Land Appeal No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 26247 OF 2023 (Originating from the Judgment of Hon. Chenya, Chairman in Land Application No. 13 of 2016 before the District Land and Housing Tribunal for Mkuranga District at Mkuranga) IBRAHIM AYOUB MACHINGA (Administrator of the Estate of the late AthumaniBakariMzenga). .............................................. 1st APPELLANT SELEMANI BAKARI MZENGA................... 2nd APPELLANT ABDALLAH SAIDI MATUMBO...................................... 3rd APPELLANT SALUM SAID KAMENYA......................................... ....... 4th APPELLANT MOHAMED TONONDO................................................................................ 5thAPPELLANT SAIDI MKWENGO...................................................................................... 6thAPPELLANT VERSUS MUHARAMI ABDALLA MZENGA (as Administrator of the late Abdallah Mwinshehe Mzenga)................ RESPONDENT JUDGMENT Date of last Order: 02/5/2024 Date ofJudgment: 21/5/2024 A. MSAFIRI, J. This appeal was filed by the herein above six (6) appellants having been aggrieved by the judgment of the District Land and Housing Tribunal for Mkuranga District at Mkuranga (herein trial Tribunal) in Application No. 13 of 2016 which was delivered in 25/8/2023. Jwl h. i They lodged an appeal and filed a Memorandum of Appeal comprised of three grounds of appeal which I reproduce herein as follows; 1. The decision of Hon. R.L Chenya is not supported by evidence on record. 2. The respondent did not prove his case on balance ofprobability. 3. This appeal is not time barred in view of order of Justice Hemed dated 16 November, 2023 in Land Appeal No. 370 of 2023 (Attached). The respondent through her advocate Ms. Nyasebwa, filed a reply to the Memorandum of Appeal within which she raised one preliminary point of objection to the effect that this appeal is time barred. As it is the requirement of the law, the preliminary objection was set to be heard first before proceeding with the main appeal. After hearing of the said preliminary objection, this Court overruled the preliminary objection, held that the appeal was within time and ordered the appeal to be heard on merit. Following that, the appeal was set to be heard on merit by written submissions and the appellants' submissions was drawn and filed by Prof. Abdallah Saffari, learned advocate while the reply submission by the respondent was drawn and filed by Ms. Mary Nyasebwa, learned 2 advocate. I have considered their worthy submissions and I will analyse them as I determine the grounds of appeal. Before determining the grounds of appeal, the brief background of the dispute is apposite. At the trial Tribunal, the respondent Muharami Abdalla Mzenga who was then the applicant, instituted a suit against the now appellants claiming that the appellants have trespassed and took part of his land which he lawfully owns as the administrator of the estate of the late Abdallah Mwinshehe Mzenga, the original owner. The suit land was said to be located at Tundu Village, Bupu Ward, Kisarawe District. He claimed that the appellants have trespassed and took a piece of land of a size of six (6) acres from 40 acres of the disputed land owned by the now respondent. He prayed that the trial Tribunal to declare him as the lawful owner of the suit land, and the appellants be ordered to vacate the suit land. The trial Tribunal granted the application, the act which aggrieved the appellants and they have now filed the instant appeal. Since the third ground of appeal about the time limit of this appeal has already been determined by the court during the hearing of the preliminary objection, I will deal with only two grounds of appeal i.e. the first ground which state that the decision of the trial Chairman was not 3 supported by evidence on record and the second ground is that the respondent did not prove his case on balance of probability. Being the first appellate court, I have a duty to revisit the evidence adduced during the trial and come with my own findings. Since the two grounds of appeal is on the dissatisfaction of the way the trial Chairman has determined the evidence and arrival of his decision, I feel I am bound to go through the evidence on record. During hearing at the trial Tribunal, Muharami Abdallah Mzenga adduced evidence as SMI. He said that the suit land is located at Tundu Village, Bupu Ward, Mkuranga and it has a size of 40 acres. He said that out of 40 acres, the suit land is six acres which have been invaded. That when he went to visit his land in 2014, he found Mohamed Tonondo (5th appellant), Said Mkwego (6th appellant), Salum Kamenya (4th appellant), Abdallah Matumbo (3rd appellant) and Mohamed Ponza have trespassed into the suit land. That when he asked them, they said that they have been sold the disputed land by the family of Bakari Mzenga who are Omari Bakari Mzenga, Seleman Bakari Mzenga (2nd appellant) and Athuman Bakari Mzenga. He said further that he is