LAND APPEAL NO

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA LAND APPEAL NO. 6811 OF 2024 (Originating from the decision of the District Land and Housing Tribunal forRuangwa at Ruangwa in Land Application No. 06 of2022) HASSAN ISSA MWALUKA.............. .APPELLANT VERSUS AWESA ABDALLAH CHITEI............................... .RESPONDENT JUDGMENT 2* September2024 & 23d 0ctober2024. DING’OHI, J. The members of the same family in this appeal are in dispute over the ownership of the parcel of land situated at Matambale village within Ruangwa district. It was the present respondent, Awesa Abdallah Chitei, through her attorney, SAIDI SALUMU KAPANI, who initiated the land dispute subject to this appeal, in the trial tribunal, over the ownership of the aforementioned land. According to the respondent, the land in dispute was acquired by her parents in 1931. In 1982 Mzee ABDALLAH MANGO CHITEI, the father of the respondent died followed by his wife, SHERIA BONAU, the mother of the Page 1 of 9 respondent, who died in 1988. After both parents were laid to rest, the respondent the sole surviving chiid automatically became the owner of the properties left by her parents, including the suit land. The suit land by then had 25 cashew nut trees, 32 banana trees, 4 Guava trees, and cemeteries. As said the respondent inherited the land which she started to use peacefully from 1988. It is alleged in 2018 the appellant invaded the land and it is when the dispute erupted. In the trial tribunal, the respondent brought two witnesses who were neighbors. Those witnesses are Sabiam Mkali and Abdallah Omary Makombola who testified as the SM2 and the SM3, respectively. In their respective evidence, they told the tribunal that they knew the respondent's father and even after his death, they were aware that the land in dispute was inherited by the respondent. Appearing confident in what he was saying, SM3 went further by mentioning all the neighbors around the land in dispute. For example, SM3 explained that on one side his shamba land is bordered by the respondent's while on the other side, there is the place of Abdallah Mkapanigi and SM2. On the other side, HASSANI ISSA MALUKA, the legal representative of the late ISSA ABDALLAH MALUKA, his father, told the trial tribunal that in Page 2 of 9 1954, his father, and the respondent's father ABDALLAH CHITH who is his uncle, discussed on the matters of life. After the discussion, they resolved that they had to shift to another place called Mninda for cultivation. The appellant contended further that his father took the land from the west to the east while the respondent's father took it from the east to the south. According to the appellant, the two brothers worked as such until 1959 when the appellant’s father died. After his death, the land was left to his children including him. They peacefully used the land up to 2018 when the respondent claimed that it was hers. In an attempt to shine his evidence, the appellant was supported by Jafari Hamza Ally (SU2) a member of his family who testified that the disputed area belonged to the appellant. He elaborated that since 1988 when he was studying at Matambalale primary school, he used to go to that place believing that the land was his family property. At the end of the day, the trial tribunal believed the respondent's side. It declared the respondent the rightful owner of the land in dispute and that the appellant was a trespasser. The trial tribunal went further ordering the appellant to give immediate vacant possession of the land to the respondent. Page 3 of 9 That decision by the trial tribunal went against the expectation of the appellant who opted to come before this court by way of the present appeal. In his memorandum of appeal, the appellant raised the following grounds for his dissatisfaction; 1. That, the District Land and Housing Tribunal for Ruangwa erred in law, and misdirected itself by not understanding clearly the boundaries of the land in dispute and ignoring the other essential evidences. 2. That, the District Land and Housing Tribunal for Ruangwa erred in fact and law in deciding on respondent's favor basing on weak evidences while there is no evidence showing that the respondent had been in occupation of the disputed land before the Appellant 3. That the District Land and Housing Tribunal for Ruangwa erred in fact and law in delivering decision on the respondent's favor while the appellant is the one who developed the disputed land by planting crops. At the hearing of the appeal, both parties appeared in person, unrepresented. They both agreed that the appeal be orally disposed of. Page 4 of 9 When the appellant was given a chance to support his grounds of appeal he just mentioned in numbers the parts that he thought the trial tribunal did not treat him fairly and some of those parts were not even in his grounds of appeal. I