JUDGMENT Dominicus Mselewa vs Salum Milanzi

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB - REGISTRY AT SONGEA LAND APPEAL NO. 19434 OF 2024 (Originating from the decision of the District Land and Housing Tribunal for Songea at Songea in Land Application No. 01 of 2023) DOMINICUS JEREMIAS MSELEWA…..…….....................………… APPELLANT VERSUS SALUM ALLY MILANZI.………....………………………………..………..RESPONDENT JUDGMENT 7th & 28th November, 2024 KAWISHE, J.: The appellant herein above approached the District Land and Housing Tribunal for Songea at Songea (the trial Tribunal) in Land Application No. 01 of 2023 among other reliefs he prayed to the trial Tribunal to declare him the lawful owner of a disputed land measuring 37.06 acres located at Mabatini Hamlet, Mlilayoyo Village in Hanga Ward and within Namtumbo District, Ruvuma Region. Dissatisfied with the decision of the trial Tribunal he preferred this appeal with seven grounds of appeal reproduced hereunder: 1 1. That, the trial tribunal erred in law when it decreed against the appellant without evidence to support the same. 2. That, the trial tribunal erred in law and facts for when it held that the appellant has testified false evidence without any justification thereof. 3. That, the trial tribunal erred in law and facts when it collected evidence during locus in quo contrary to the law and went on to use the same in deciding the case the act which occasion to miscarriage of justice. 4. That, the trial tribunal erred in law when it conducted another hearing and collected evidence at the locus in quo contrary to the law. 5. That, the trial tribunal erred in law and fact when it disregarded the evidence of DW2 without any justification. 6. That the trial Tribunal erred in law when it held that the land in dispute is in Mageuzi Village without evidence to prove the same. 7. That the trial Tribunal erred in law and in fact when it held that the land in dispute belongs to the respondent without any proof thereof. This appeal was resisted by the respondent. Prior to embarking on the details of this appeal, I find it compelling to state the brief facts leading to this appeal. The facts gathered from the records available states as follows: Before the trial Tribunal the appellant sued the respondent for invading 5 acres within the 37.06 acres which he owns lawfully. He added that in 2009 he was granted with customary ownership for the 37.06 acres of the disputed land. That in 2020 the respondent invaded 5 acres claiming to be his land and rented to some people. To prove his claim, he called one witness Rajabu Issa Ajida (PW2) 2 who was once a Village Executive Officer in 2009. He testified that, in 2009 the village allocated land and granted ownership to villagers. In his defence, the respondent denied to have invaded the appellant’s land. He claimed that he owns 7 acres inherited from his father. That his land is in Kilawalawa Hamlet, Mageuzi Village. He called two other witnesses to support his defence. DW2, Adelhema Tembo testified that the disputed land belongs to the respondent who got it from his father. The same was testified by DW3 Athuman Iddi. At the conclusion, the trial Tribunal decided the application in favour of the respondent. Irritated with the decision he has approached this court seeking to impugn the trial Tribunal’s decision. Upon parties’ consensus this appeal was disposed of by way of written submission. The parties complied with submission schedule. The appellant enjoyed the services of Mr. Eliseus Ndunguru, learned counsel whereas the respondent had no legal representation, he fended for himself. Amplifying on the first ground of appeal, the appellant’s learned counsel faulted the trial Tribunal that it erred in law when it decreed against the appellant without evidence to support the same. He added 3 that, the appellant prayed to be declared the lawful owner of the disputed land and adduced customary right of occupancy with reference No. 16NTB2299 recorded as exhibit DJ1. That, his testimony was corroborated by the evidence of PW2 who testified to the effect that, the suit land belonged to the appellant and he was the one who registered exhibit DJ2. The learned counsel claimed that, the appellant managed to prove his ownership of the disputed land. He averred that, the law demands that the person who tenders a title deed to prove ownership of the land in dispute shall be the lawful owner unless it is proved that the title deed was obtained unlawfully. Submitting on the second and third grounds of appeal, the appellant’s learned counsel claimed that, the trial Tribunal erred in law when it collected evidence during the locus in quo contrary to the law. That the same was used in deciding the case hence occasioning miscarriage of justice to the appellant by conducting another hearing during the time of