genifefa kilian tindwa 2 others v yukundus amandus komba 2023 tzhc 19385 28 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SONGEA SUB - REGISTRY (LAND DIVISION) AT SONGEA LAND APPEAL NO. 22 OF 2022 (Originating from the District Land and Housing Tribunal for Songea at Songea in Land Application No. 08 of 2019) GENIFEFA KILIAN TINDWA ........................... ......... . 1st APPELLANT GOLO LUPEMBE .................... ...... ........... ............................. 2NQ APPELLANT THEODORA LUPEMBE (Administratrix of the Estate of the Late T EODO RI LUPEMBE) ...... . 3rd APPELLANT VERSUS YUKUNDUS AMANDUS KO MBA ........... RESPONDENT JUDGMENT Date of Last Order; 06/07/2023 Date of Judgment: 28/07/2023 U. E. Madelia, J. Before the trial Tribunal, the Respondent successfully sued the Appellants for trespass in a piece of land located at Njunde area in Peramiho Village within Songea District. The Respondent was declared to be the lawful owner of the piece of land measuring 1.25 acres and the Appellants were ordered to demolish their houses, vacate the disputed land and pay the costs of the suit. i Dissatisfied with the decision reached by the trial Tribunal, the Appellants preferred this appeal. In their joint petition of appeal, they had six grounds of appeal which can be paraphrased as follows: Z That, the trial Tribunal erred in law and fact by relying on the contradictory evidence of the Respondent and his witnesses. ii. That, the trial Tribunal erred in law and fact in determining the case in favour of the Respondent without property evaluating evidence adduced by the Appellants and their witnesses. Hi. That, the trial Tribunal erred in law and fact for disregarding the Appellants' evidence since they proved their case to the required standard ofproof. iv. That, the trial Tribunal erred in la w and fact to enter judgment in favour of Respondent herein while failed to prove his case to the required standard. v. That, the trial Tribunal erred in law and in fact in determining the matter in favour of the Respondent without regarding the evidence of the Appellant. vi. That, the trial Tribunal Chairman erred in law and fact by retying only on the evidences obtained at the locus in quo to enter judgment which is contrary to the law. A brief factual background of this appeal as can be garnered from the records are not complex. Simply it goes as follows: The Respondent who was the Applicant before the trial Tribunal sued the Appellants for trespass on a piece of land measuring 1.25 acres, which he claimed to be given by his late father in 1975. He built a house on that piece of 2 land and left it in the hands of one Teodor! Lupembe and Genefifa Tindwa who was the wife of Teodori Lupembe. For more than thirty years, the Respondent was not living in the disputed piece of land as he was away looking for green pastures. He left on 1978 and he gave his house and the disputed land into the hands of Teodori Lupembe to take care for the land. He testified further that Teodora Lupembe is the daughter of the late Teodori Lupembe and Genefifa Tindwa was the legal wife of Teodori Lupembe. The Respondent testified further that when he was back in 2018, he found someone has built houses in his land. He was told that the one who built the house was Genefifa Tindwa, the wife of Teodori Lupembe. Before instituting his claims, he made an effort to have a clan meeting with the Appellants in order to solve the dispute but it proved failure. He prayed for an order that the houses built by the Appellants to be demolished and the Appellants be ordered to vacate on the disputed land. The testimony given by the Respondent was collaborated by the testimony given by Simon Lupembe and Devotha Paulo Komba who are his neighbours. In their testimonies they testified that their lands are demarcated by the Respondent. They further testified that the 3 Appellants trespassed on the land of the Respondent by building houses and using for cultivation. Oh the other side the Appellants in heir testimonies testified as follows; DW1 (Gehefifa Kiliani Tindwa) testified that he was the legal wife of Tedori Lupembe who died in 1991. They started living on the disputed land since 1975 and the land was acquired through inheritance from the late Teodori Benedict Lupembe who was the father of her late husband. She testified that the disputed land is measured eight acres. Two acres she has built a house and the remaining six acres she uses for cultivation, DW2 (Joseph Kilian Ndomba) testimonies testified that DW1 own eight acres of land. In two acres she has built a house and the remaining six acres she uses for cultivation. DW3 (Teodora