Land Appeal 5 of 2023 Judgment Mrisha J

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA LAND APPEAL NO. 05 OF 2023 (Originated: from the District Land and Housing Tribunal for Mpanda at Katavi in Application No.05 of2022) FILIMONI TEODORY KASHELO..................... .APPELLANT VERSUS ANISETI JUMA......... ............ ............. .....RESPONDENT JUDGMENT 06th March & 12th April, 2024 MRISHA, J. Before me is a memorandum of appeal which is predicated into five (5) grounds of appeal to be displayed shortly and upon which the appellant Filimoni Teodory Kashelo, seeks the following orders to be made in his favour: - i. Declaration that the suit land is the appellant's property. ii. Vacant possession. iii. Costs of the suit. iv. Any other reliefs this court may deem fit and proper so to advance. i His case is briefly that he acquired the suit land which contain three (3) acres, located at Katabi Uzega area in Uruwiia Village, within Mpanda District in Katavi Region which was bare land since the year 2014 and has been occupying it undisturbed since then until the year 2020 when the respondent Aniseti Juma, emerged and sued him before the Uruwila Ward Tribunal (the ward tribunal) in respect of the said suit land; however, he won the case, but the District Land and Housing Tribunal for Mpanda at Katavi (the trial tribunal), vide Application No. 5 of 2022, declined to admit the judgment of the ward tribunal which was intended to form part of the appellant's evidence despite his request with regard to that legal document. When the appeal came before the court for hearing, both parties who appeared in person and unrepresented, agreed that the present appeal be canvassed by way of written submissions, then the court granted such prayer and made a scheduled order which was complied with by both of them. Initially, the grounds of appeal upon which the parties herein were expected to submit for and against through their respective written submissions, were as follows: - 1. That, the trial tribunal erred at law by recognizing and working upon the sale agreement disposing the suit land which was procured and entered contrary to law. 2 2. That, the trial tribunal erred at law by failure to recognize long occupation of the appellant over the suit land (adverse possession). 3. That, the trial tribunal misdirected itself by its act of declining to admit and form part of the (sic) appellants evidence the judgment of the Uruwila Ward Tribunal in Land Dispute No. 20 of 2020 despite the appellant request and that a copy of the same was attached as an exhibit with the (sic) appellants written submission of (sic) defense. 4. That, the trial tribunal erred at law by its failure to take into consideration the judgment of Uruwila Ward Tribunal in Land dispute No. 22 of 2020 which was decided in the (sic) appellants favour and the same was not appealed against. 5. That, the trial tribunal erred at law by failure to advance reasons for departing from the opinion of the assessors. However, the appellant dropped grounds four and five. Hence, the parties confined their submissions in respect of the first, second and third grounds of appeal which are: 1. That, the trial tribunal erred at law by recognizing and working upon the sale agreement disposing the suit land which was procured and entered contrary to law. 3 2. That, the trial tribunal erred at law by failure to recognize long occupation of the appellant over the suit land (adverse possession). 3. That, the trial tribunal misdirected itself by its act of declining to admit and form part of the (sic) appellants evidence the judgment of the Uruwila Ward Tribunal in Land Dispute No. 20 of 2020 despite the appellant request and that a copy of the same was attached as an exhibit with the (sic) appellants written submission of (sic) defense. Commencing with ground one, the appellant humbly submitted that the sale agreement disposing the suit land lacked all the features consistent of a proper contract as it suffers from three defects namely first, that the title of the alleged sale agreement which goes thus, "Mauziano ya Mashamba ya mama Wasumali na Bwana Aniseti Juma" is vague because the said sale agreement was not signed by mama Wasumali who is unknown, but by one A. Aufemia as the vendor. Similarly, the appellant submitted that the title indicates that the agreement was about sale of many farms without describing those farms. Secondly, it was his submission that the said sale agreement was made before a hamlet chairman who is not competent to sign the same which is contrary to the provisions of section 8 (1) of the Village Land Act, Cap 114 R.E. 2019 which declare that the Village Council shall subject to the provisions of that 4 Act be responsible for the management of all Village Land. He also backed his proposition by citing the case of Methuselah Paul Nyangaswa vs Christopher Mbote Nyirabu [1987] TLR 103 (CA). Thirdly, the appellant submitted that safe of the suit land was made by a vendor who failed to prove her appointment as the administrator of her late father's estate one Ismail s/o Chambala, as it is shown at pages 2 and 4 of the trial tribunal typed records. Stressing more on that point, the appellant submitted that it is the law that the