ezekiel mirugi tweve vs william fidelis kagaruku 2018 tzhclandd 496 20 august 2018

< IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPEAL NO. 22 OF 2018 (Arising from Judgment of Mkuranga District Land and Housing Tribunal Appeal No. 57 of 2016 and Vikindu Ward Tribunal Civil Case No. 09 of 2016) EZEKIEL MIRUGI TWEVE......................... ....... APPELLANT VERSUS WILLIAM FIDELIS KAGARUKU......................RESPONDENT Date o f last Order: 10/8/2018 Date o f Judgment: 20/8/2018 JUDGMENT MGONYA, J. The Appellant being aggrieved by the decision of District Land and Housing Tribunal delivered on 22/01/2018 before the Mkuranga District Land and Housing Tribunal; is appealing to this Court on the following grounds: 1. That the District Land and Housing Tribunal erred in iaw and facts in faiiing to consider that portion of disputed land and the contents therein, owned legally by the Appellant; i 2. That the District Land and Housing Tribunal erred in law and facts when failing to consider that the Appellant have been in disputed land for more than 20 years (18th April\ 1998 to date) (Annexure attached) 3. That the District Land and Housing Tribunal erred in law and facts when the Respondent destroyed the plants which were in farm ( Annexure 2 attached) when reported this to the (Mwenyekiti Kitongoji); 4. That the District Land and Housing Tribunal erred in law and facts when failing to consider that the issue started at Serikali ya Kijiji where Baraza la Ardhi la Kijiji was involved. With the leave of the Court, the Appeal was disposed by way of written submissions. After going through the detailed and respected submissions for and against Petition of Appeal, as well the Lower Tribunals' record, I don't intend to reproduce the parties submissions which I have taken both into consideration to this Appeal; and instead, I have decided to proceed to determine the merits or otherwise of this Appeal; determining all grounds of appeal collectively. The Appellant's evidence on record is that he was allocated the suit land by the Village Land Council in 1998 with receipt No. 001 dated 18thApril, 1998. According to the Appellant, the disputed land was developed and plants like coconut trees were in the disputed land cultivated; see annexure 1. Later on, on 22nd April, 2016 the Appellant reported to the Chairman about the destruction of some small plants of coconut trees. Finally, the Village Land Council came to the conclusion that the Appellant was a rightful owner of the disputed land. The Respondents also gave his evidence and testified to the effect that he was allocated the disputed land in 2003 by the village land Council for Magodani and all those trees and enjoyed the ownership of the disputed land throughout. The record further revealed that, the Appellant is the first person to own the disputed land in 1998, but, the record further reveals that, the Government re-allocated the land of 40 acres to the Respondent including the disputed land in 2003, that is five (5) year after the Appellant abandoned the said land. The Respondent's re-allocation was through District Commissioner via an Order "Agizo" dated 2/10/1997 in which stated, I quote: "Kutokana na agizo !a Mkuu wa WUaya ya Mkuranga lililotolewa mnamo tarehe 2/10/1997juu ya ugawaji mapori/mashamba yaliyotelekezwa na wahusika." It is from above explanation, I am of the firm view that the first Appellate Tribunal correctly reached to its decision. The record of trial Tribunal shows that the Respondent was legally allocated the suit land by the Village Council and that he possessed the suit land over twelve year peaceful. The Law provides ownership to a person over the land after a long undisturbed occupation of the same. On this you may wish to refer to the case of NASSOR VS. RAJABU SIMBA (1967) HCD No. 233. In this instant Appeal, the evidence revealed that the Respondent was allocated the disputed land in the year 2003 and he had been in undisturbed use and occupation of the same until the year 2015 when the Appellant sued the Respondent for trespass. It is a well settled principle of the law that, where a person occupies another land undisturbed for a long period of time, that person acquire land by adverse possession. In the book titled "The Customary Land Law of Tanzania" a source Book by W. James and G.M. Fimbo, on the Acquisition of Titles by long possession; at page 533, the learned Authors stated that: "Received law permits a person to acquire an interest in property by long interrupted possession and user...." See a case of NASSOR UHADI VS. MUSSA KARUNGE, HIGH COURT OF TANZANIA at Dar es Salaam in Civil Appeal No. 17 of1977snunciated the above principal, where it held that:- "Where a person occupies another land over a long period and develops it, and the owner knowingly acquiesces such a person acquires ownership by adverse possession". In the instant case, as I have already stated herein above, the Respondents had been in undisturbed Occupation of the disputed land for about 13 years, this entitles the Respondent ownership by an adverse possession. I believe that the Appellant after been given the suit/disputed land in 1998, he abandoned the land by failure to show interest on it as a result the Respondent was allocated the said abandoned land in 2003 by the Local Authority ( Village Council). Further, the Appellant was still away for the whole period until 2015 when the matter arose. The evidence from the lower Tribunal record speaks that, the Respondents were lawfully allocated the disputed land by Magodani Village Land Council in the year 2003. This was evidenced by the receipts which were tendered before the trial Tribunal. The Respondent's evidence on trial Tribunal was collaborated by the testimonies of ADAN JOHN MALWALA who was among the Members of Village Council who was selected to assist in placing boundaries to the farms by the time when the Respondents were allocated disputed land. Further it is trite Law that where the case is based on the evaluation of evidence, it is the trial court which is better place to evaluate evidence than the Appellate court which only reads the records. This position seen in the case of JUMANNE S/A BUGINGO & ANOTHER VS. REPUBLIC (C. A MWANZA) Criminal Appeal No. 137 of 2002 (Unreported) in which the Court of Appeal, KAJI J.A quoted from the case of ALIABDALLAH RAJAB VS. SAADA ABDALLAH RAJABU AND OTHERS (1994) TLR132 in which it was held; "Where the decision o f a court is wholly based on the credibility o f the witnesses, then it is the trial court which is better placed to assess their credibility than an appellate court which merely reads the transcripts o f the records The Court of Appeal went on to quote from another case of JIMMY ZACHARIA VS. REPUBLIC, Criminal Appeal No. 69 o f2006 (Unreported) that:- "The practice is that in a second appeal, the Court rarely interferes with the concurrent findings o f fact by the Courts below. It is only when they are misdirection or non-directions of evidence," From the above findings, I do not find any justifiable reasons that calls for this second Appellate Court's interference. I therefore find that the lower Tribunals correctly analyzed evidence and came up with a just and fair decision. In the event, all grounds of Appeal are devoid of merits. I hereby dismiss the Appeal with costs for want of merits. Right of Appeal Explained. L. E. Mi JUDGE 20/ 8/2018 COURT: Judgment delivered in the presence of both parties in person and Ms. Caroline RMA on 20th day of August, 2018 in chamber No. 18. L. E. MGONYA JUDGE 20/ 8/2018