DANIEL YUDA GWAYDI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA

AT BABATI LAND APPEAL NO. 8014 OF 2024 (Originating from Land Application No. 56 of 2023, District Land and Housing Tribunal for Mbulu at Dongobesh) DANIEL YUDA GWAYDI................................................................ APPELLANT

VERSUS MAYKO YUDA GWAYDI........................................................... RESPONDENT

JUDGMENT 11th July & 25th September, 2024 D. C. KAMUZORA, J. Parties herein are blood brothers and they have a dispute over un­ surveyed piece of land each claiming to have been given the land by their late father. The appellant sued the respondent before the District Land and Housing Tribunal for Mbulu at Dongobesh (hereinafter referred to as the trial tribunal), for recovery of a piece of land situated Genda village, Dinam ward in Mbulu district (hereinafter referred to as the suit land). According to the appellant, he acquired the suit land in 2009 as a gift from his father after getting married. The appellant claimed that his father acquired the suit land from his father (the appellant's grandfather) in Page 1 of 8 1972. That, the dispute arose in 2017 after the respondent trespassed into the suit land and started farming and animal keeping. The appellant claimed that the matter was referred to the clan elders and neighbors for reconciliation and the suit land was returned to the appellant but the respondent trespassed into the suit land again in 2022. The appellant referred the matter for mediation before Dinam ward tribunal but no settlement was reached hence, he filed a suit before the trial tribunal. The respondent disputed the appellant's allegation for trespass and claimed to be the owner of the suit land. He pleaded that the suit land is 81 paces width on the east

and 67 paces on the west contrary to the measurements described by the appellant. That, he was given the suit land by his father in 1995 and it is the appellant who trespassed therein in 2022. After hearing the parties' evidence, the trial tribunal dismissed the appellant's claim and proceeded to declare the respondent as the lawful owner of the suit land. The appellant was displeased with the trial tribunal's decision and preferred the instant appeal on four (4) grounds as follows; 1. That, the trial tribunal erred in law and fact to rely on unfounded, fabricated and forged documents to decide the matter in respondent's favour. Page 2 of 8 2. That, the trial tribunal chairman erred in law and in fact for failure to analyze and evaluate properly the evidence of the appellant.

3. That, the trial tribunal erred in law and fact by delivering a decision in favour of the respondent basing on contradictory evidence.

4. That, the learned chairman of the trial tribunal delivered a decision which has no legal reasoning reaching to unfair decision. When the appeal was called for hearing, the appellant appeared in person unrepresented. The respondent did not enter appearance despite being duly served thus, hearing of the appeal proceeded in the respondent's absence. When invited to argue the grounds of appeal, he submitted briefly and generally that, the trial tribunal based its decision on the forged documents hence arriving to a wrong decision. He argued that, the village executive officer who prepared the documents was not called before the trial tribunal to testify. He faulted the trial tribunal for failure to consider and evaluate his evidence and that of his witnesses and for failure to visit the locus in quo. He also faulted the trial tribunal for declaring the respondent as lawful owner of the suit land while his evidence was contradictory and not proving respondent's ownership to the suit land. He added that, the trial tribunal failed to give reason for the decision hence arriving to unjust decision. Page 3 of 8 Having gone through the appellant's submission, the grounds of appeal and the record, the grounds of appeal raise a common issue on the evaluation of evidence on record. I will therefore assess if there was proper evaluation of evidence by the trial tribunal and in doing so, I

will also re-evaluate the evidence and make finding thereto. The key issue that was before the trial tribunal was, 'who is the lawful owner of the suit land'. In its decision, the trial tribunal found the appellant to have failed to prove his claim for ownership for his evidence and that of his witnesses was full of contradictions. He however found the respondent's evidence heavier than that of the appellant since he tendered the minutes for the family meeting confirming that the respondent was given the suit land. When composing the judgment this court encountered similarities in the facts deponed in another land case to which, the appeal therefrom is also before me. Before the same District Land and Housing Tribunal, one Petro Martin instituted Land Application No. 45 of 2023, against Mayko Yuda (the respondent in this appeal) claiming for the land measuring % acre situated at Genda village, Dinam ward in Mbulu district. He mentioned the borders to the suit land as Masoda Gwaydi on the North, Ngayda Hhape on the south, water stream on the East and Dughagw Hhape on the West. The decision of the trial tribunal was in favour of Page 4 of 8 Mayko Yuda and an appeal therefrom is before this court, Land Appeal No. 8013 of 2024. The current Land Appeal No. 8014 originated from Land Application No. 56 of 2023 to which one Daniel Yuda Gwaydi sued Mayko Yuda Gwaydi for recovery of the