administration of the deceased's estate cannot be made by any person except by the administrator duly appointed by a probate court in that respect. Thus, it was his argument that since no proof whatsoever was made by one Eufenia Chambala regarding her legal status in respect of her late father's estate, the whole transaction of disposing and acquiring her late father's properties including the suit land, was null and void. Again, the appellant bolstered his stance relying to the case of Farah Mohamed vs Fatuma Abdallah [1992] TLR 205 to the effect that, "He who does not have legal title cannot pass good title over the same to another" 5 He then concluded that point by arguing that failure by the respondent to prove that he acquired the suit land from a proper vender of the same, is fatal to the case at hand. His submission in respect of ground two was that the appellants testimony before the trial tribunal with regard to the length of time he has been in occupation of the suit land, was not challenged by the respondent which act, the appellant argued, is detrimental to the respondents case. In cementing that position, reliance was made to the case of Kwiga Masa vs Sam we I Mtubatwa [1989] TLR where it was stated that, "Where aa witness version during examination in chief is not challenged by way of cross-examination the same is taken to be true." As for the third and last ground of appeal, the appellant submitted that the trial tribunal misdirected itself by its act of arrogantly declining to accept and admit the judgment of Uruwila Ward Tribunal in Land Dispute No. 22 of 2022 for it to form part of the appellants evidence, despite the appellant's request that the same be admitted by the said tribunal while it was annexed with the appellant's Written Statement of Defence (WSD). To clarify more on that point, the appellant drew the attention of the court to page 3 of the trial tribunal impugned judgment wherein the Hon. Learned 6 Chairman while referring to the appellant's piece of evidence, indicated that during cross examination the appellant responded that, "Katika maswali ya dodoso alisema Baraza la Kata alishinda yeye/z The above Swahili excerpt has a meaning that upon being cross examined, the appellant responded that he is the one who won the case against the respondent before the Ward Tribunal. Similarly, the appellant submitted that the records of the trial tribunal reveal at page 2 that in the course of filing his Written Statement with the trial tribunal vide Application No. 05 of 2022, averred through his respective WSD that in 2020 the respondent (who was applicant by then while the appellant herein was the first respondent) sued the appellant vide Land Application No. 22 of 2022 over a Suit land, but after a full trial, the appellant won the case. That, he also indicated in his WSD that he had annexed a copy of the ward tribunal's judgment as Annexure"A", but the trial tribunal misdirected itself for not only rejecting that copy of judgment as part of his evidence, but also it misdirected itself for admitting the Application No. 05 of 2022 which according to the appellant, was res judicata hence to him, the trial tribunal acted contrary to the prohibition stipulated under section 9 of the Civil Procedure Act, Cap 33 R.E. 2019 (the CPC) which provides that, Res judicata 7 No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court". The appellant went a further step ahead by submitting a point which was undisputed by the adverse party stating that when the Land Dispute No. 22 of 2020 was filed with the ward tribunal by the respondent in the year 2020, the ward tribunals including the one at Uruwila, were clothed with jurisdiction to hear and determine land matter as per section 13 (2) of the Land Dispute Courts Act, Cap 216 R.E. 2019. Having so submitted, the appellant argued that the Application No. 05 of 2022 ought not to be filed with the trial tribunal and admitted by it as the issue raised by the respondent had already been substantially and directly dealt with by the ward tribunal vide Land Dispute No. 22 of 2022 with the parties being the same, thus making the former application res judicature. Due to Such procedural flaw, the appellant submitted that the only avenue which was available to the respondent, was to appeal against the judgment of 8 the ward tribunal which was determined through the Land Dispute No. 22 of 2020 or apply for Revision, as an alternative. He ended his submission by arguing that the respondents failure to use any of the above remedies indicates that the respondent has thrown overboard his rights as he is currently barred to utilize them. Having said so, the appellant reiterated his previous prayer to the court to make various orders, as described above. In reply, the respondent while taking note of the grounds of appeal dropped by his counterpart, commenced his submission in respect of the first ground of appeal by stating that he strongly disputes the same and proceeded to argue that there is not material error committed by the trial tribunal in admitting and working upon the alleged sale agreement in order to resolve the land dispute. His reasons in that regard, were that the said sale agreement contain all elements of a valid contract as provided under section 10 of the Law of Contract Act, Cap 345 R.E, 2019 and another reason is that one cannot challenge a document which has already been tendered and admitted in evidence as an exhibit, rather he/she can rightly do so before admission of that document or in other words, during trial. Hence, it was his argument that it was wrong for the appellant to bring that challenge at the appellate stage. 