Halfan Abraham Tanzlii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MOSHI AT MOSHI LAND APPEAL NO. 13503 OF 2024 (Appeal from the Judgment of District of Land Housing Tribunal of Moshi at Moshi dated 30th April, 2024 in Application No 49 of 2023) HALFANI ABRAHAMAN……………………………….….……..APPELLANT VERSUS NIWAIDI SAFIELI MBWAMBO………………...……..…….RESPONDENT JUDGMENT 15th August & 4th September, 2024. A.P.KILIMI, J. The respondent one NIWAIDI SAFIELI MBWAMBO sued the appellant mentioned hereinabove at the District Land and Housing Tribunal of Moshi at Moshi (“DLHT”) for declaration that, he is the lawful owner of the suit land measuring 16 meter by 27 meter located at Stesheni Hamlet, Oria Village, Kahe Magharibi Ward within Moshi District and Region of Kilimanjaro; An order restraining permanently the appellant, his agents, assignees or any other person acting under his instruction from using the suit land; General damages for the loss incurred by the him throughout the pendency of cases before the tribunal and costs of the case. 1 Upon trial, the DLHT declared the respondent as the lawful owner of the suit land, and the appellant was declared a trespasser and ordered to vacate immediately together ordered the costs of the suit to be borne by the appellant. The background of this matter as discerned from the proceeding of the trial tribunal are as follows; the appellant evidenced at trial tribunal that he was given the disputed plot by the village council of Kahe in 1980. He was given the plot with 191 foot long and 46 paces width, he failed to develop the said plot for a long time as his mother was sick. In 1981 he was able to build a tree house but failed to make any developments therein as his mother was still sick. In 1985 he successfully built a frame but the same was destroyed by one Kadima who then built his house in that plot. He then took his complaints against Mr. Kadima to Uchira divisional office. It was then the village Chairman of Kahe at that time one Osiniel Hassan advised him to build his house in the back area of the said plot so as to leave one Kadima alone. The appellant started to prepare bricks so that he can build the house but failed to make any developments at that time. He stated further that it was until the year 2000 where the respondent trespassed to his land and built therein a house foundation, he 2 searched for him consecutively for five (5) years so as to inform him that he had trespassed to his plot with no success. It was until 2021 when the respondent came again and built a house quickly up to the linter level. He reported the matter to the village office where it was resolved with no success. The respondent then filed the case at DLHT. His testimony at the trial tribunal was supported by Idd Jumanne (SU2) who testified that the area was firstly allocated to his sister one Mayasa who was the appellant mother and that she was given the area by the village council of Kahe and later on when his sister failed to develop the said area, the appellant took over the plot and placed materials such as bricks for building purposes. In his part at the trial DLHT, the respondent claimed that the suit property was given to him by his uncle one Osiniel Hassan Mbwambo in 1999 who then passed away. In the year 2000, he started to develop the area by building the house foundation. It was until the year 2021 when he received the letter from the village office that he was to stop with a building process. They took their dispute to the village office for resolution. On 31/11/2021 the village gave its decision that the area belong to him. Later he was called again at the village office and was informed that the said plot belongs to the appellant. He then took the matter to Kahe Ward 3 Tribunal for conciliation where it also failed. He decided to file an application to DLHT At the trial tribunal his testimony was supported by the wife of late Osiniel Hassan Mbwambo one Vaileth Osiniel Mbwambo [SM2]; his neighbours Rahel Kanyinge [Sm3] and Bahati Salehe [SM4]. At the conclusion DLHT decided in favour of the respondent as stated hereinabove. Undeterred with DLHT decision, the appellant knocked the door of this Court challenging that decision and praying the same be quashed and set aside with costs basing on the following grounds of appeal; 1. That the trial Chairman Tribunal of Moshi erred in both fact and law when failed to properly asses, analyze and evaluate the evidence brought before it which led to wrong decision against the appellant. 2. That, the lower Tribunal’s proceedings are tantamount and tainted with illegalities which are incurably fatal on the eyes of the law. 3. That, the lower tribunal failed to properly asses and corroborate the evidence and failed to acknowledge that the appellant had been in occupation of the disputed land and had evidence of development therein When the matter was called for hearing both parties stood themselves without legal representation. The appellant before submitting on his grounds of appeal, he prayed to amend his petition of appeal by specifically praying to add an exhibit which he worried was not considered 4 by the trial tribunal during hearing of his case. The respondent in reply objected the prayer by stating that the trial tribunal considered the evidence and exhibits tendered thus what the appellant was stating was a misconception. After a brief submission from the parties, this court gave its orders that it was not in position to consider or admit new and fresh evidence or exhibits as it was an appellate court save in special circumstances which was not established by the appellant. First, I have considered oral submissions by both appellant and respondent, the evidence adduced at DLHT, my way forward I will not reproduce their submissions on bar but I will refer to them in due course of determining grounds raised when the need arises. Second, I have considered the grounds raised and submissions to support, as the above three grounds were argued generally by the appellant, in my view also I see they are interrelated, and can be answered by one issue which is whether the trial tribunal was correct to decided that the respondent proved his case against the appellant to the balance of probability, thus for that purpose, those grounds will be dealt jointly. 5 Before I proceed with the merit of the above grounds, I am supposed to be guided by the principle that, this court being a first appellate court, is expected to make fresh evaluation of the evidence on record and come up with its conclusion. (See Yustus Aidan vs Republic [2022] TZCA 622 (TANZLII). Looking at impugned decision page 2 the hon. chairman when analysing the evidence of the parties commenced with acknowledging the evidence of the respondent at the trial stated that; ‘Mleta maombi (ambaye ni SM1) aliliambia Baraza hili kwamba, eneo hilo la mgogoro lipo katika kitongoji cha Stesheni, Kijiji cha Oria, Kata ya Kahe,Wilaya ya Moshi na lina ukubw a w a hatua 16 upana na hatua 27 urefu. Akitaja m ipak a ya eneo hilo alisem a kw a upande w a M ashariki lim epakana na R ahel M lay, M agharibi M fereji w a m aji, kusini Bahati na K askazini M w alim u K adim a’ [Emphasis added]. 