts were upheld. Now the plaintiff has opted to file this land case with similar cause of action which is trespass. To make it even worse for the plaintiff, all the documents he tendered in evidence as exhibits were not against the defendant herein save for Exhibit P8 which concerned bill of costs emanating from a Misc. Application No. 48 of 2013 which did not prescribe which court is from and also it did not concern the land in question. That is why I hold that the defendant is not a trespasser to the land in question. Last but not least, what remedies are the parties entitled to. Substances of this judgment are enough testimony to that the Plaintiff deserves nothing among the entire reliefs as he miserably failed to prove the case to the standard required in Civil Litigations that is on the balance of probabilities. I do however order the following remedies, that; i. The plaintiff as well as the defendant are to obey arid respect the boundaries which were set by the Mkowe Ward Tribunal when the dispute firstly arose between the plaintiff herein and the late Thomas Kumbakumba. 24 ii. Costs of this suit are to be borne by the plaintiff. Consequently, this suit is dismissed. It is so ordered. Dated and delivered at Sumbawanga this 13th day of February, 2024. 25