Land Appeal No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 27780 of 2023 (Originating from the judgment and decree of the District Land and Housing Tribunal for Mkuranga District at Mkuranga dated 2nd November, 2023, Hon. Mwakibuja, C/P in Maombi No. 21 ya Mwaka 2028) JIJI CO- OPERATIVE SAVINGS AND CREDIT SOCIETY LIMITED .................................... ........................ APPLICANT VERSUS TITUS ARON KAGURUMJULI............................................... RESPONDENT 23/5/2024 & 31/5/2024 JUDGMENT A. MSAFIRI, J The appellant as an applicant, instituted an Application No. 21 of 2018 against the respondent before the District Land and Housing Tribunal for Mkuranga at Mkuranga (herein the trial Tribunal). It was claiming to be the owner of the suit property (a farm) measuring ten (10) acres located at Bigwa Village, Mkuranga District, Pwani Region. It claimed further that sometime in October 2016 the respondent without any justification invaded and trespassed in the said farm and had remained there claiming ownership. The application was heard and after that, the trial Tribunal decided in favour of the respondent the act which aggrieved the applicant who i decided to institute this appeal and lodged six grounds of appeal as follows; - 1. That the trial Chairperson erred in law and fact by holding and declaring the respondent to be the lawful owner of the disputed piece of land on the basis of the principle applicable on who purchased first and or double allocation of the land in dispute while the matter was purely on trespass and not who purchased first and or double allocation of the piece of land in dispute. 2. That the trial Chairperson erred in law and in fact by disregarding the testimonies of the appellant's witness including the testimony of PW3- the seller; who categorically denied to have sold the piece of land in dispute to the Respondent. 3. That the trial Chairperson erred in law and in fact by treating the piece of land in dispute to form part of the land purchased by the respondent from PW3 while there was no evidence to that effect. 4. That the trial Chairperson erred in taw and fact for failure to hold that the disputed piece of land did not form part of the land purchased by the respondent as the boundaries stated in the respondent's purchase documents completely differs from what was found at the scene during a visit of locus in quo. 5. That the trial chairperson erred in law and in fact for failure to declare the appellant as the lawful owner of the disputed piece of land despite her cogent evidence compared to contradictory documentary and oral evidence tendered by the respondent. 6. That generally the trial Chairperson erred in law and fact for failure to evaluate properly the evidence in record and as thus arriving at an erroneous decision. The hearing of the appeal was by way of written submissions in which the appellant was represented by Mr. George Kato Mushumba, learned 2 "Under the priority principle, where there are two or more parties competing over the same interest especially in land each claiming to have title over it, a party who acquired it earlier in point of time will be deemed to have a better or superior interest over the other. See also Colonel Kashimiri vs Nangindar Singh Matharu[1988] TLR163 (CAT)" He further stated that the principle of priority was necessary as the dispute was not over the whole land. On the third and fourth grounds, Mr. Mwarabu stated that the boundaries stipulated in Exhibit Pl were the same with what were recorded during the site visit was resulted by PW3 who did not call witnesses in the subsequent sale, however that it is undisputed that the respondent was the first purchaser of 10 acres. He argued that the sale agreement tendered as Exhibit Pl included imaginary names as nobody came to testify on behalf of the Appellant, therefore that the trial Chairperson properly evaluated the evidence and considered the testimonies from both parties to reach the decision. Regarding to the fifth and sixth grounds, Mr. Mwarabu contended that that the tendered Exhibit DI was not objected and was not denied by PW3 (the seller). He said that the respondent followed the procedures to obtain certificate of occupancy in the respondent's name. He prayed that this appeal be dismissed with costs. On rejoinder Mr. Mushumba reiterated what was submitted in chief. [ 5 Having gone through the submission of the parties, it appears that all of the six grounds of appeal are on the same issue, which is whether there was proper evaluation of the evidence adduced before the trial Tribunal in reaching its decision. I will therefore consolidate all of the grounds of appeal and determine them as one. Being the first appellate Court, I have mandate to go through the evidence adduced before the trial Tribunal and come with my own conclusion and then determine the grounds of appeal accordingly. In the evidence of the appellant, PW1 Juhudi Kasim Nyambuka stated that the applicant (appellant) is an association with offices within the office of the Director of the City Council of Dar es Salaam. That on 24/9/2016 the applicant purchased ten acres of a farm from Bakari Abdallah Pogola for TZS 24,000,000/=. He produced a sale agreement as exhibit Pl. He also produced a village receipt as exhibit P2 which was issued after payment of TZS 2,400,000/=. That they were told that Aron Titus, the respondent was their neighbour and were shown the boundaries. That in October 2016 they were informed by the vendor that the respondent has invaded and taken part of their farm. That they reported to the police. That when they followed the respondent and asked him about the trespass, he replied that his area was small hence he has decided to increase it by encroaching the applicants area. He said that the respondent has_ 6 unlawfully processed and acquired the Certificate of Title over the suit property while knowing that there is a dispute of ownership over the land. PW2 Enock Rugemalila Ishengoma gave similar evidence as PW1 and added that he was a witness of the sale and has signed the sale agreement as a witness. PW3 was Bakari Abdallah Pogola. He is the vendor who sold the suit property to the appellant. He said that he sold ten acres of farm to the appellant. That he was also the one who sold the land to the respondent and the latter was the first to buy a piece of land form him. That they did not measure the area of the respondent but the respondent looked at the area and was satisfied. PW3 stated that he sold the farm land to the appellant for TZS 24,000,000/= while he sold a piece of land to the respondent for TZS One million. That both sales were done at Bigwa Village