land measuring 107 paces length, 57 paces on the East, 43 paces on the West and 37 paces on the south. The boundaries to the suit land were mentioned as; John Nada on the North, Petro Martine on the south, water stream on the East and Martin Dighang'w on the West. Again, the decision was in favour of Mayko Yuda hence, this appeal. Reading through the parties' pleadings before trial tribunal, in both two cases, Mayko Yuda was the respondent and he emerged a winner but my attention is on the respondent's written statement of defence. In both two cases, he described the suit land as land with the length of 121 paces, the width of 81 paces on the East and 67 paces on West. He also mentioned the same borders of the suit land as; Masoda Gwaydi on the North, Ngaida Hhape on the South, water stream on the East and Dughagw Hhape on the West. Now the question is whether the land claimed by Petro Martine in Land Application No. 45 of 2023 subject to Land Appeal No. 8013 of 2024 is the same land claimed by Daniel Yuda in Land Application No. 56 of 2023 subject to Land Appeal No. 8014 before this court. Page 5 of 8 Although the land was differently described by the claimants before the trial tribunal it was similarly described by the respondent presupposing that the claimant in two different cases were claiming the same land. While determining Land Appel No. 8013 of 2024, this court

found inconsistencies in evidence and concluded that there was no clear description of the suit land therefore, difficult to pass an executable decree. To resolve the inconsistence, it ordered for the visitation for the locus in quo for proper determination of the real matter in controverse which is the location and size of the suit land. I have found similar inconsistencies in the matter at hand. The appellant's evidence differed remarkably with that of SM3 (John Yuda), SM4 (John Nada) and SM5 (Paulo Slaqwara) on the size and boundaries of the suit land. The appellant claimed that the suit land was measuring about 107 paces length and 57 paces width and was bordered with; North- John Nade, south- Petro Martin, east- water stream and west- Martin Dughang. PW3 stated that suit land measures 50 to 110 paces and bordered with Martin Yuda, John Nada Giye Yuda and John Yuda. SM4 also came up with different boundaries compared to that given by the appellant for he stated that the suit land boarders with John Nada- North, south-church, east-water stream and west-Dughang' Happe. SM5 gave different size of the suit land as he stated that suit land measures 106 Page 6 of 8 paces length and 60 paces width. As to SM6 the village chairperson described the size of the suit land as l1/4 acres. On the defence side, there was also contradiction on the size and boundaries of the suit land. The

respondent mentioned the size of suit land as 67 paces, 121 paces length and 81 paces width bordered with Masouda Gwaydi on the North, Ngaida Hhape on the South, water stream on the East and Dughang Hhape on the West. His evidence differed with that of SU3 and SU4 in terms of size and location. Both SU3, SU4 and SU5 claimed that the suit land was one acre and few paces and SU3 further mentioned the borders to the suit land as; Masouda Gwaydi on the North, Martin Yuda after Yuda Gwaydi on the South, water stream on the East and his farm (Martin Daniel) on the West. While the above evidence brings confusion over the description of the suit land, the trial tribunal declared the respondent as lawful owner of the suit land and the judgment contains no description of the suit land to which he was declared the owner. Although the need for visiting the locus in quo was not raised by parties to the case before the trial tribunal and even before this court, I asked myself if the way the suit property was described could make it easy for the decision of the trial tribunal to be executed without any encumbrance. It is a requirement of the law that the suit land must be properly described by parties in their pleadings and Page 7 of 8 in evidence to assist the court or tribunal to pass an executable decree but in the matter at hand, we have contradictory evidence regarding the size and

boundaries of the suit land. Had the trial tribunal chairman thoroughly scrutinized the parties' evidence, he could have realized that, the winning party is likely to face challenges in executing the decree due to contradiction in the size and boundaries of the suit land. In my view, this was an exceptional circumstance under which the trial tribunal could visit the locus in quo to enquire more on facts which could have assisted in determining the matter in controverse and in this case, the size and boundaries or location of the suit land. Basing on the above discussion, I find the appeal meritorious and, I allow it. I therefore remit the case file to the trial tribunal and direct them to visit the locus in quo for purpose of resolving issue of size and boundaries of the suit land and thereafter, compose a new judgement. However, in considering that the matter is remitted to the trial tribunal for compliance with this court's directives, I will not make an order as to costs. DATED at BABATI this 25th Day of September, 2024. Page 8 of 8