eshen m mutarambilwa vs clay apiyo 2021 tzhclandd 821 3 september 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM LAND APPEAL NO. 236 OF 2020 (Appeal from the Judgment and Decree of the District Land and Housing Tribunal for Ilala District by Hon. J. M. Bigambo - Chairman in Application NoMl of 2015 dated 24/10/2017) \\ ESHEN M. MUTARAMBILWA APPELLANT VERSUS CLAY APIYO RESPONDENT measuring 10 aa;es^ocatedsat^sorigola village. According to his testimony the Applicant purchasecTt^e suit^d/from one JOSEPH MANDA on 18th December 2006. He'alleges’ffiatfth'e'Respondent has trespassed into the suit land claiming the same to be, his property. The Respondent alleges the suit land to be his \ \ \ property as he inherited the same from the late Timoth Apiyo. He elaborated further that^thelate Thimoth Apiyo was allocated 60 acres by Msongola Village. He later surrendered 50 acres to the Village Authority and remained with the ten acres. The ten acres were later given to the Respondent as part of his inheritance from the estate of the late Timothy Apiyo. The Trial Tribunal ruled in favour of the Respondent. Dissatisfied by the decision of the Trial Tribunal the Appellant preferred this Appeal on the following grounds; 1 1. That the learned chairman erroneously arrived at a finding that the suit property which Appellant purchased on 18/12/2006 from Joseph Manda belong to Timothy Apiyo contrary to evidence on record; 2. That the learned Tribunal Chairman misconstrued exhibit P.5 as synonymous to exhibit Pl when the latter^had specifically pointed out the former as located in the Southerrbarea to where Exhibit Pl is traceable; 3. The learned Trial Tribunal chairman failed toappreciate answers deriving from defendant's witnesses^during^xross examination whereby DW2 identified Timo^fyl^piyb^remaining 10 acres which Baraka Julius retriewd^pm^PW^ as engulfed in wilderness without crops at allxcontrary to Exhibit Pl whose //’* \\ .x crops had been subject of litigation in>Exhibit P2, Criminal Case No. 1494/2010'at UkongaPrimary Court; 4. The learned^i&un^^hairm^ unreasonably underrated the weighttobeattaciieci>to applicant's Exhibits wherein Appellants title tosuit property superseded his competitors and Exhibit P3, zfortifyin^sthis^B^erfion stands as a typical example in this f ^gard^\^^ 5. \The learned Tribunal Chairman Chairman failed to clarify the \X // PIotpf-Land which Joseph Manda sold to appellate between one in which the vendor received two acres from each ie Bwege and Salum Manda to which he added his own six acres to sell 10 acres to the Appeallant or the 10 acres which reverted to Timothy Apiyo after seixure of 50 acres by Msongala Ward 2 Authority, though there is no evidence how Joseph Manda obtained the same from Timothy Apiyo; 6. The learned Tribunal Chairman misconstrued evidence adduced by DW1 and DW2 to have proved that the suit premises was part of the area which was allocated to the late Timothy Apiyo contrary to evidence on record; 7. That learned trial chairman for reasons best known to himself committed a serious omission of evidence^adduced by^PWS repudiating having given 10 acres to Baraka Juliusand^DWl's \\ testimony that the two plots of land donorinterfere with each other. Both witnesses evidencedo not fe^ureMn either Tribunal Proceedings or Tribunal Judgement;\ ^'\/ 8. Generally, the lear^ed^Tribunah^airman presided over that Application with predetermined mimpsuch that any evidence in favour of ApplicanAwas treated^with circumspect such that we could contei^plate^^^^ul^/^ The Appellant/viFrepresented\by? Mr. Christian Laurent Rutagatina, learned > x )) X" / advocate while^^Respondent-was represented by Mr. Joseph Manzi, learned advocateTThe Appealswas argued by way of written submissions. In his^submission) the Appellants counsel argued all the eight grounds of Appeal^collectiye^y. He substantially argued that the Trial Tribunal did not evaluate properly evidence on record. He argued that, evidence on record establishes that the late Thimoth Apiyo had no land in Msongola