Doctor Lushagu

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (MOROGORO SUB-REGISTRY) AT MOROGORO LAND APPEAL NO. 17949 OF 2024 (Originating from Land Application No. 07 of 2023 before the District Land and Housing Tribunal for Ulanga at Mahenge, before Hon. R.W. Mmbando-Chairman) DOCTOR LUSHAGU NGUNDA APPELLANT VERSUS DAMUKA MAULIDI KAMEFUKA 1®^ RESPONDENT FILYO EDWADI MIDODI 2^° RESPONDENT Date of last order: 20/11/2024 Date of Judgment: 05/12/2024 JUDGEMENT MAGOIGA,J. The appellant, DOCTOR LUSHAGU NGUNDA aggrieved with the Decision of the District Land and , Housing Tribunal for Ulanga at Mahenge (the trial Tribunal) in Land Application No. 07 of 2023 delivered on 28^^ June, 2024 now appeals to this court armed with three grounds of appeal formulated as follows: - 1. That, the Honourable District Land and Housing Tribunal erred in law and facts for failure to evaluate the evidence tendered by the Page 1 of 10 appellant at the trial tribunal to make its findings and draw its conciusion that the evidence of the appeliant was heavier than that of the respondent. 2. That, the Honourable District Land and Housing Tribunal erred in law and facts to take into account that, the respondents failed to call material witness to testify in his favor and this made a wrong conciusion about the ownership of the suit premises. 3. That, the Honourable District Land and Housing Tribunal erred in law by its faiiure to critically analyze, assess, and evaluate the evidence brought before it and henceforth came up with a wrong decision rendering miscarriage of justice to the appeiiant. On the strength of the above grounds of appeai, the appeiiant prayed that this appeal be allowed, the judgement and decree of the tribunal be quashed, and set aside and his prayers as prayed in the trial Tribunal be granted. The background to this appeal is as foiiows. The appellant alleged that in 2012 applied and was granted land measuring 150 acres for him and famiiy use but the respondents have encroached a totai of 9 acres out of 150 granted asserting ownership of the same. At the District Land and Page 2 of 10 Housing Tribunal for Ulanga at Mahenge,the appellant sued the respondents herein above for unlawful trespass to the disputed land vide Land Application No. 07 of 2023. After hearing the parties on merits, the trial Tribunal decided in favor of the respondents, triggering the instant appeal on the grounds as stated above. When this appeal was called on for hearing, the appellant appeared in person and was unrepresented. On the other hand, the respondents were represented by Mr. Michael Michale Chami, learned advocate. Both were ready for hearing. Arguing the appeal generally, the appellant argued that the first respondent in his defence averred that he was given the disputed land by the village authority, but no such document was tendered in evidence to prove that allegation. The appellant pointed out that when defending orally in the trial Tribunal, the first respondent, changed the story and said he got the land by clearing the bush. The appellant stated that these two versions of the story were not considered at all by the trial chairman. The appellant stated further that the first respondent never brought any neighbor who could support his story at all while he brought a witness who did not know the disputed land. Page 3 of 10 The appellant further pointed out that first respondent testified contrary to his pleading by stating that he used to lend the disputed land from the village leadership, but no such evidence was brought or evidence that he was officiaily given in 2017 by the viilage. The appellant stated that the only evidence brought by the first respondent was the receipt dated 2022, which shows that the same was issued after almost 5 years, and he never called any witnesses to support the said document. The appellant argued that on his part he had three witnesses: one was Nuba Samwei Burugu, who admitted that they are neighbors in the east; the second was Nkila Martin Ndonge, who admitted they are bordered on the south; the third was John Mahela, who was a member of the village council who was among the people who handed over the disputed land to him. The appellant tendered the village government meeting, and there were no minutes of the viliage assembly, though the meeting was called, and he participated, whereby he was accepted. He argued further that he also tendered the letter of the VEO exhibit PE2 dated on 09^^ day of February 2021, which was proving that the disputed iand is his. The appeilant argued that if the triai tribunal had considered and evaluated the evidence properly, it would have reached a fair and just Page 4 of 10 decision by declaring him the owner of the disputed land. He stated that clearly, he was claiming 9 acres, and the trial chairman did not consider that at all; hence he prayed this appeal be allowed with costs and be declared the owner of the disputed land. In response, Mr. Chami, learned advocate for the respondent, argued that in section 110 of The Evidence Act,[Cap. 6 R.E 2022] the appellant had a duty to prove the case. He stated that the trial chairman was right to dismiss the application because the issues raised were not proved at all. The advocate argued that the reasons are any: in paragraph 3 of the appellant's