20141023 TZHC Mwanza

- 'i' 'IN THE HIGH c;:ouRT OF TANZANIA ~ l\f ~ ATMWANZA .~ LAND APPEAL NUMBER 31 OF 2014 (Arising from Lan~ Appeal Number 82 of 2012 of the District Land and Housing Tribunal for Mara at Musoma. _Original Land Application Number \ 02 of 2013 of. the Ward Tribunal ' . of lgundµ) : DAUDI BUNGURWA ____________________ :.., ___________ APP\ELLANT {for the AIC Church Bulendabufwe) VERSUS . 1. EDWARD KJUIGO ----------------~------------1 st RE~PONDENT · . nd 2. MANYEGE MANYASI --------------------------2 RijSPONDENT . d ' 3. MAJURA MAJIGO ----------------------------3r RIE~PONDENT JUDGMENT 16/09 &23/10/2014 S. S. MWANGESI J.: The appellant herein has lodged three grounds_ of appeql to challenge the decision of the District Land and Housing Tribunal for Mara sitting at Musoma, which did hold that, the respondents are· legally occupying the 1 f' I .I • l I - i disputed plot of land. His grounds of are worded in the following format, ' i . that is; 1. The Chairman erred in law by holding that, the respondents have been living on the disputed plot of land and using the same since the year 1974, therefore owners of the_ land in dispute, while-th_e dispute was not over the land occupied by the respondents since 1974 rather on the land in which, the respondents have trespassed since the year 2013, the land which belongs to the AIC Church of Bulandabutwe. 2. The Chairman misdirected himself by his failure to appreciate the fact that, the piece of land in dispute is not the land occupied by the respondents since the year 1974, rather the land in which the respondents have trespassed since 2013. 3. The Chairman erred by not considering the grounds of appeal as indicated in the appellant's memorandum of appeal. On the foregoing reasons, this Court has been implored to quash and set aside the decision of the District Land ad Housing Tribunal for Mara and declare that, the land in dispute belongs to the AIC Church of Bulandabutwe. In their joint response to the grounds of appeal which have been lodged by the, appellant, the respondents have raised a preliminary objection on a point of law, which -however, is gross· misdirection as nothing can be comprehended from those grounds. It would appear they have ·been misguided by some bush lawyers. As such, the Court has proceeded to consider the merits of the appeal as if there have been no preliminary as alleged by the respondents. 2 ·; ' Th~ background of the dispute between the two sides as could be ' C ' ' u r• discerned from the proceeding of the Ward Tribunal fs that, the appellant -~ did lodge a complaint at the Tribunal contending that, the respondents had encroached onto the plot of land belonging to the church and illegally continued to occupy. The members of the Ward Tribunal being led by their Chafrman upon having heard evidence from both sides as well as visiting the locus in quo, was · satisfied on balance of probabilities that, the . . . respondents have been in occupation of the disputed plots of land for a very long time and that, the cl~ims by the appellant was unfounded. The claims by the appellant were thus dismissed for want of merit. The appellant felt aggrieved by the decision of the Ward Tribunal and preferred an appeal to the District Land and Housing Tribunal for Mara sitting at Musoma. At the same, he was again not successful as the first . appellate Tribunal was in concurrence with the finding of the trial Tribunal that, .the evidence received from the respondents did outweigh that received from the appellant. Still believing that, there is no triumph of justice, the appellant has preferred this appeal. When the appeal was called for hearing, the appellant was nowhere to prosecute his·appeal as he has defaulted appearance even though duly. served. On their part the . respondents who did appear in person, . did maintain their document which they had lodged in Court, which as earlier . · stated, the preliminary objection, which they had raised had no any bearing. The foregoing situation notwithstanding, this Court did go through the grounds of appeal which have lodged by the appellant as well as the proceedings of the two lower Tribunals. 3 ·• 1 .. ,., .. It is the finding of this Court that, the records of the Ward Tribunal G ~ are very clear and articulate to the effect that, the claims by the appellant ,. were unfounded. This fact is substantiated_ by the appellant himself in his first ground of appeal to this Court, where he has conceded to the fact that, the respondents have bee.n in occupation of the disputed plot of land since the year 1974. He has however added another factor, which did not feature at the. lower Tribunals to the effect that, his dispute with the respondents was in respect of the plots of land, which they did encroach in the year 2013. He has however forgotten his testimony at the Ward Tribunal, where he did argue that, he noticed the intrusion in the year 2008. So what the appellant has tried to insert in his grounds of appeal is a new thing which was never canvassed at the Ward Tribunal and therefore, a. mere an afterthought which cannot be accommodated at this point in time. Without any ado, I would thus dismiss the appeal by the appellant on the bases that, it is without any founded bases. The respondents will have their costs for this appeal. Order accordingly. -~s. s. JUDGE 4