9 On the arguments that the title of the alleged sale agreement is vague and that the said agreement was made and assented by a person not competent to sign the same, the appellant strongly disputed such arguments by submitting that the said sale agreement was not new to the appellant as it was tendered and admitted during trial/ but he did not object it; thus, it is not proper for him to challenge such document before the appellate court. The case of Jumanne Maulid Silayo vs Yvesi Bokolo Mmbando, Civil Appeal No. 30 of 2022 was relied by the respondent to back up the above argumentation. Submitting in respect of the argument that alleged sale agreement was made by the vendor who failed to prove her appointment as the administratix of the late Ismail s/o Chambala, the respondent contended that since it is evident that the said vendor inherited the suit land from her late father under customary law and she was the only heir left behind/ it was not necessary for her to pass through the probate court in order to obtain that legal status as the customary law in our country allows heirs to inherit land from their parents without going to the probate court, as it was stated in the case of Edward Ntinkule vs Evarist Ntafato, Misc. Land Appeal no. 11 of 2022 (HCT at Kigoma, unreported). io Turning to ground two, the respondent disputed it arguing that the principle of adverse possession should not be used as a sword of shield to own land. In that regard, he made reliance to the case of Attorney General vs Mwahezi Mohamed and 3 Others, Civil Appeal No. 391 of 2019 in which the case of Orignes Kasharo Uiso vs Jacouelin Chiza Ndirachuza, Civil Appeal No. 259 of 2017 (all unreported) where it was stated that: "No declaration can be sought on the basis of adverse possession in as much as adverse possession can be used as a shield and not as a sword the appellant cannot rely on the principle of adverse possession in a case" Having said so,the respondent argued that based on the above authority he is of the view that the appellant is not an: adverse possessor of the suit land by any means. He also argued that since the second ground carries an issue of adverse possession which was never argued and determined by the trial tribunal, it was improperly raised at the appellate stage. To support that position, the respondent referred the court to the case of Juma Said Luhombero and Hussein Said Luhombero vs Aisha Hamad Luhombero, Land Appeal No. 21 of 2022 in which the case of Farida and Another vs Domina Kagaruki, Civil Appeal No. 136 of 2006 was referred to the effect that: ii "It is genera! principle that the appellate court cannot consider or deal with issues that were not canvassed^ pleaded and not raised at lower court" Finally, the respondent submitted in respect of ground three by contending that that the trial tribunal was right to expunge admitting the Uruwila Ward Tribunal judgment pertaining to Land Dispute No. 20 of 2020 as it was irrelevant to the dispute land which is the subject of the instant appeal. He clarified that Land Dispute No. 20 of 2020 was between the Appellant and one Eufemia Ismaiiy Chambala who was the second respondent in Application No. 05 of 2022 before the trial tribunal arid not between the appellant and the respondent and that is why the judgment in respect of Land Dispute No. 20 of 2020. Apart from that, it was the submission of the respondent that in land Dispute No. 22 of 2022, the trial ward tribunal did not reach to the finality of its decision due to contradictions among its members as to who was the rightful owner of the suit land and decided to direct parties to refer their dispute to the District Land and House. Thus, based on such arguments, the respondent submitted that it was not proper for the appellant to argue that the matter before the trial tribunal was res judicate since the dispute before the trial ward tribunal had never reached 12 to finality and that is why the trial tribunal did not admit the judgment of the said ward tribunal. Still on the issue of res judicata, the respondent contended that such is a new issue which was not supposed to be raised at this appellate stage and in order to cement his stance, the respondent recited the case of Juma Said Luhombero and Hussein Said Luhombero vs Aisha Luhomberdo (supra). He also argued that it is the principle of law that for the doctrine of res judicata to be ascertained or proved, the previous judgment must be provided before the trial court. In conclusion, the respondent submitted that due to the reasons advanced and explained by him through his submission in reply to the appellant's submission, he is of the view that the present appeal has no merit. Hence, he prayed that the same be dismissed with costs and the decision of the trial tribunal be upheld. The appellant did not make a rejoinder