locus in quo. That, at locus in quo the trial Tribunal summoned a land surveyor to record coordinates and went on to compare with the information contained in DJ1. The information was used to adjudge against the appellant. He contended that, the trial Tribunal was wrong to collect 4 evidence and summon new witness instead of verifying the evidence which had been put forward by the parties and their witnesses. That, the witness was not put under oath, thus, the Tribunal collected its own evidence contrary to the law. He prayed that, such evidence be expunged from the record. The appellant’s learned counsel expounding the on fourth ground of appeal stated that, the trial Tribunal erred in law and in fact when it disregarded the evidence of DW2 without any justification. That every witness deserves credence, to the contrary reasons must be assigned to the discredit of witness. He alleged that, PW2 testified that, he was the Village Executive Officer of Mlilayoyo Village where the disputed land is located and he registered exhibit DJ1 which shows that the appellant is a lawful owner of the disputed land. He added that, the trial Tribunal did not assign any reason for disbelieving him. He alleged that it is serious misdirection on the part of the trial Tribunal. On the fifth ground of appeal, the learned counsel submitted that, the trial Tribunal erred in law when it held that the disputed land is in Mageuzi Village without any evidence to prove the same. Mr. Ndunguru claimed that, the testimony of PW2 the custodian of the village land and 5 the one who knows the village boundaries was not considered. That, PW2 was a reliable authority before the trial Tribunal. He avowed that, there was no evidence to the effect that exhibit DJ1 is not a genuine document. He blamed the trial Tribunal for its decision as there was no evidence to justify that the land in dispute is not located in Mlilayoyo Village. On the sixth ground of appeal, the learned counsel averred that, the trial Tribunal erred in law and in fact when it held that, the disputed land belongs to the respondent without any proof. That, the respondent did not prove that the land belongs to him rather, DW1 testified that the land belonged to his father who died many years ago. That, he is using the disputed land with his relatives. He insisted that, no evidence adduced to show that the respondent was given the suit land by any legally appointed administrator of estates of the deceased, thus the land belonged to their deceased father. He prayed to the court to allow this appeal with costs. Although, the appellant lodged seven grounds of appeal, the appellant’s learned counsel argued six grounds of appeal whereby the seventh ground was succumbed in the sixth ground. That being the case, I will not deal with them separately, rather will determine them collectively as argued by the appellant’s learned counsel. 6 In reply, the respondent argued that, the trial chairman rightly held that the appellant’s evidence did not reflect what he has pleaded in his application specifically on how, when and from whom he acquired the disputed land contrary to the respondent who successfully pleaded and testified that he owns the disputed land he got the same from his late father one Ally Omari Milanzi since 1999. He faulted the appellant’s counsel assertion that, since the appellant has a customary right of occupancy then he was supposed to be declared the lawful owner, stating that it is baseless. That, the trial chairman clearly explained that the area which is in the customary right of occupancy is not exactly the area to which the disputed land is found basing on the variation on location and coordinates. Replying to the second and third grounds of appeal, the respondent averred that, the procedures at the locus in quo were properly adhered to by the trial chairman. That, the appellant’s lamentation that the land surveyor was a new witness lacks merit. That, the land surveyor was not a witness rather was a professional who was invited to assist the tribunal in taking measurements and not to testify on any aspect. To fortify his stance, he cited the case of Kimonidimitri Mantheakis vs. Ally Azim Dewji and 7 Others, Civil Appeal No. 4/2018, CAT. He contended that, 7 even if the evidence collected at locus in quo will be expunged yet, the available evidence does not suffice to declare the appellant to be a lawful owner of the disputed land. That, the appellant failed to put clear as to the exact location in terms of the village of the area in dispute. That, the appellant stated that, the disputed land is located in Mlilayoyo Village, while the same is located in Mageuzi Village and for that reason the trial chairman was right to decide in favour of the respondent. Disputing the fourth ground of appeal, he argued that the evidence of PW2(SM2) was properly evaluated. That, in the printed judgment appealed against, the trial chairman has observed that, the appellant with his witness (SM2/PW2) lied by stating that the area in dispute is located in Mlilayoyo Village, while the same is located in Mageuzi Village. Reacting on the fifth ground of appeal, the respondent contended that, there were sufficient reasons and evidence which pointed out that, the area in dispute is located in Mageuzi Village and not Mlilayoyo Village. That it was proved by the tribunal’s chairman visit to the locus in quo with an assistance from the land surveyor. That as a result, it was observed that the land in dispute is located in Mageuzi Village and not in Mlilayoyo Village. 