HENERY YOHANA VRS MWANAHAMISI PETRO

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND APPEAL NO 10429 OF 2024 (Arising from decision the District Land and Housing Tribunal for Iramba at Iramba in Land Application No 31 of 2023) BETWEEN HENERY YOHANA ………………………………… APPELLANT VERSUS MWANAHAMISI PETRO…………………….. RESPONDENT JUDGMENT Date of last Order: 12/11/ 2024 Date of the Judgment: 12/12/ 2024 LONGOPA, J.: The appellant and respondent are close relative whereas the appellant is the son of the respondent. The respondent sued the appellant for trespassing into her parcel of land estimated 18 acres located at Kidigida Village, Mwanga Ward in Mkalama District within the Singida Region. The source of ownership of the land by the respondent is traceable to the clearing of land in 1960s while the appellant claimed to have cleared the land in 1990s. 1|Page The trial Tribunal heard a total of four (4) witnesses for the respondent’s herein and three (3) witnesses for the appellant. On 6th December 2023, the trial Tribunal declared the respondent to be the lawful owner of the disputed piece of land and ordered permanent restraint against the appellant from interfering with the land in question. The appellant was aggrieved with the District Land and Housing Tribunal for Iramba at Iramba in Land Application No 31 of 2023, thus appeals against the whole decision on the following grounds:- 1. That, trial Court erred in Law and in fact by giving decision on favor of the respondent without considering the weak evidence and contradictory adduced by the Respondent and his witnesses. 2. That the Trial Court erred in Law and in fact for failure to observe the strong evidence adduced by the appellant. 3. That the trial Court erred in law and fact by giving decision without considering the opinion of assessors. 2|Page The appellant humbly prayed before this Honorable Court to allow this appeal and set aside and quash the decision of the District Court and uphold the decision of the Trial Court. On 12th November 2024, the parties appeared before this Court on viva voce hearing of the appeal. The parties appeared in person fending for oneself. The appellant took up to argue the appeal and he stated that with regard to the first ground, the District Land and Housing Tribunal erred to decide the matter without assistance of the assessors. They were not in attendance from the first date when the case commenced. On the second aspect, it was submitted that the appellant was required to bring the witnesses who knew the boundaries of the disputed land. There were two of them namely one was Elisha Mpanda and the former Ward Executive Secretary. The first witness informed the Tribunal that the appellant is owner as they 1st witness and the appellant we are neighbours on the land. The second witness that stated that owners are Samwel, Elisha Mpanda and Saimoni Leonadi at the disputed area. This 3|Page witness is the one who resolved the dispute in 1995 regarding the same land. According to the appellant, there was contradictory evidence on part of the respondent. It was argued that the District Land and Housing Tribunal stated that boundary of the land bordered one Samwel but the ownership was not proved by the appellant. It was reiterated that the respondent brought three (3) witnesses. One Samson stated that the land was taken from the appellant in 1995. This witness stated that he was a village Chairman and gave the land to respondent who was the owner. Further, it was argued that the respondent stated that Samwel is still there. The other witness stated that on eastern the land borders one Mzee Ally. These witnesses were contradicting each other. It was the appellant’s prayer for the Court to allow this appeal as the grounds of appeal are solid. On the other hand, the respondent stated to have called witnesses before the District Land and Housing Tribunal including one Samson who stated to have been the Chairman of that village. He informed the Tribunal that the land belonged to the respondent as the land was once leased to the government as ranch and then it was returned back to respondent 4|Page According to the respondent, he got the land since 1960s where she and her husband cleared the virgin forest land. This source of ownership was supported and corroborated by respondent’s witnesses who were one Samson the former Village Chairman and one Msafiri who testified that the respondent had cleared the virgin land. He stated to have participated in the clearance of the virgin forest land for the respondent. It was argued that the appellant's witnesses were not as strong as the respondent’s witnesses. The appellant’s witnesses had not stated how the appellant acquired land in question. It was argued that that land does not belong to the appellant. It is the respondent’s land and the witnesses so proved as a result the District Land and Housing Tribunal pronounced me as the rightful owner of the land in question. In respect of the assessors, the respondent reiterated that assessors were present at the beginning of the case but later on they were not there on the date set for the decision due to different reasons that are on record. In very short rejoinder, the appellant reiterated that the witness who informed the Tribunal how the appellant got the land was one Elisha who saw the appellant clearing the forest land. 5|Page Having heard the rival submissions of the