submission and that marked the end of the rival submissions of both parties in relation to the three grounds of appeal raised by the appeal. On my part, I have first of all considered all the argued grounds of appeal and secondly, I have carefully gone through the rival submissions of the parties, 13 the authorities refereed thereto as well as the records and the typed judgment of the trial tribunal which is the subject of the present appeal. In my opinion, the main issue for determination is whether the present appeal has merit. However, before I delve into that issue, I think there is a need to determine a number of questions which come to the focus. First, was there any land dispute before Uruwila Ward Tribunal which involved the parties herein? If, the answer to that question is Yes, what was it all about and how was it resolved? Again, was the Land Application No. 05 of 2022 before the trial tribunal res judicata? In my view, those are the crucial questions which need to be answered first before the main issue because they have something to do with the third ground of appeal which appears to fault the trial tribunal for its failure to admit the judgment of the trial ward tribunal to form part of the appellant's evidence. I shall quickly start with the first question, was there any land dispute before Uruwila Ward Tribunal which involved the parties herein? If, the answer to that question is Yes, what was it all about and how was it resolved? It appears to me that through his third ground of appeal the appellant has complained that the trial tribunal misdirected itself for declining to admit the 14 annexed copy of Uruwila Ward Tribunal in respect of Land Dispute No. 20 of 2020 while the same was intended to form part of the appellants evidence. •However, I have observed that throughout his written submission in respect of that ground of appeal, the appellant has been referring to Land Dispute No. 22 of 2020 while maintaining that despite attaching a copy of that judgment with his WSD, the trial tribunal declined to admit it as part of his evidence, as it is shown from page 4 to 6 of his respective written submission dated the 5th day of September, 2023. The above entails that the appellant was actually referring to Land Dispute No. 22 of 2020 and not Land -Dispute No. 20 of 2020 which appears to be mentioned in the third ground of appeal. That in my, was a human error which is tolerable and excusable. I believe so because under normal circumstances, if the appellant meant that the land dispute before the trial ward tribunal between him and the respondent was registered as Land Dispute No. 20 of 2020, then one would have expected him to mention it in the course of making his submission in chief regarding the third ground of appeal. Also, the fact that there was a land dispute between the appellant and respond filed as Land Dispute No. 22 of 2020, has not been disputed by the 15 respondent. This is shown at page 4 of the respondent's part of submission in chief where he has submitted that, "In Land Dispute No. 22 of2020, the trial ward tribunal does not reach to the finality due to contradictions between members of the trial tribunal against who is the rightful owner rather the trial ward tribunal directs the parties in dispute to refer the dispute to the district land and housing tribunal..so it was proper for the Trial Tribunal to admit Land case no. 05 of2022." The above excerpt depicts not only that the respondent is aware that he had a land dispute with the appellant before the ward tribunal of Uruwila which was registered as Land Dispute No. 22 of 2020, but also, he has plainly shown that the land dispute which was placed before the trial tribunal vide Land Application No. 05 of 2022 was the same to the one which according to him was tried, though not determined on merits before the Uruwila Ward Tribunal. That also brings another question whether it is true that the Uruwila Ward Tribunal did not reach to finality in determining Land Dispute No. 22 of 2020. However, before I tackle that important question, I shall first determine the question what was the Land Dispute No. 22 of 2020 all about and how was it resolved. 16 The answers to those questions are not farfetched. This is because it is on record that the Land Dispute No. 22 of 2020 was about a piece of land containing three (3) acres which the respondent who by then was the applicant, alleged that the appellant/respondent had invaded. This observation of the court is fortified by the copy of the judgment of Uruwila Ward Tribunal in Land Dispute No. 22/2020 which was annexed to the appellant's WSD dated the 29th day of April, 2022. Also, in my careful examination of the records of the trial tribunal, I have not come across any judgment of the trial ward tribunal registered as Land Dispute No. 20 of 2020; it is only Land Dispute No. 22 of 2020 which appears to be mentioned in the appellant/respondent's pleading. Next question is how was Land Dispute No. 22 of 2022 resolved? Looking at page 5 of the written ward tribunal's judgment, it appeals that after gathering evidence from both parties who were Annisethi Juma and Philimoni Kashelo, the respondent and the appellant herein, the said ward tribunal found that since the appellant had been in long occupation of the suit land for over twelve (12) years, then he became the adverse possessor of the suit land. Hence, it declared him the owner of the suit land. On whether it is true that the Uruwila Ward Tribunal did not reach to finality in determining Land Dispute No. 22 of 2020, it the submission of the respondent. 