related to the family of Bakari Mzenga, hence the clan meeting was summoned and the amicable settlement failed. That 4 the matter was taken to Tundu Village Government where the peaceful settlement also failed. That the family of Bakari in that meeting admitted to have sold two (2) pieces of the suit land. That when the Village Government wanted to visit the suit area, the Bakari family refused hence the reconciliation failed again. He produced the copy of a meeting of the disputing families which was admitted in court as exhibit P2. SMI said that after failure of reconciliation, he took the matter to the Ward Tribunal which decided in his favour. The respondents (now appellant) appealed to the District Tribunal which quashed the proceedings of the Ward Tribunal and ordered the suit to start afresh. SM2 Juma Mohamed Mtambo briefly stated to know the suit farm and that it has a size of 40 acres but he said that he has never heard about the dispute over that farm. He said that he used to see the respondent's father (then the applicant) farming on the land. The evidence of SM3 Abdallah Ramadhani Foko was similar to the one of SM2. He said that he knows the respondent they have lived together in 1980's and that he was informed about the trespass by the respondent himself. SM4 Ramadhan Abdallah Mzenga said that he is the brother of the applicant. That the disputed farm was the property of their late father and 5 the applicant was the administrator of the estate of their late father. That the suit farm is in Tundu Village and that some people have invaded that farm and started farming. That the farm has 40 acres size. After closing the plaintiff case, the respondents who are now the appellants started to adduce their evidence. The now 1st appellant Ayubu Machinga Ibrahim gave evidence as SU1. He stated that the applicant has sued them before Ward Tribunal over the suit land claiming that they have invaded and took 2 acres of his land but that was not true. He said that he is objecting exhibit P2 as the proceedings were irregular. About the claims that they have trespassed and took 6 acres out of 40 acres the property of the applicant, SU1 said that the applicant has already sold those 40 acres he claimed to inherit from his late father. He produced documents of sale which were admitted collectively as exhibit D3. He said that those documents shows that the applicant has sold about 33 acres. He said further that there is confusion about the size of the disputed land whether it is 33, 40 or 75. He prayed to the Tribunal to visit the disputed land so that the applicant can show the size of his land. SU2 was Selemani Bakari Mzenga who said that he was the brother of the late Abdallah Mzenga. He said he is surprised that the applicant have sued him over the suit land while he is living there and had lived there since- 6 his late father was alive. He said that he don't know about 40 acres size piece of land which the applicant claims. He said that they have never sold any farm but the applicant is the one selling the farm land of his late father. SU3 Abdallah Saidi Matumbo denied to have trespassed into the land of the applicant but said that he purchased a piece of land from Omar Athumani and Msafiri Mzenga in 2006. He said he don't know the size of the area he purchased. He said he don't know the area which the applicant claims to be invaded. SU4 was Salum Said Kamenya. He said he bought a piece of land from one Laurent Golu and the land is not among the farms of the applicant hence he is surprised that the applicant claims that he has trespassed into his land. He did not produce sale agreement. SU5 was Mohamed Mussa Tonondo. He said that he moved to Tundu Village in 2004 and was given a piece of land of three (3) acres by Selemani Bakari Mzenga for condition that he should develop the farm. That he lived there farming the land until he received summons that the applicant has instituted a suit against him over the suit land. He said that he don't know the disputed land which the applicant claims to own. 7 Said Juma Mkwego testified as SU6. He denied to have trespassed into the applicant's land and said that he got his piece of land of three acres (3) from Mwinyimkundi family. Having gone through the evidence on record, I will determine the grounds of appeal in consideration of the submissions of the parties to the appeal. In his submissions, Prof. Saffari consolidated the two grounds and stated that the judgment of the trial Tribunal contravenes Order XX Rule 4 of the Civil Procedure Code (CPC) which provides that a judgment shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. He said that Hon. Chairman Chenya found that the evidence tendered proved that Abdallah Mwinshehe owned a large area in Tundu Village. The Counsel argued that the trial Chairman was not specific on the size of the said land and just left it for speculation. That although in his evidence the respondent said that he has minutes of the village meeting which shows that his late father had a 40 acres farm, he did not tendered the said minutes. Prof. Saffari argued that in the circumstances, the trial Chairman erred in not conducting the visit to the locus in quo to determine the vital evidence on the existence and the size of the disputed land./t/J L . 