Teodori Lupembe) testified that she is the administratrix of the estate of her late father, one Teodori Benedict Lupembe. The letters of administration was admitted as an exhibit TD1. DW3 further testified that her late father acquired the disputed land from his father, one Benedict Lupembe. DW4 (Rehema Teodori Lupembe) and DW5 (Goro Teodori Lupembe) who are children of the late Teodori Benedict Lupembe testified that their late father obtained the disputed land from Benedict 4 Lupembe who was their grandfather. They added that they have built their houses in their family land and they didn't trespass in the land of the Respondent. All witnesses of the Appellants mentioned the demarcations of the disputed land as follows; in the East is boarded by Francis Komba, West Adelhelma Lupembe, in the South Benedict Lupembe and in the North side it is bordered by Makarius Nguruwe. After a full trial the trial Tribunal found the Respondent to have proved his claims and ordered the Appellants to vacate the disputed land and demolish the buildings they had built. Aggrieved by that decision the Appellants appeals in this Court on the above-mentioned grounds of appeal. It is important to note that, this appeal was disposed by way of written submissions. The Appellants were represented by none other than the learned advocate Mr. Hilary Ndumbaro whereas the Respondent enjoyed the service of the learned advocate Mr. Bernard Mapunda. Arguing in support of the first ground of this appeal, Mr. Hilary Ndumbaro averred that the evidence given by the Respondent and his witnesses were full of contradictions. He stated that the boundaries of the disputed land were differently described by PW1 (the Respondent) 5 and that given by PW2. Also, he stated that while PW1 testified that he was given the disputed land by his father in 1975, PW3 testified that PWl's father died in 1970. Mr. Ndumbaro stated that the contradictions found on the evidence given by the Respondent and his witnesses were wrongly ignored since they touch the root of the case and the trial Tribunal reached into unfair decision. The second and the fifth grounds of appeal were argued by the Appellants' advocate jointly. Mr. Ndumbaro averred that the trial Tribunal failed to evaluate the evidence given before it since the Appellants evidence proved to the required standards that the Appellants owns the disputed land. He contended that the Appellants and their witness testimonies proved clearly the boundaries, He added that the trial Tribunal erred by deciding in favour of the Respondent whose evidence was full of contradictions. He cited the case of Hemed Said v. Mohamed Mbilu (1984) T, L. R 113, in which the Court held that, according to the law both parties to the suit cannot tie, but the party whose evidence is heavier than that of the other is the one who must win. Mr. Ndumbaro added that it was wrong for the trial Tribunal to decide in favour of the Respondent whose evidence was full of contradictions. 6 On the fourth ground of appeal Mr. Ndumbaro argued that the trial Court erred in law and fact in deciding in favour of the Respondent herein while he didn't prove his claim to the required standard. He averred that it is a legal principle that he who alleges must prove and he backed up his argument by quoting section 110 (1) & (2) of the Evidence Act (Cap. 6, R. E. 2019). Also, he made reference to the case of Alexander Aver Exavery v. Alistidia Godfrey, (Civil Appeal No. 37 of 2020 and Baralia Karangirangi v. Asteria Nyalwambwa, Civil Appeal No. 237 of 2017. In the later, case the Court of Appeal of Tanzania stated 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 a balance ofprobabilities" He added that the Respondent was bound to prove his claims to the required standards but he failed and the trial Tribunal failed in law and fact by deciding in favour of the Respondent. On the six ground of appeal Mr. Ndumbaro contended that the boundaries which were stated by the Respondent during trial was different to those found at the locus in quo when the trial Tribunal visited the disputed land. He added that those discrepancies were to be considered by the trial Tribunal but it failed and reached into an 7 erroneous decision. Mr. Ndumbaro also, averred that the Chairman of the Trial Tribunal erred in law by departing from the opinion of the assessors without giving reasons. Lastly, he prayed for this Court to re­ evaluate the evidence of the Trial Court and consider the evidence of each party during trial, It is important to note that the Appellants advocate opted not to argue on the third ground of appeal. on the other hand, the Respondents