17 particularly at page 4 of his respective written submission that the trial ward tribunal of Uruwila did not reach to the finality of Land Dispute No. 22 of 2020 due to contradictions between members of that tribunal as to who is the rightful owner of the suit land and decided to direct the parties to refer their dispute to the trial tribunal, as a result Land Application No. 05 of 2022 was filed by the respondent. In other words, if I have understood him well, the respondent is trying to convince the court to believe that the land dispute between him and the appellant which was registered as Land Dispute No. 22 of 2020 was not determined on merit by the Uruwila Ward Tribunal due to contradictions of its members on who between the appellant and the respondent is the rightful owner of the suit land. If that is the case and with all due respect to the respondent, that is not what transpired in the ward tribunal of Uruwila when dealing with Land Dispute No. 22 of 2020.1 say so because at page 7 of its judgment, the said ward tribunal had the following to say: - "Kwa maamuzi haya mlalamikiwa ndiyo mmiliki halali wa maeneo hayo PHILIMONIKASHELO" The above Swahili excerpt entails that in arriving to its decision, the ward tribunal of Uruwila found that one Phillmoni Kashelo (the appellant herein), is 18 the rightful owner of the suit land. In the circumstances, it is apparent that trial ward tribunal of Uruwila reached to the finality by determining the land dispute between the appellant and the respondent on merits. Hence, I find that the argument of the respondent that the said dispute was not determined on merits, is baseless and unmerited. Haying answered the above issues on the way they deserve, I now turn to the crucial issue which is whether the Land Application No. 05 of 2022 before the trial tribunal res judicata. The doctrine res judicature has not been expressly defined under the statute, thought it has been reflected under section 9 of the CPC, as rightly submitted by the appellant. However, its meaning can be grasped under the caselaw. For instance, in the case of Jalibu Mrisho Mwene Milao (Administrator of the estate Of late Mrisho Jalibu) vs The Hon. Attorney General and Others, Land Appeal No. 49 of 2021 (HCT at Dar es Salaam, unreported) my brother Mgeyekwa, J. borrowed the definition of the term res judicata from the Black's Law Dictionary, 8th Edition which I also subscribe, to mean thus, An issue that has been definitively settled byjudicial decision. 2. "An affirmative defense barring the same parties from litigating a second iaw suit bn the same claim, or any other ciaim arising from the same 19 transaction or series of transactions and that could have been -but was not- raised in the first suit" Conning to the case at hand, it has been argued by the appellant that the Land Application No. 5 of 2022 which was filed with the trial tribunal by the respondent, was res judicata because it involved the same parties, the same subject matter which is about a claim of three acres piece of land and it had already been substantially determined by the Uruwila Ward Tribunalvide Land Dispute No. 22 of 2020. In disputing the above argument, the respondent came up with two reasons; first, he was of the view that Land Application No. 05 of 2022 was not res judicata because the trial ward tribunal of Uruwila did not finally determine Land Dispute No. 22 of 2020 between the appellant and the respondent and his second reason was that res judicata is a new issue and therefore it was not supposed to be raised by the appellant at his appellate stage. Having gone through the above parties' rival submissions with regard to the issue of res judicata, the records of the trial tribunal as well as the impugned judgment, I have observed that there is no truth, whatsoever, on the argument that the matter before the ward tribunal of Uruwila which involved the same parties and the same subject matter as in Land Application No. 05 of 2022 before the District Land and Tribunal for Mpanda at Katavi (the trial 20 tribunal), had not been heard and finally decided by the said trial ward tribunal. Much as I have already elaborated on that point above, I shall conclude on this issue by finding that the argument raised by the respondent is unfounded and I join hands with the appellant by holding that the dispute between the appellant and the respondent in respect of the suit land, had already been heard and finally determined by Uruwila Ward Tribunal vide Land Dispute No. 22 of 2020. Again, on the argument that res judicata is a new issue and therefore it was not supposed to be raised by the appellant at this appellate stage, I with due respect to the respondent, refrain from buying his idea. This is because the records of the trial tribunal clearly reveal that in the course of filing his WSD, the appellant/respondent drew the attention of the said trial