8 On the sixth ground of appeal the respondent opposed the appellant’s learned counsel contention by stating that, the respondent successfully managed to plead and testify as to how he got ownership of he disputed land, when and from whom. He added that his evidence was supported by DW2 and DW3. He contended that, DW2 testified that she is bordered by the respondent since 1959 upon which the area was initially owned by the respondent’s late father. He concluded that, the appellant’s evidence did not reflect what he pleaded in his application. That, he failed to put clear on the location of the disputed land. In his view, that failure on the part of the appellant sufficed to conclude that the appellant did not prove his case to the required standard. The appellant opted not make a rejoinder as the same was not filed as ordered. Having gone through the parties’ submissions, grounds of appeal and the original records, it is an ample time for this court to make determination of this appeal. In determining this appeal, one question needs to be addressed, whether the appeal has merits. Starting with the first ground appeal, the appellant’s learned advocate criticized the trial tribunal for deciding the matter in favour of the 9 respondent without any evidence being adduced to prove ownership. It is the learned counsel’s view that, the appellant has a customary right of occupancy, hence the law recognizes him as the lawful owner. That exhibits DJ1 and DJ2 were tendered to prove ownership. The respondent disputed the submission on the ground that, the pleadings did not reflect customary right of occupancy. That he managed to prove how and when he got the disputed land. Hence the tribunal is justified in its decision by declaring the respondent the lawful owner of the disputed land. Given the hot debate between the parties, I decided to revisit the trial Tribunal’s proceedings and the judgment. From the records available, I realized that, the appellant claimed that the disputed land is located in Mlilayoyo Village while the respondent averred that the disputed land is located in Mageuzi Village. It is a trite law that in land disputes, the party with right of occupancy is presumed to be the lawful owner unless proved otherwise. This was the stance of the appellant’s learned counsel. I agree with him that the party with the right of occupancy is presumed to be the lawful owner but, I am of the considered view that, the right of occupancy must marry with the particulars of disputed land. In the appeal at hand, the trial Tribunal had to visit the locus in quo to ascertain the location of 10 the disputed land. The records show that, the coordinates on exhibit DJ1, the customary right of occupancy differ from the actual coordinates on the ground. Also, the information gathered at the locus in quo show that the disputed land is situated in Mageuzi Village. That being the case, I am not inclined to the appellant’s learned counsel submission that, the appellant should have been declared the lawful owner as he has the right of occupancy issued by the village. I am convinced that, the appellant failed to meet the requirements of the provisions of section 110 of the Evidence Act, (Cap 6 R.E 2022). The section states: “Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” From the position of the law cited herein above, the appellant was supposed to prove that the disputed land is located in Mlilayoyo Village and the coordinates should have matched to the ones on the Customary Right of Occupancy (DJ1). To the contrary, he failed to prove his allegation. It is a settled law that, a burden of proof is upon a person who asserts on the existence of certain facts. This principle was celebrated by the Court of Appeal in the case of Barelia Karangirangi vs. Asteria Nyalambwa 11 (Civil Appeal No. 237 of 2015) [2019] TZCA 51 (TanzLII), where the Court held that: "At this juncture, we think it is pertinent to state the principle governing proof of case in civil suits. The general rule is that he who alleges must prove." From the excerpt quoted, as I have stated herein above, the appellant