8 Second, Prof. Saffari submitted that the trial Chairman relied on exhibit P2 but the said document implicates the "families of the 1st, 2nd and the 3rd respondents" He argued that the matter is not about the families of the 1st,2nd and 3rd appellants but the appellants themselves. Third, the counsel submitted that at page 12 of the judgment, the trial Chairman found that the 4th -8th respondents did not produce the sale agreements of their claimed areas hence they are trespassers. He averred that a contract can either be oral or written as per the Law of Contract, Cap 345. Fourth, the counsel submitted that the trial Chairman did not give adequate and substantive reasons as to why he disregarded the documents admitted as exhibit D3. He concluded that for the above grounds, it is clear that the respondent did not establish his case on balance of probability. He prayed that the appeal be allowed with costs. Ms Nyasebwa, counsel for the respondent replied that the trial Chairman gave out his decision basing on the evidence adduced and that the records reveals that there was no serious contest which was adduced by the appellants. Ms Nyasebwa argued that there was no any document which was tendered by the 4th,5th,6th ,7th and 8th appellants about their ownership 9 while there was confession from the lst,2nd,and 3rd appellants with exhibit P2 which was not challenged by any of the appellants. She said further that the suit land was listed as the property left by the deceased who is the late father of the respondent and the respondent was appointed the administrator of the estate. The counsel argued that the trial Chairman was specific on the size of the suit land and this is reflected at page 6 of the typed judgment. On the claim of the appellants that the respondent did not prove his case on balance of probability, the counsel submitted that the respondents evidence was enough to prove his claims while the appellants failed to tender the document upon which the trial Tribunal would rely upon and that in reaching into decision, the court must be satisfied with fact adduced by both parties. The counsel prayed that the appeal be dismissed with costs. In rejoinder, the counsel for the appellants mostly reiterated his submissions in chief and prayers. During the trial, the main issue was whether the respondents (appellants) have trespassed into the disputed land which is located at Tundu Village, Bupu Ward, Mkuranga District. M- 10 In his application, the then applicant (now respondent) did not state the size of the disputed land nor the extent which the appellants were purportedly trespassed. It is the law that parties are bound by their own pleadings. In his evidence at the trial, the applicant said that when he was following up on the assets and properties of his late father he discovered that his late father has 40 acres farm but 6 acres has been invaded. He tendered a letter of appointment as administrator which was admitted as exhibit Pl. However, the applicant did not produce any proof that his late father was the owner of the purported disputed land. He did not either produce in court proof that the disputed land was listed as among the properties of his deceased father one Abdallah Mzenga. The letter of appointment exhibit Pl does not reveal that the disputed land was the property of Abdallah Mzenga. In cross examination, the applicant claimed that he has a village meeting minutes which proves that his late father has a farm of 40 acres. Unfortunately, this was not produced during the trial before the Tribunal. The evidence of the applicant was supported by the one of SM2. However this also left some unanswered questions. He said he knows the disputed farm. But did not say whether the farm was owned by the applicants ii father but he said that he used to see the said applicant's father farming in there. "Ninavyofahamu shamba hi/o lililimwa na marehemu baba wa mdai" The witness added that he has never heard about the dispute or the trespass. "Kwa wakati wote sijawahi kuona au kusikia mgogoro wa mipaka au hata uvamizi" This witness SM2 claimed he is the neighbour as his farm is near the disputed farm. If he was the neighbour as he claims, then how could he have not known the owner of the farm nor about the boundary dispute or trespass of the farm in dispute? SM3 also claimed that the farm in dispute belong to the applicant's father but again he did not say how he came to know that the disputed farm belong to the applicant's father. "Ninachofahamu ni kwamba shamba la baba yake mdai ndiio ienye mgogoro" The applicant relied on exhibit P2 which shows that the family of Bakari Mzenga admitted to have sold two (2) acres of the farm of the disputed