application, it stated the land in dispute was 150 acres, but the trespassed land was 9 acres, but he did not show how much was trespassed, and no boundaries were shown. Mr. Chami argued that the appellant's evidence stated he was given 250 acres but was not supported by any evidence. The advocate further stated that the evidence of 250 acres was new facts that the appellant raised at the detriment of the respondents, and the contents of exhibit PE2 were also new, taking the respondents by surprise, so they objected to its admission. Page 5 of 10.. Mr. Chami argued that PW2 Nkila for the appellant did not testify anything to do with the disputed area, and PW3 did not know the size of the disputed land. The advocate, thus, stated that the evidence of DWl said he had 30 acres, which he cieared the bush, and DW3 corroborated the evidence of DWl that he cieared the land in 2010. The advocate argued that on the second respondent, his evidence was corroborated by evidence of DW4, so the appellant had a duty to prove his claims, and failure to do so meant his case was not proved at all. Mr. Chami prayed this appeal be dismissed with costs. In rejoinder, the appellant argued that the advocate for the respondents admitted that the people who came to testify did not know the dispute. He said that in his defence he mentioned his neighbours, but the respondent brought people who were not neighbours; hence he reiterated this appeal to be allowed. This marked the end of the hearing of this appeal. My noble task now is to determine the merits or otherwise after hearing the rivaling parties' submissions. Much as nothing was specificaiiy argued on each ground raised Page 6 of 10 and replied, I will equally jointly consider this appeal wholesome without going on specific grounds raised. However, before going Into that, I have noted that there are some facts not In dispute between parties. These are: one, no dispute that the appellant Instituted Land Application No. 07 of 2023 against the abovenamed respondents claiming a land comprising of 9 acres subject of this dispute; two, there was no dispute that the said land application was decided In favour of the respondents. Having gone through the entire trial Tribunal pleadings, proceedings and exhibits tendered and the trial Tribunal judgement record, I managed to observe that the only Issue for determination Is whether the 9 acres of land In dispute belong to the appellant or not. I have carefully considered the competing arguments and read the trial Tribunals' record, but with due respect, I found the record with strong and enough evidence that the disputed 9 acres belong to the appellant and not the respondents. I will explain; one, the appellant tendered exhibit PEl which shows that the village discussed his application to become a villager and asked for 250 acres of land for agriculture where the meeting accepted him, and he was able to pay TShs.300,000/= for the village fund. The oral Page 7 of 10 testimony of the appellant that he was given 150 acres and later the resppndents invaded 9 acres in total in that the 1^*^ respondent invaded 5 acres and the 2"^ respondent 4 acres was not challenged at all. two,exhibit PE2 clearly shows that the respondents were trespassers of the appellant's land when the village government wrote to the appellant that he should let the respondents harvest their crops they planted and then leave his land. The trial Tribunal holding that it was not part of the pleadings while same was received in evidence without any serious objection. Exhibit PE2 was relevant to the dispute in issue and was properly admitted but wrongly not considered by the trial Tribunal. Or in other words, technically given no weight, three, the respondents'evidence is contradictory and inconsistency in that, the only evidence was a receipt(Dl)for the payment issued in 2022 after the appellant was already the owner of the disputed land. More so the j-- ' one who signed the receipt is unknown. Four, the testimonies of the respondents who alleged to be granted the disputed land by the village council failed to prove that grant by failure to tender any document supporting such allegations. Five, the contradiction, if any, was mainly on the respondents who were changing their stories from being given the land Page 8 of 10 by village authority without any supporting documents and that they cieared the bush. For the foregoing reasons above, generally, I find this appeai merited, and I aliow the same with costs in this court and in the triai Tribunai beiow. Consequently, I quash the decision entered by the District Land and Housing Tribunai of Ulanga in Land Application No. 07 of 2023 and declaring that the appeliant is iawfui owner of the disputed iand and the respondents are trespassers who shouid vacate and ieave the same to the enjoyment of the appellant. It is so ordered. Dated at Morogoro this 05^*^ day of December 2024 COUR C:>' > S. M. AGOIGA X JUDGE 05/12/2024 COURT: Judgement delivered in the presence of the appeiiant and in the absence of the respondents and their advocate who was aware of the judgement date at Morogoro. Page 9 of 10 Op CO rf. 7^ 0: LLl X ■vV > S. M. MAGOIGA V m SS-t JUDGE 05/12/2024 pla COURT: Right of appeal fully exDiain Op c -t ::: t-9 LU 'v-v > S. M. MAGO 5A JUDGE 05/12/2024 Page 10 of 10