did not prove that the disputed land is in Mlilayoyo Village and the Customary Right of Occupancy was issued for the same. In addition to the principle on burden of proof there is another settled principle based on the standard of proof. It is provided under section 3(2)(b) of the Evidence Act (supra) that, the prove of suits in civil cases is on the balance of probabilities. The principle was also deliberated by the Court of Appeal in Barelia Karangirangi vs. Asteria Nyalwamba (supra). It held that: "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 of probabilities." The same stance was stressed by the Court of Appeal in the case of Godfrey Sayi vs. Anna Siame as Legal Representative of the late Mary Mndolwa, Civil Appeal No. 114 of 2012 (unreported). This appeal is a land appeal which falls among the civil suits and its determination guided by the two principles stated above. Thus, in the 12 determination of the appeal at hand this court is guided by the above principles. As a result, the appellant did not prove his suit, to the required standard, hence the first ground of appeal is dismissed. On the second and third grounds of appeal, the appellant’s learned counsel claimed that the trial Tribunal erred in law when it collected evidence during the locus in quo contrary to the law and went to use the same in deciding the case hence occasioning miscarriage of justice to the appellant by conducting another hearing during the time of locus in quo. That at locus in quo the trial Tribunal summoned a land surveyor to record coordinates and went on to compare with the information contained in exhibit DJ1. In reply, the respondent averred that, the procedures at the locus in quo were properly adhered to by the trial chairman. That, the appellant’s lamentation that the land surveyor was a new witness lacks merit. He insisted that, the land surveyor was not a witness rather was a professional who was invited to assist the tribunal in taking measurements and not to testify on any aspect. I have perused the trial Tribunal’s proceedings of 7th May, 2024 at page 19, there is nowhere it is shown that a new witness was summoned. The learned counsel lamented that the trial Tribunal summoned a witness 13 and gathered new evidence without administering an oath. That, the same was used to crucify his client. This allegation prompted me to peruse the original file and found a letter directed to the Ministry of Lands Housing and Urban Development, requesting for a surveyor to show the coordinates as per the customary right of occupancy No. 16NTB 2299, dated 2nd January, 2024. The letter was authored by the trial Tribunal’s Chairman. From the wording of the letter, it requested for a land officer to show the coordinates on the disputed land. He was not summoned as a witness as claimed by the appellant’s learned counsel. Be it as it may be, the disputed land is not in the village which the appellant claimed and insisted to be. In that, even if the land surveyor was not called to show the coordinates still the appellant could not prove his case depending on the evidence he adduced. However, it is a trite law that visiting locus in quo is not mandatory. This was so stated by the Court of Appeal in the case of Kimonidimitri Mantheakis vs. Ally Azim Dewji & Others, (Civil Appeal No. 4 of 2018) [2021] TZCA 663 (TanzLII). The Court stated that: “Whereas the visit of the locus in quo is not mandatory, it is trite law that, it is done only in exceptional circumstances as by doing so a court may unconsciously take a role of witness rather than adjudicator. In this regard, where the court deems it warranted, then it is bound to carry it out properly so as to 14 establish whether the evidence in respect of the property is in tandem with what pertains physically on the ground because the visit is not for the purposes of filling gaps in evidence. Therefore, where it is necessary or appropriate to visit a locus in quo, the court should attend with the parties and their advocates, if any, and with such witnesses as may have to testify in that particular matter.” [Emphasis added]. As observed in the passage quoted, the trial tribunal visited the locus in quo to ascertain the location of the disputed land. The trial Tribunal was under special circumstances. There was a confrontation on the location of the disputed land. Whether in Mlilayoyo Village or Mageuzi Village and second, to ascertain the particulars of the disputed land on the ground if are in tandem with the information on the customary right of occupancy. See the case of Nizar M. H. Ladak vs Gulamalx Fazal Janmohamed [1980] TLR 29. The essence of visiting locus in quo is to ascertain the evidence given by the parties. Thus, the surveyor from the Ministry, was for professional or expertise exercise and not evidential purposes. His main task