would shortlist those parts as follows; First, the learned trial tribunal chairman refused to visit locus in quo; Second, the learned trial tribunal chairman refused to consider his prayer that the proceedings of the Ward Tribunal be called for a reference; Third, the decision of the trial tribunal was wrong when it found that there is a cemetery at his land which is not true; Fourth, he was compelled to stand in the case with a person whom he did not know and who had no authority to stand as a party. Fifth, the chairman allowed the witnesses who were not residents of the area to adduce the evidence,, and Sixth, the learned chairman refused to accept the certificate of title that he was given by the village to prove his customary right of occupancy. He further added that he has been on the land since 2008 after her mother passed away. That since then he has been using the land with her sister since 2006. From all that period they have never filed a suit against him. Page 5 of9 In response, the respondent argued that what the appellant has submitted is not in line with his petition of appeal. He added that the disputed land was founded by the respondent's father sometime in 1931 thus what the appellant submitted was not true. The respondent further argued that indeed there is a cemetery on the farm together with 25 cashew trees, 32 banana trees, and four guava trees. He prayed this court to dismiss the appeal. In a brief rejoinder, the appellant submitted that those plants that the respondent talking about were planted by him. I have given full consideration to the submissions from both parties. I will proceed by considering the grounds of appeal that are in the petition of appeal as quoted herein above. Having scrutinized the grounds that exist in the petition of appeal, I think the relevant issue that needs to be discussed in detail by this court is whether the trial tribunal was justified in finding that the appellant failed to prove the suit to the required standard. It is a cardinal principle of the law that, since the dispute was in a civil case, the standard of proof is of a balance of probabilities which simply Page 6 of9 means that the Court will sustain such evidence which is more credible than the other on a particular fact to be proved. See; National Housing Corporation vs Deepan Premji Dusara and 2 Others (Civil Appeal No. 222 of 2022) [2024] TZCA 937, and Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453. In determining the instant appeal, I will be straightforward. I had ample time to read the proceedings and judgment of the trial tribunal’s ups and downs. As I delineated herein above, the burden of proof in a civil case is always measured like a weighing scale in a shop, in the sense that the one whose evidence is heavier than that of his counterpart even by one-third, will be entitled to the victory. In this case at hand, the respondent managed to call SM2 and SM3 who are all neighbors to the disputed land. These witnesses explained in detail how they recognized the respondent's father as the owner of the area before and even after he passed away. The appellant did not strongly dispute their respective evidence on how the suit land was acquired by the father of the respondent. I would find as done by the trial tribunal that the evidence by the respondents side was heavy. Page 7 of9 From the totality of the evidence given before the trial tribunal, It is very doubtful as to the claim of the suit land to the appellant. The following are the main reasons for my stance; When he was cross-examined by the respondent, the appellant was recorded saying: 'Wapakani warigu wameuza mashamba yao na nakala za mauziano ninazo' Unfortunately, the appellant did not tender the said sale agreements (nakaia za mauziano), as exhibits, which he said he had. The appellant did not also call any of his neighbors to the disputed land as his witness. The SU2 whom he called could not assist him because despite being his relative who might have an interest to serve he did not assist the appellant in evidence on how the appellant acquired the suit land and if he currently saw the appellant working In the suit land. Principally, the appellant failed to prove the suit in the trial tribunal as required by the law. Since there is no proof of the ownership of the disputed land from the appellant, this court finds no justifiable reasons to disturb the findings of facts of the trial tribunal. The decision of the District Land and Housing Page 8 of9 Tribunal for Ruangwa in Land Application No. 06 of 2022 is, therefore, upheld. The appeal is accordingly dismissed with no order as to costs. It is ordered so. DATED at MTWARA this 23rd day of October 2024. COURT: The Judgment delivered on the 23rd day of October 2024 in the presence of the appellant and respondent who appeared in person. f . DING'OHI JUDGE 23/10/2024 Page 9 of 9