learned advocate, Mr. Bernard Mapunda responding to the submissions made by the Appellants' advocate argued that there is no contradiction between the testimonies of PW1 and PW2. He argued that PW1 in his testimonies described the boundaries in four directions and the people bordering the disputed land and PW2 stated that Teodori Lupembe was on the Western side and another person is on the Eastern side, he named only two directions. On the contradictions on the year of death of the Respondent's father he averred that the contradiction is very minor and it does not go to the root of the case. He added that the contradictions were due to the passage of time and human recollections are not infallible and it is normal for people to make mistake in testimonies. He added that PW3 was not a close relative of the Respondent's father that 8 is why he failed to remember an exactly year of death. To cement his arguments, he cited with approval the case of Emmanuel Lyabonga v. The Republic, Criminal Appeal No. 257 of 2019, Court of Appeal of Tanzania sitting at Iringa (unreported) and in Evarist Kachembeo and Others v. Republic (1978) LRT No. 70. On the 2nd and 5th grounds of appeal Mr. Bernard Mapunda argued that the trial Tribunal clearly evaluated the evidence given by each party and it reached into a correct decision that the land is a property of the Respondent and the Appellants are trespassers. He averred that the Respondent herein proved his claims to the required standard of proving on the balance of probabilities as it was held in Hemed Said v. Mohamed Mbilu (1984) T.L.R 113. He further averred that the Appellant failed to call a key witness one Benedict Lupembe who was mentioned to be one of their neighbour in the disputed land. He added that failure to call a key witness implies that if he would be called, he would have adduced evidence contrary to the wishes of the party. On the issue of mentioning the boundaries of the disputed land, the Respondent's advocate stated that the Respondent in his testimony clearly stated the boundaries of the disputed land and when the trial Tribunal visited the locus in quo the boundaries were clearly described. 9 He averred that it was the Appellants herein who failed to describe the boundaries and even their witness, one Joseph Chale who was called by the Appellants, told the trial Tribunal that the land is the property of the Respondent. In that regard he averred that the trial Tribunal correctly reached into its decision. On the six ground of appeal Mr. Bernard Mapunda submitted that the aim of visiting the locus in quo is to clear doubts arising from the conflicting evidence. To buttress his argument, he cited the case of Francis Petro v. The Registered Trustees of ELCT NW Diocese, Misc. Land Application No. 142 of 2021, and added that the trial Tribunal in its decision didn't use only the evidence gathered at the locus in quo. Lastly, Mr. Bernard Mapunda argued that the Chairman of the trial Tribunal departed from the opinion of the assessors without assigning reason and that is not fatal. He made reference to the case of Tanzania Electricity Supply Company Ltd v. Hellen Byera Nestory, Land Case No. 113 of 2020. Finally, he prayed for this Court to remit the case records to the trial Tribunal for taking additional evidence by visiting the locus in quo and make proper recording of the location of the disputed land, boundaries and bordered neighbours and the physical features found in the disputes land. Reference was made to the case of Avit io Thadeus Massawe v. Isidori Assenga, Civil Appeal No. 6 of 2017 (Court of Appeal of Tanzania) and Akosile v. Adeye (2011) 17 NWLR, p. 263. The Respondent's learned counsel opted not to argue on the third ground of appeal since there was no submission in chief made by the Appellants' advocate. It is worth considering that after perusal of the original case records of the trial Tribunal, I find that the Respondent in his evidence testified that; in the year 1978, he went to another place for green pasture and he returned in the year 2018. Thus, for a period of thirty solid years he left the disputed land. According to his evidence, the land which he left was a bare land measuring one and a quarter (11A) acre. Upon returning back in the year 2018 he was surprised to find that the Appellant had already built a house on the disputed land. Actually, in 2019 he filed a land case before the trial tribunal claiming ownership over the disputed land, which was held in favour of the Respondent. As much as I am concerned, I find there are two main issues in this matter. The first issue is who was the legal owner of the disputed