was to show the coordinates of the disputed land at the same time when the parties showed their boundaries. In my view, coordinates are professionally identified. The records show that, the parties identified their boundaries, and the surveyor professionally read the coordinate for the point showed by each witness. By so doing, is not testifying rather, giving 15 expertise assistance to the tribunal to dispense justice to each party. Consequently, the claim that he gave new evidence is speculative. The third and fourth grounds are meritless and are dismissed. On the fifth ground of appeal the learned counsel claimed that, the trial Tribunal erred in law when it held that the disputed land is in Mageuzi Village without any evidence to prove the same. He added that, no reason was adduced to prove that exhibit DJ1 is not a genuine document. In reply, the respondent stated that dispute land is located in Mageuzi Village and not in Mlilayoyo Village. He added that, the visit of locus in quo proved that with the assistance of the land surveyor. I think the issue of exhibit DJ1 being a genuine document or not should not detain me much. As I have deliberated earlier, the document particulars do not match with the particulars on the disputed land. The document shows that the disputed land is in Mlilayoyo Village while the actual location of the disputed land is in Mageuzi Village. In my view, genuineness of the document goes symmetrically with the exact piece of land. Therefore, the document being genuine is one step but matching the exact piece of land is another step altogether. The trial chairman visited the locus in quo only to find the disputed land is located in Mageuzi Village, since the DJ1 shows that it was 16 issued for piece of land located in Mlilayoyo Village, it cannot be taken as a document showing ownership of a piece of land in Mageuzi Village. This was proved by naked eyes of the chairman and the parties. It needed no expertise to ascertain the village, only the coordinates for the boundaries needed expert and not otherwise. Subsequently, the ground is unmeritorious, hence dismissed. On sixth ground of appeal, the learned counsel averred that, the trial Tribunal erred in law and in fact when it held that the disputed land belongs to the respondent without any proof. Contesting the allegation, the respondent stated that the evidence which has been supported by DW2 and DW3 proved the same. That DW2 testified that she has been bordered with the respondent since 1959 upon which the area was initially owned by the respondent’s late father. He concluded that, the appellant’s evidence did not reflect what he pleaded in his application. Upon perusal of the trial Tribunal’s proceedings, I found that, in his submission in chief the appellant before the trial Tribunal testified that, he owns 37.06 acres, in North neighbouring with valley/canyon, in the South Naikula River, in the East, Joseph G. Mselewa, in the West Joseph L. Nchimbi. That in 2020 the respondent invaded his land. From this submission, it was expected that, 17 the appellant would have informed the trial Tribunal that the disputed land is bordered in all corners or some of them by his main land. Also, he should have told the trial Tribunal which part of his land the respondent invaded. Leave that alone, he did not call his neighbours to testify for him. He instead called a former village executive officer to testify that he was the one who signed the customary right of occupancy. Why he did not summon his neighbours in the disputed land? It is a question which leaves a lot to be desired. He alleged that, the disputed land belonged to him, he should have made efforts to prove the same by calling the neighbours to support his claim and give information which matches the details on the customary right of occupancy. This is in accordance with the provisions of section 110 of the Evidence Act, (supra) and the deliberation in case of Barelia Karangirangi vs. Asteria Nyalwamba (supra). In view of the discussion made herein above, the sixth ground is baseless and is dismissed. As a result, the issue raised whether this appeal has merits, is answered in the negative. From the foregoing, the appeal lacks merit and it is hereby dismissed in its entirety. Subsequently, the judgment and the orders of the trial 18 Tribunal in Land Application No. 01 of 2023 are upheld and confirmed. The appellant to bear the costs of this appeal. It is so ordered. DATED and DELIVERED at SONGEA this 28th day of November, 2024. E. L. KAWISHE JUDGE COURT: Judgment delivered in the presence of Mr. Hajj Ramadhan learned counsel holding brief for Mr. Eliseus Ndunguru, appellant’s learned counsel and in the presence of the appellant and in the presence of the respondent in person. Right of appeal explained. E. L. KAWISHE JUDGE 28/10/2024 19