farm. The trial Chairman also heavily relied on this document in his findings and decision. However, reading this exhibit P2 it is clear that i 12 does not relate to the appellants or in other words it does not show that it was the appellants who confessed or admitted to have sold the said two acres piece of land belonging to the family of Abdallah Mzenga. For easy of reference, I will reproduce part of exhibit P2 as follows; "... Wakaamua kufika ofisini kwangu baada ya kuitwa ofisini na kufanya mahojiano, familia ya Bakari Mzenga wamekili kweli wameuza lakini sio eneo tote waliouza ni ekari mbili..." (emphasis added). Here I agree with the submissions of Prof. Saffari, counsel for the appellants that the letter is about the family of Bakari Mzenga and not the appellants. There is no any evidence that the appellants were in attendance on the claimed meetings and were the one who admitted to have sold the disputed farm. In his findings, from page 12 of the judgment, the trial Chairman stated that the evidence of the applicant, with the one of SU2 and SU7 shows that the late Abdallah Mwishehe was the owner of the large area in Tundu Village. However as stated earlier, I find that the applicant failed to establish the ownership of the disputed farm as he did not adduce evidence on how his father owned the disputed farm, no proof on whether the disputed farm was a size of 40 acres as he claims and there 13 was no proof that the appellants have invaded and took over the six acres as claimed. The trial Chairman was satisfied and relied on exhibit P2 that the families of the 1st, 2nd, and 3rd appellants admitted to have sold the disputed farm the property of the late Abdallah. I find that the contents of exhibit P2 did not implicate the 1st, 2nd and 3rd appellants as it was not shown that it was these appellants who actually admitted to sell the said land. It was not shown either who are these called "family of Bakari Mzenga". The trial Chairman at page 12 of his judgment found that the 4th-8th appellants failed to produce their sale agreements of the areas they claimed hence they were the trespassers on the disputed area. I find that first even the applicant who claimed to own the area through the administratorship of his late father, did not prove that ownership. As I have earlier observed, there was no clear evidence on ownership of the applicant on the disputed land and whether the land was listed among the property of the deceased Abdallah Mzenga. The trial Chairman wanted the 4th -8th appellants to produce documentary proof while the applicant failed to do so and the evidence he ever produced of ownership of the disputed farm was oral. I am of the view that in the circumstances, it was wrong to conclude that the appellants have trespassed the 14 disputed land while the applicant did not establish the ownership of the suit land. Second, the trial Chairman could have observed on the confusion of the size of the disputed land and whether what the 4th -8th appellants claimed to possess was the same piece of land which was claimed by the applicant. There was evidence from the appellants particularly Sill, SU2 that there was no 40 acres as the applicants have sold pieces of land to different people and at a different time. The trial Chairman disregarded the contents of exhibit D3 without giving any reason. Exhibit D3 shows that the family of Abdallah Mzenga, led by the respondent Muharami Abdallah have on different times, sold pieces of land from their landed property located in Tundu Village. There was also evidence from SU3, SU4, and SU6 that their areas are totally different from the area claimed by the applicant. They even proposed to the Tribunal to visit the disputed area so that the Tribunal can ascertain the existence and size of the disputed farm. I agree that according to the uncertainty of the existence, ownership, and size of the disputed area this was a case which the trial Tribunal could have visited the disputed land to ascertain the evidence adduced in court about the 15 From the above analysis and reasons, I find that the respondent who was the applicant did not establish on balance of probability that the appellants who were the respondents have trespassed into the claimed disputed farm. In her reply submission, Ms. Nyasebwa counsel for the respondent submitted that if this appeal is allowed, it will be absurd because they do not argue with public policy that litigation must come to an end. With respect, much as I agree that litigation must come to an end, I should remind Ms. Nyasebwa about the constitutional right of a party to appeal upon dissatisfaction of the decision after a litigation. The parties' right to appeal is far from absurdity. Having said so, I allow the appeal with costs. The judgment and decree of the District Land and Housing Tribunal of Mkuranga District in Application No. 13 of 2016 are hereby quashed and set aside, Right of further appeal is expressed. It is so ordered' / JUDGE 21/5/2024 16