tribunal that he had attached with his WSD the judgment of the Uruwila Ward Tribunal in Land Dispute No. 22 of 2020. This is shown at paragraph 2 of the WSD filed by the appellant. In that paragraph, the appellant who was the first respondent in Land Application No. 05 of 2022, averred that, "Lakini mwaka 2020 Mwombaji ah'fungua kesi Baraza la Kata Uruwila mgogoro wa Ardhi No. 22/2020 kumlalamlkia Mjibu madnibi wa kwanza 21 kuhusiana na shamba ekari tatu za mbuga, ambazo ndizo zenye kubishahiwa katika shauri hili. Katika kesi hiyo Mjibu maombi wa kwanza aiishinda kesi. Mwombaji hakukata rufaa. Naambatanisha hukumu ya Baraza la Kata Uruwila kama kiambatanisho "A". [Emphasis supplied] The above Swahili excerpt entails that in the year 2020 the respondent who was the applicant in Land Dispute No. 22 of 2020, sued the appellant (first respondent in Land Dispute No. 22 of 2020) for a piece of wetland involving three (3) acres which was also contested in Land Application No. 05 of 2022. It was also his averment that he won in that case, but the respondent did not appeal against that decision of the ward tribunal. He also told the trial tribunal that he had attached with his WSD a copy of the Uruwila Ward Tribunal, as Annexure "A". (The underlining is mine) The above excerpt, in my view, clearly indicates that the appellant properly drew the attention of the trial tribunal that the land dispute between him and the respondent had already been heard and finally determined by the Uruwila Ward Tribunal vide Land Dispute No. 22 of 2020, but without any reasons, the learned chairman of that tribunal did not take efforts to work on that serious legal issue raised by the appellant who appeared as the respondent. 22 This is justified by the impugned judgment of the trial tribunal where it is shown that despite noting at page 3 of such judgment that during cross examination the appellant responded that he won the case before the Uruwila Ward Tribunal, the honourable learned chairman did not bother to assign any reason why he refused to admit a copy of judgment attached by the appellant which is claimed to involve the same subject matter between the appellant and the respondent and which according to the appellant, determined such dispute on merits. In my view, had the trial tribunal's chairman properly directed his mind on the issue of res judicata raised by the appellant at the very beginning, he would have decided otherwise by dismissing the respondent's application for being res judicata. This is because, the law under section 9 of the CPC prohibits any court of law in our jurisdiction, to try any suit or issue which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties litigating under the same title in a court competent to try such subsequent suit or the suit which such issue has been subsequently raised and has been heard and finally decided by such court. As submitted by the appellant and undisputed by the respondent, in the year 2020 the Uruila Ward Tribunal, just like other ward tribunals countrywide, had 23 pecuniary jurisdiction to inquire into and determine land matters depending on the value of the land in dispute. The piece of land contested by the parties herein, was just three acres which obviously could not exceed the pecuniary jurisdiction of the said trial ward tribunal which tells that the said ward tribunal was properly clothed with such pecuniary jurisdiction to try the land dispute involving the parties herein. In the circumstance, it could be wise for the chairman of the trial tribunal, upon realising that there was the issue of res judicata, to stay hearing of Application No. 05 of 2022, let the parties address him on that issue and make his decision whether or not what was filed before him was a res judicate. His omission to undergo such apparent procedure, not only indicate that he misdirected himself, but also contributed in prolonging the dispute between the said parties unnecessarily. He would, if I may add, at least, advise the respondent to appeal against the decision of the ward tribunal, if he believed that the said trial ward tribunal wrongly decided the matter in favour of the appellant. In the circumstances and base on the foregoing reasons, I am constrained to find that ground three of the appellants memorandum of appeal has merit. My next task is to deal with grounds number one and two. However, I am of the settled view that the deliberation with regard to the third issue goes to the 24 root of the case at hand to the extent of sufficing to dispose of the present appeal. Hence, I find no need to proceed with the rest grounds of appeal as doing so will not change the outcome of the instant appeal to be disclosed shortly. In that end, the present appeal is found to be with merit. Consequently, the judgment of trial tribunal through Land Application No. 05 of 2022 is quashed, the orders passed thereto are set aside, the decision of Uruwila Ward Tribunal in Land Dispute No. 22 of 2020 which declared the appellant as the owner of the suit land, is restored and the respondent is ordered to vacate from the suit land forthwith. Costs to follow the event. It is so ordered. JUDGE 17.04.2024 DATED at SUMBAWANGA this 17th day of April, 2024 AZAZmRJSHA JUDGE 17.04.2024 25