6 In English is translated as; “The applicant stated that the disputed plot was located at Stesheni area, Oria village, Kahe ward in Moshi District with 16 width paces and 27 paces length. On boundaries he stated that in East the plot was boarded with Rahel Mlay, West boarded with a stream and at North is boarded with Mwalimu Kidima.” From the above excerpt of the impugned decision, it is clear the description of disputed land is very clear, however he said at the trial that, the same was given to him by his uncle Osiniel Hussein Mbwambo. He procured a witness one Vaileth Oseniel Mbwambo (SM2) who testified to be the wife of Osiniel Hussein Mbwambo and further told the tribunal that she was present and witnessed his husband giving the area to the respondent by love and affection as his son on 1999. Another witness supporting the ownership is Bahati Salahe (SM4) who said he knew the said land to be owned by Osiniel Hussein Mbwambo later he was informed it was given to the respondent and he saw the respondent mobilizing building materials and built a foundation. 7 I have considered the above evidence in relation to that of the appellant at the trial; first; the descriptions stated above by the respondent at the trial tribunal proves his application as depicted at item 3 of the document filed at the trial court which provides for location and address of the suit premises; Second; the appellant claimed land seems to be different with the one depicted on the said application document as said above, the appellant’s testimony at the trial tribunal was that the area in dispute was 191 length and 46 width and that the respondent trespassed by 46 paces length and 27 paces width. He claimed that he was also given that plot by Osiniel Hassan Mbwambo. Third, he brought two witnesses Idd Jumanne Semboja (SU2) and Denis Michael Mcharo (SU3), I have considered their evidenced at the trial tribunal on the outset their evidence cannot help the appellant to prove that he acquired the said land in dispute. And this is because SU2 did not mention any transaction on that land with the appellant, instead merely said that the plot belonged to his late sister whereas his other witness SU3 said he had no evidence on the said dispute. Having highlighted the evidence above, it is my considered opinion that, the descriptions of the suit land stated by the appellant neither does 8 tally with the one stated in a document initiating a case at the trial tribunal nor was not testified and evidenced by the appellant’s witnesses at the trial. Therefore, the fact that the appellant said different descriptions which was not claimed by the respondent to my view that is a point of divergence should start. I am aware the land in dispute was un-surveyed one, it is well settled position of the law that, for un-surveyed land, the boundaries and/or permanent features surrounding the land at issue are very important. This was well enshrined in the case of Daniel Ndagala Kanuda(As an administrator of the Estate of the late Mbalu Kushaha Mbaluda) vs. Masaka Meho and 4others Land Appeal No. 26 of 2015, High Court of Tanzania, at Tabora, (Unreported) where the High Court observed that; "However, regarding un surveyed land, specifications of boundaries and or permanent features surrounding the land at issue are very important particulars for the purpose of identifying the land from other pieces of land neighboring it" Next as alluded above is the weight of evidence adduced, the respondent evidence at the trail tribunal was corroborated by SM2 who was 9 the eye witness when her husband transmitted the title of the said land to respondent. It is a trite law that the advantage of positive evidence is that it is the direct testimony of a witness to the fact to be proved who if speaks the truth saw it done. The only question is whether he is entitled to belief. (See Charo Said Kimilu and Another vs The Republic, Criminal Appeal No. 111 of 2015 (unreported) wherein the court quoted the decision in Commonwealth vs. Webster 1850 Vol. 50 MAS 255). I have considered SM2 evidence stated above and that which is available on record, the appellant did not ask SM2 in respect to the said transaction witnessed by SM2, thus, since it is trite law that failure to cross-examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness evidence. I am satisfied that the evidence of SM2 demonstrated what she saw. Thus, her evidence is worth to be believed that he was the witness on the said transaction of giving the respondent the title to that disputed land. Also, as per evidence of the appellant, he said that he noticed that the respondent trespassed to his land on the year 2000. But he did nothing to bring an action against the respondent. In view thereof, I subscribe with the reasoning of the trial tribunal when observed at page 6 of the 10 impugned decision that for the all period from 2000 to 2021 why the appellant did not take any action against the respondent. In that regard I am settled since it was after 12 years, even his right to claim the said plot was vandalised. In upshot, having evaluated the evidence as above afresh, I am settled the evidence on record shows that the respondent’s evidence at the trial was heavier than that of the appellant and proved the ownership of the said land to be of the respondent. It is a trite law the person whose evidence is heavier than that of the other is the one who must win. (See Hemed Said v. Mohamed Mbilu [1984] TLR 113. Therefore, since the evidence of respondent’s part was far heavier and reliable than that of the appellant, it is my finding the issue raised above is answered in affirmative that the respondent at the trial proved his case to the balance of probabilities as envisaged by the law. On the whole, on account of what I have endeavoured to discuss hereinabove, I find no reason to fault the findings of the trial tribunal. Consequently, I find no merit in this appeal and I dismiss in its entirety. In the circumstances I make no order as to costs. It is so ordered. 11 DATED at MOSHI this 4th day of September, 2024. X JUDGE Signed by: A. P. KILIMI Court: Judgment delivered today on 4th day of September, 2024 in the presence of both appellant and respondent. Sgd; A. P. KILIMI JUDGE 4/09/2024 Court: Right of Appeal duly explained. Sgd; A. P. KILIMI JUDGE 4/09/2024 12