land. It is important to bear in mind that the Appellants had been living in the disputed land for more than thirty years without any disturbances ii and they had built their houses in which they are living. The Respondent filed the application claiming to be declared the lawful owner of the disputed land. Basically, from the evidence given by both parties, I find the Respondent has failed to prove how he owned the disputed land. He has no evidence to prove to whom he left it in the year 1978 up to 2018. Taking into consideration of the available evidence, the allegations that the Respondent left his land to Teodori Lupembe remain unproved. The second issue is on the matter of time limitation in filing the claim on ownership of the disputed land. I am of the view that, the Respondent’s evidence could be constrained by the principle of adverse possession. The Respondent left his land measuring one and a quarter (IV4) acre for a period of thirty years (30) while the Appellant was in possession of the piece of land. As a matter of fact, the principle of adverse possession presumes that when someone owns the land for twelve years without interference, it is believed to be owner of that land. In the case of Pravin-Chandra Girdharlil Chanda v. Murdin Yusuf Ally, Land Case No. 94 of 2013 (unreported) and Yusuph Same and Others v. Hadija Yusuph (1996) TLR 347, it was held that: .12 "The /imitation period for recovery of land when possessed by someone for more than twelve years, the other party cannot claim on it as it will be time-barred." In that regard, this proves that the Respondent slept over his rights and he had no claims over the disputed land. Thus, the Appellants are the one who has the rights on the suit land. According to the Law of Limitation Act the Appellants are the true owners of the disputed land as they acquired ownership on account of the doctrine of adverse possession, since they have been occupying the iand for a period of more than thirty years, from the year 1978 to the year 2019 when the Respondent filed land case claiming to be the lawful owner of that land. Automatically that gives right to the Appellants. The Court of Appeal of Tanzania sitting at Moshi in the case of Registered Trustees of Holy Spirit Sisters Tanzania v. January Kamili Shayo & 136 Others, Civil Appeal No. 193 of 2016, stated that, a person seeking to acquire title on land by adverse possession had to cumulatively prove the following: (a) That, there had been absence of possession of the true owner through abandonment. (b) That, the adverse possessor had been in actual possession of the piece of land. 13 (c) That, adverse possessor had no colour of right to be there other than his entry and occupation. (d) That, the adverse possessor had openly and without consent of the true owner done act which were inconsistent with the enjoyment of the true owner of the land for the purposes for which he intended to use it. (e) That, there was sufficient animus to dispossess and animo possidendi. (f) That, the statutory period, in this case twelve years had expired. (g) That, had no interruption to the adverse possession through the aforesaid statutory period and; (h) That, the nature of the property was such that, in the right to the foregoing adverse possession would result. Notably, in the case at hand the Appellants have been living in the disputed land for more than thirty (30) years, from 1978 to 2019 when the Respondent filed Land Application No. 8 of 2019 before the trial Tribunal. Bearing in mind item (f) of the above cited case, the statutory period of twelve years has been expired. The Respondent cannot claim any right over the disputed land. Also, he has no evidence to prove that he once owned the disputed land and left it in the hands of Teodori Lupembe. Without hesitation, l am inclined to adopt the principles laid in the case of Registered Trustees of Holy Spirit Sisters Tanzania v. January Karnin Shayo & 136 Others (supra), as it clearly illustrates 14 the situation in the present appeal and state that the Appellants are the legitimate owners of the disputed land. From the foregoing, the Appellant is declared to be the lawful owner of the suit land and the Respondent has no claims over it. The appeal is allowed and the judgement and decree of the rial Tribunal are quashed and set aside. The Respondent is ordered to pay costs of this appeal. It is so ordered. DATED and DELIVERED at Songea this 28th day of July, 2023. 28/07/2023 COURT: Judgment delivered on this 28th day of July, 2023 in the presence of the Appellants and the Respondent. Right of appeal is explained. U. E. MADEHA JUDGE 28/07/2023 15