Government Office. He said further that the land sold to the appellant was different i.e. after selling a piece of land to the respondent, then he sold the remaining area to the appellant. He said that the respondent has trespassed into the area of the appellant. The respondent testified as DW1. He said that he did not know the applicant. He said that he has not trespassed the alleged area because it is his area which he has bought lawfully. He said that he has purchased- 7 the said area for TZS 11 Million from Mzee Pogola. That Mzee Pogola sold him the piece of farm measured 10 acres. He said that he paid the purchase money by instalments whereby he first paid TZS 3,000,000/=, then he later paid TZS 8,000,000/=. DW1 said further that he was told by Mzee Pogola to pay only TZS 100,000/= for village development. That he paid that but later he added the fee and paid TZS 1,000,000/=. He produced the sale agreement which was admitted as exhibit DI. He said that his witnesses were Titus Aron and Juma Bakari Pogola, who is the vendor's son. Later he was informed by one Selemani Saidi that Mzee Pogola has sold his part of his farm to another person. That he confronted Mzee Pogola who refused to refund part of his purchase money. That he processed the Certificate of ownership and survey of the suit land and later he was issued with two Certificates of Title. The two Titles were admitted collectively as exhibit D10. He insisted that he did not trespass the suit farm but he purchased the land which has a size of ten acres and he was the first to purchase the area before the appellant. He said that it was the appellant who has trespassed into his land and took about four acres of land. / J j 8 On 30/8/2023, after hearing of evidence from both parties to the suit and their witnesses, the Tribunal visited locus in quo. In attendance were parties and their advocates. The findings of the Tribunal were that the size of the suit area is estimated to be five (5 acres). That the neighbours were Ngotoke on the west, Mtendi Ally on the north, the appellant on the south and the respondent on the east. In his judgment at page 18 while elaborating the findings of the Tribunal at the site visit, the Hon. Chairperson stated that the Tribunal has discovered that there is no equality or similarity on some of the neighbours who were stated by the disputing parties in their sale agreements. That in exhibit DI, it shows that on the south, the neighbour is Ally Chuli, while on that area there is the area of the appellant who has bought it from the vendor Pogola. Having analysed the finding at the locus in quo, the Hon. Chairperson went on to declare the respondent the owner of the disputed land basing on the principle of the priority whereby the respondent was the first one to buy the disputed property. However, having analysed the evidence, I have come with the conclusion which is based on the evidence of PW1, PW3 and the findings of the 9 Tribunal at the locus in quo that there are two different areas which were sold by one Pogola to the disputed parties. According to exhibit DI, Bakari Abdala Pogola sold a piece of farm to Aron Titus Kagurumji about ten acres the neighbours being Roja Kipanga on the East, Bakari Pogola (vendor) on the West, Ali Chuli, on the South and Bakari Pogola (vendor) on the North. The land was sold to the respondent on 07/7/2016. Exhibit Pl is the sale agreement between JIJI Cooperative and Bakari Pogola. It shows that the vendor Bakari Pogola sold ten acres of farm land to JIJI Cooperative Society on 24/9/2016. The neighbours are on the East there is Aron Titus, on the West, Ngotoke and Ndongolo, on the South there is Ahamadi Mwarabu and on the North there is Ally Mtunde. Looking at the neighbours on these two documents one can without a doubt say that these are two different pieces of land despite the fact that the vendor is the same person. This fact that these are two different areas is cemented by the evidence of PW3 the vendor who said that; "...Kwa hiyo wadaawa wote wawiH wamenunua kutoka kwangu. Mdaiwa ndio alikuwa wa kwanza kununua.... Mdai nilimuuzia eneo langu tofauti ni kwamba mdaiwa atiweka mipaka ya mawe. Mdai aiinunua eneo UHiobaki. Mdaiwa kaingia kwenye eneo ia mdai", (Emphasis mine). jLd 10 From this, it is my finding that the vendor sold the parties different pieces of land but the respondent encroached into the land of the appellant. The reason for my finding is that according to exhibits Pl and DI, the areas are different. Furthermore, according to the findings of the trial Tribunal at the visit of locus in quo, the area in dispute is within the area of the appellant hence the respondent has invaded the said area. At page 59 of the typed proceedings it shows that the area in dispute is about five (5) acres. On the west the neighbour is Ngotoke, Mtendi Ally on the north, the applicant on the south (not in dispute) and the respondent on the east (not in dispute). Here the area in dispute is within the area of the appellant as the boundaries and neighbours observed at the locus in quo are the same as in the exhibit Pl. It is my view that the trial Tribunal having found the difference on the boundaries (neighbours bordering the disputed area), it was not supposed to end there. The Tribunal could have went further to compare the two sale agreements particularly on the said neighbouring and found out exactly who have encroached into the area which is disputed. The trial Tribunal erred when it failed to determine these dissimilarities found on the locus in quo as against the evidence which was adduced in court orally and documentary. The Tribunal erred further when it used the principle of priority to determine ownership of the suit property while 11 there was major difference in the documentary evidence and at the locus in quo which suggested that the disputing parties have bought different pieces of land from the same person and the possibilities of one party trespassing into the other parties' land as the lands were neighbouring areas. I do not dispute the principle of priority but this matter was one of the matters which does not fall under the said principle. I agree with the submissions by the counsel for the appellant that the major issue here was the trespass. It is by this analysis and reasoning that I find that the appellant is the owner of the disputed land basing on the findings of the Tribunal when it visited the disputed land as I have already analysed herein above. I proceed to quash the findings, judgment, decree and any orders by the trial Tribunal and set the same aside. I allow the appeal with costs. The right of further appeal is expressed to the parties. 31/05/2024 12