parties, I have dispassionately considered the grounds of appeal in light of available records to satisfy on the validity of the grounds. The analysis shall begin with the ground challenging participation of the assessors in the proceedings before the trial Tribunal. The role of assessors is articulated in a plethora of judicial decisions. For instance, in the case of Sebastian Kudike vs Mamlaka Ya Maji Safi & Maji Taka (Civil Appeal No. 274 of 2018) [2022] TZCA 38 (17 February 2022) (TANZLII), at pages 4-6, the Court of Appeal stated that: We begin with the position of the law which governs the adjudication of land disputes before the DLHT. In terms of section 23 (1) of the Land Disputes Courts Act, the DLHT shall be constituted by the Chairman and assessors and their role is articulated under subsection (2) whereby after the trial is concluded, they are mandatorily required to give out their opinions before the Chairman reaches the judgment. It is glaring that the cited Regulation enjoins the Chairman, before making a judgment, to require every 6|Page assessor present at the conclusion of the trial to give his opinions in writing which may be in Kiswahili language. However, what transpired in the case at hand is that, while the hearing was concluded on 30/9/2009 when the chairman pronounced that judgment would be delivered on 11/11/2009 which was later handed down on 21/1/2010, there is no indication if the Chairman did require the assessors to give their opinions in writing as per the dictates of regulation 19 (2). That apart, there is no clue if the assessors were invited to read their opinions so that the parties could hear them. In the premises, as we said in the case of Ameir Mbarak and Azania Bank Corp Ltd vs Edgar Kahwili (supra), it is highly unsafe to assume the opinions of the assessors which is not on the record regardless of the chairman's acknowledgement in the Judgment. Thus, it is our considered view that, in the event the assessors did not give opinions for consideration in composing the judgment of the DLHT, this is a fatal irregularity. 7|Page In the case of Wambura Mwikwabe vs Juma Nyamhanga (Civil Appeal No. 158 of 2022) [2024] TZCA 561 (15 July 2024) (TANZLII), at page 6-8, the Court observed that: …involvement of assessors in the DLHT's proceedings is a mandatory legal requirement provided under section 23 and 24 of Cap. 216 and regulation 19 (1) and (2) of the Regulations. From the wordings of the provisions above, we have underscored that; one, the assessors must give their opinions before the Chairman reaches the judgment and he is legally bound to take into account the opinions of the assessors in the judgment. Two, the Chairman is required to assign reasons for departure in case he departs from the assessors' opinions. However, in circumstances where the trial commences with presence od assessors but at some points one or both of the assessors are unable to proceed with the hearing of the matter, the trial Tribunal is empowered to proceed without the assessors. Importantly, the Tribunal should record the 8|Page reasons for the absence of the assessors who attended the beginning of the trial. It is on record that 19/7/ 2023 when hearing commenced, the Tribunal Chairman sat with two assessors namely Mr. Rukumbwe and Mrs. Mbazi. On page 19 of proceedings, the Tribunal informed the parties that Mr. Omary Hassan Rukumbwe, one of assessors passed away on 22/8/ 2023 and ordered that the hearing would proceed with the aid of the remaining assessor. Also, on 27/9/ 2023 as reflected on page 20 of the proceedings, the Tribunal informed the parties that the remaining assessor, Mrs. Agnes Kitundu Mbazi was ill and hospitalized in Dar es Salaam for indefinite period of time. Thus, by virtue of the provisions of section 23(3) of the Land Disputes Courts Act, Cap 216 ordered the hearing to proceed without the aid of assessors. It is on those reasons, the trial Tribunal Chairman categorically on pages 5 and 6 of the Judgment did elucidate the ground for the decision of the Tribunal having no benefit of wise assessors’ opinions. 9|Page This court is fully satisfied that the trial Tribunal acted well within the confines of the law. The Chairman recorded the reasons for non- attendance of each of the assessors who were there at commencement of the trial and reiterated the same reasons in the judgment. This was a proper cause of action to take where the assessors are impeded by justifiable cause from attending the hearing of the case before the District Land and Housing Tribunal. The principle is illustrative in the case of Emmanuel A. Majebele (Administrator of the Estate of the Late Ester Kabeno Karume) vs Antony Francis Sapila & Another (Land Appeal 292 of 2021) [2022] TZHCLandD 12371 (5 October 2022) (TANZLII), at page 6, the High Court observed that: Section 23(3) of the LCDA provides a "leeway" in case one or both assessors cannot proceed with the trial. That the Chairman can proceed, but he should record the reason for the inability of the assessor(s) to proceed to qualify him to invoke Section 23 (3) of the LCDA. 10 | P a g e The Court of Appeal of Tanzania has guided on the way forward in the circumstances on this nature. In B.R. Shindika t/a Stella Secondary School vs Kihonda Pitsa Makaroni Industries Ltd (Civil Appeal No. 128 of 2017) [2021] TZCA 258 (16 June 2021) (TANZLII), at pages 11-12, the Court of Appeal guided that: It