Ward by the year 2003 as his Land measuring 10 acres was confiscated by the Msongola Ward Government following his failure to comply with land allocation 3 conditions. He referred this court to exhibit Pl, P4 and P5 as evidence that supports the assertion that the Appellant's land is not the Respondents land. He submitted that, Exhibit Pl establishes that the Appellant purchased a piece of land measuring 10 acres from Joseph Manda on 18th December 2006. Exhibit P4 indicates that, the Msongola Ward Government confiscated 50 acres out of 60 acres originally allocated to the late Timoth Apiyo. The autlnority left 10 acres in possession of Timothy Apiyo with conditions that he should'dw.elop the same within two years. The two years expired in 2003. ^^br^tted'vftHjh^that, evidence on record establishes that Timoth Apiyo^idV^^^eiop^sdand. He backed up his conclusion by the testimony^oWW2\Selemani Said Beho that Baraka Julius and the Respondent were pressurizihg-Mbondole and Msongola Ward Authorities to show them thedbcation ofthe 10 acres that remained in \\ \\ possession of the late Thimdth^Apiya. According^to him, the fact that the If \\/> Respondent and the said Baraka Julius^did not know the location of the 10 acres, it means the same were^neverdev^loped. Commenting^on-the^andiqgsover of^l’G acres allegedly belonging to the late Apiyo to BaraWJulius as reflected/ih Exhibit P5. He argued that, the same took place on-7tikMeirch^Oli^SZyea^from when the Appellant purchased his land In hisreply submission, learned counsel for the Respondent submitted that, the TriaNTribunakchairman considered and evaluated fairly evidence adduced by both parties. He summarized evidence produced by each party to the Application before the tribunal and argued that, the Respondent's evidence was strong enough to show that the Respondent is the owner of the disputed land. He pointed out the undisputed fact that the late Timothy Apiyo was allocated 60 acres of land and after surrender of 50 acres on 1st February 2011, he 4 remained with 10 acres. He argued further that, PW3 Said Abdallah Andanenga, testified that the land sold to the Appellant is the Respondent's land. And the fact that the same land was handled to Baraka Julius on 7th March 2011 as evidenced by exhibit P5. He also submitted on contradictions in the Appellants evidence as to how Joseph Manda, the Appellants vendor acquired the disputed^) acres. He is of the view that the testimony that the 10 acres sold to the Appellant consists of 6 acres belonged to Joseph Manda, 2 acres that belonged^toj^e^yege and 2 acres that belonged to Salum Manda but Joseph^Mand\^^ngiyJncluded the 4 acres which were not his property and^sold the\Same\to the Appellant is a mere cooked story. In his rejoinder the Appellante^ounselT^femted>iis submission in chief. After considering rival submission by/the parties, I can now determine this Appeal on merits. The^mai Vissue who^the^lawful owner of the suit land. SrS \\ // According to court records nd submissions by both parties, it is not disputed that the late Tirnbt^^Apiyo'was allocated 50 acres of land by Msongola Village // \y> Authority. ItNs^Qot^disQuted^lso that he failed to develop the same. Court record'^contams confOhg"facts as to what happened after Apiyo's failure to develop the 6O'acresx\. According to exhibit P4, a letter written by PW3 Saidi A. Andanenga as a chairmanof-Msongola village addressed to Timoth Apiyo and others, on 10th June 2000, Msongola village council acquired 50 acres out of the 60 acres which were originally allocated to Timoth Apiyo and distributed the same to the villagers. According to attachments to exhibit P4 the 50 acres acquired by the village were distributed to 13 villagers. The letter contains a warning that the land retained after acquision of the 50 acres should be developed within 2 years otherwise it will also be acquired and distributed to other villagers on the third year. On the other hand, there are allegations that Thimoth Apiyo surrendered the 50 acres by himself on 1st February 2011 