is plain, in the instant case, that the requirements under Rule 5F of the High Court Registries (Amendment) Rules 2001 were not complied with. Since the trial began with Kimolo and Mtumba as assessors when PW1 testified, then in terms of the law applicable at that time, the trial court was bound to proceed with them till finalization of the case and in the event either of them was unable to attend court, the trial court was obligated to proceed with the remaining assessor. And, in the event both assessors could not turn up, obviously the trial judge was bound to proceed alone to the conclusion of the case instead of sitting with a new set of assessors as it happened in this case. 11 | P a g e The third ground of appeal is destitute of merits as there was nothing on party of the trial Tribunal Chairman that had infringed the law governing proceedings before the DLHT. I shall therefore proceed to overrule the third ground of appeal for being unmerited. On proof of the case which form basis of the first and second grounds of appeal, two aspects are important. One, it is the duty of the person who desires the decision of the Court in his favour to prove the case. Two, the standard of proof is on preponderance of probability. For instance, in the case of African Banking Corporation T. Ltd vs T-Better Holdings Co. Ltd (Civil Appeal No. 207 of 2017) [2024] TZCA 165 (6 March 2024) (TANZLII), at pages 10-11, the Court stated that: Our starting point is on the law regarding burden of proof which characterises the discussion in this ground. The law under section 110(1) of the Evidence Act is that he who alleges must prove his allegation to succeed in a suit. It is equally the law that, unlike in criminal trials, the burden of proof in civil cases is not static. This rule is long settled as 12 | P a g e can be seen from the decision of the defunct Court of Appeal for East Africa in Henry Hidaya Ilanga v. Manyama Manyoka [1961] EA 705 referred in Co- operative and Rural Development Bank (1966) Ltd v. M/s Desai and Company Limited, Civil Appeal No. 51 of 1995 (unreported) and Bright Technical Systems & General Supplies Limited v. Institute of Finance Management, (Civil Appeal No. 12 of 2020) [2023] TZCA 17284 (30 May 2023, TANZLII), amongst others. It is also trite that, a party who has the burden of proof must discharge his burden on balance of probabilities regardless of the weakness in the case of his opponent. For this proposition, the Court's decision in Paulina Samson Ndawavya v. Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 and Charles Christopher Humphrey Richard Kombe t/a Humphrey Building Materials v. Kinondoni Municipal Council, Civil Appeal No. 125 of 2016 (both unreported) amongst others are instructive on this principle. 13 | P a g e It is settled principle that a party with heavier evidence than the other party deserves the decision of the Court. For instance, in the case of Leonard Dominic Rubuye t/a Rubuye Agrochemical Supplies vs Yara Tanzania Limited (Civil Appeal No. 219 of 2018) [2022] TZCA 419 (13 July 2022) (TANZLII), at page 22, the Court of Appeal lucidly stated that: We begin by acknowledging the well settled position that the onus of proving existence of any fact lies on the party asserting its existence and in civil cases proof is at balance of probabilities. That is in accordance with the provisions of sections 110 and 111 of the Law of Evidence Act [CAP 6 R. E. 2019]. See the case of Attorney General and two Others v Eligi Edward Massawe and Others, Civil Appeal No. 86 of 2002 (unreported). Of course, this is construed to mean that the one with heavier or stronger evidence will have the case decided in his favour. 14 | P a g e It is noted that the main issue in the land application was who is the rightful owner of the disputed land between the appellant and respondent. As each of the parties alleged to have been the owner of the disputed land, it was incumbent upon each of the parties to tender evidence to prove mode of acquisition of the land in question. The evidence of the instant respondent revealed through evidence of PW 1 that she acquired the land by clearing the virgin land with her husband in 1961 for cultivation and livestock keeping and at certain point in time such land was borrowed by government to establish a ranch and upon the termination of the ranch the land was returned to respective previous owners of such land. At certain point in time, PW 1 stated to have given share of part of land to her children including the appellant. This evidence was corroborated by PW 2 who stated that in 1961 when he was aged 7 years old his parents moved to Mwanga Village and saw them clearing land and they stated using the land until now. It was PW 2 that the respondent distributed part of the land to her children including the appellant sometimes in 2005. 15 | P a g e PW 3 stated that in 1975 there was a cattle ranch for the village where the land belonging to the respondent, Mwanahamisi Petro was borrowed together with lands from Seif Mpanda, Yusuph Amri and Ally Omari until 1995 where the project ended. The suit land was returned to the original owners in 1996. PW 4 stated that he was present in 1961 when the respondent and her husband cleared the land for cultivation and livestock keeping as he did assist in that process of clearing the land. The land was virgin forest land prior to clearing for the same to be arable. It was PW 4 that the disputed land belongs to the respondent herein. The totality of this evidence indicates that: one, the land was cleared in 1961 way back before the appellant was born in 1982. Two, the respondent and her husband are the original owners of the land since its clearance in 1961. Three, sometimes between 1975 to 1995 the land was borrowed by the government for a cattle rank project and returned back to original owners in 1996. Four, PW 1, PW 2 and PW 4 were present and participated in clearance of land belonging to the respondent. 16 | P a g e On the other hand, the appellant’s evidence revealed as follows: DW 1 state to have cleared a virgin land in 1995 in cooperation with Samwel Mpanda, Simon Leonard and Elisha Mpanda and they were arrested and they were ordered by District Commissioner to be given 10 acres. DW 1 stated that he owned 15 acres, sold 2 acres and now is remaining with 13 acres. DW 1 stated that he does not size of land of each of the persons that he cleared the same jointly. DW 2 stated that between 1993 and 1999 he was the Ward Executive Office of Mwanga Ward and sometimes in 1998 there was trespass to the Village Cattle ranch where the District Commissioner directed that trespassers should be given 10 acres alternative land but until 1999 when he left none had been given any land. DW 3 testified that he was arrested with DW 1 for cultivating the Village Cattle ranch and to resolve the dispute the District Commissioner ordered the trespassers to be given portion of land to cultivate. In summary, the appellant’s evidence indicates that: one, he stated using the land sometimes in 1990s as DW 1 stated it to be 1995 while DW 2 stated to be in 1998. Two, the size of land allocated to appellant to 17 | P a g e resolve the dispute was 10 acres but he owned 15 acres before selling 2 acres to remain with 13 acres. Three, appellant does not know the size of land of all the neighbours who the cleared the land jointly. Four, the person who acquired the land at the same time with the appellant does not state the size of land given to either DW 1 or DW 3. With that evidence on record, it is clear that where the land disputed is the located at the same location evidence of the respondent is more convincing than that of the appellant. It was the appellant’s evidence that they were only given 10 acres of land to resolve trespass to land in 1995 but he stated that he was recently owning 15 acres sold 2 acres and is remaining with 13 acres. There is nothing on record that explains how appellant got extra 5 acres from 10 acres that he stated to have been given after arrest for trespass to Village Cattle ranch. This evidence is not corroborated by any of the appellant’s witness. In fact the evidence of DW 2 and DW 3 discredits the testimony of the DW 1. It is on record that DW 3 testified regarding him being owner of the land in nearby area to the disputed land. He did not testify the size of land given to the appellant nor how the appellant got extra acreages of land. In 18 | P a g e fact DW 2 stated categorically that incident of trespass happened in 1998 and there was no land given to the appellant until 1999 when he left that Ward. Given the totality of evidence on record, it is settled view of this Court that respondent managed to prove the case against the appellant to the required standard. The evidence of the respondent to instant appeal is so strong and heavier compared to that of the appellant. It is the law in this jurisdiction that a party with heavier evidence should be entitled to judgment of the case. This was illustrated in the case of Nuru Finance & Business Services Co. Ltd vs Benjamin Adamson Masuba (Civil Appeal No. 284 of 2020) [2024] TZCA 169 (8 March 2024) (TANZLII), at pages 11-12, where the Court of Appeal stated that: It is a cherished principle of law that, generally, in civil cases, the burden of proof lies on the party who alleges anything in his favour. In that regard the Court is required to sustain such evidence which is more credible than the other on a particular fact to be proved. See: Agatha Mshote v. Edson Emmanuel and 10 Others, Civil 19 | P a g e Appeal No. 121 of 2019 (unreported) and Stanslaus Rugaba Kasusura and Another v. Phares Kabuye [1982] T.L.R. 338. In the context of this appeal, I entirely concur with the analysis of the trial Tribunal Chairman which on pages 6-8 of the Judgment where he categorically explained the evidence of both the appellant and respondent to arrive at the decision that respondent’s evidence was strong and heavier compared to that of the appellant. In the final analysis, it is concluded that the respondent’s evidence was consistent, lucid and strong to warrant the judgment and decree in favour of the respondent herein. At the same time, the appellant’s evidence was weak, contradictory and inconsistent to establish the ownership of the land. Thus, it was correct and in order for trial District Land and Housing Tribunal for Iramba at Kiomboi to enter judgment and decree in favour of the respondent herein. I find no merits in the 1st and 2nd grounds of appeal thus I overruled both of the grounds. 20 | P a g e Having found that all the three preferred grounds of appeal were devoid of merits, this appeal shall stand dismissed for lack of merits with costs. It is so ordered. DATED at DODOMA this 12th day of December 2024 E.E. LONGOPA JUDGE 12/12/2024. 21 | P a g e