and on 7th March 2011, PW3, Saidi Abdallah Andanenga, handled over the 10 acres that were retained from the 60 acres to Baraka Julius. The handing over of the 10 acres is,evidenced by exhibit P5. Despite handing over the 10 acres to Baraka Julius, PW3Testified to the effect that Joseph Manda had the right to sell the loCcres'as they^bejong^d to him. The relevant part of his testimony as if appears. in/the^hand written proceedings of the Trial Tribunal reads; "/ allowedJoseph Manda to safe^^a^a^^motn^Apiyo because Joseph Manda has right to^sate that^rea:^77mothy Apiyo failed to develop 10 acres and^tj^fw acres'vere^en by the village and handled to Joseph^Manda^ who^was^th^care taker of the area. The time Joseph Manda.so!^hat^reajt2/as lawful as at that time that area belongeddo 'jbsephManda'ashe was given that area by the I find/the-appeaKto<have merits as though there are minor contradictions in evidence adduced^bVsAppellant witnesses, evidence establishes that the suit land was sold tee the Appellant by Joseph Manda. All Appellant's witnesses testifiedstoThe"effect that the land was the property of Joseph Manda at the time the sale transaction took place. Although PW2 testified that the land sold to the Appellant had a dispute between Mzee Bwege and Manda, he stated that other parties to the disputed had forgone their dispute and left the land in dispute in the hands of the Appellant. This witness was the Mtaa Goverment chairman of the area where the suit land is located from 2004 to 2014. It was 6 his testimony that when he became a leader, Timothy Apiyo had no land as his land was acquired and distributed to the villagers. PW3 had a similar testimony with regard to whether Timothy Apiyo has any land in the area. He testified that the 10 acres which remained in possession of Timothy Apiyo were also taken by the village and handled to Joseph Manda. It is not clear as to when exactly were the remaining 10 acres acquired by the village, but evidence on record indicates that the 10 acres that^remainedj^the late Apiyo's possession were acquired by the village\Whethej- sucmacquisition was proper or not, is not relevant to this appeafr As to whether the 10 acres sold to the Appellant were^thesame as the 10 acres that were retained by the late Apiyo^(bouhderjes^indicated in exhibit Pl, the sale agreement between Josep£^anda\nd theAppellant, indicates that the 10 acres are not the same tcythose whicbN^ in possession of Apiyo. I hold so while alert that,. PW3\Said/Abdallah <Andanenga testified that he had /c \\ ) shown the same 10/acres as thejapdybelonging to Apiyo when he was summoned to show<he land^belonging to Apiyo by the Ward Tribunal, for the following reasons;- l.TheZboundarieFbfth^ Appellant land indicate that Apiyo's land His located^inthe^Southern side of the purchased land; 2XThat there is no evidence as the location of the 10 acres that remarnechin Apiyo's possession, thus it cannot be presumed that the land which in 2006 was indicated to be bordered by Apiyos land, in 2011 the same parcel of land is considered to be Apiyos land; । 3. That Salum Said Manda, testimony that the 10 acres which remained in possession of the late Timothy Apiyo was given to Chrispin Mbonde Kimbetere and that the area that was given to Manda formed party of the 50 acres that were surrendered by Apiyo. Even if the land will be considered to be the 10 acres that remained in possession of the late Apiyo in the year 2000, yet evidence establishes that all land that was allocated to the late Timoth Apiya was acquired by the village government and relocated to other villagers including Joseph Manda. In such circumstances, the Respondent cannot be considered to be the owner of the land which was acquired by the land allocating authority, allocated to a different person, Joseph Manda, and sold to the Appellant. For those reasons, I find the Appellant to be the lawful owner of the suit land and I hereby allow the Appeal. Given circumstances in this Appeal, I award no costs. Right of Appeal Explained. JUDGE 3/9/2021 8