t JONAS MWASHAMBWA VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MBEYA SUB-REGISTRY

AT MBEYA LAND APPEAL NO. 5243 OF 2024 (Arising from the District Land and Housing Tribunal for Songwe at Mbozi in Land Application No. 4 of2023) JONAS MWASHAMBWA........................................................... APPELLANT

VERSUS FANE AMBONISYE.............................................................. 1st RESPONDENT REUNARD N. MWASHILINDI............................................. 2nd RESPONDENT

JUDGMENT 25th July & 29th August, 2024 TIGANGA, J. This appeal originates from the decision of the District Land and Housing Tribunal for Songwe at Mbozi (trial Tribunal) in Application No. 04 of 2023. Initially, the appellant Jonas Mwashambwa sued Fane Ambonisye alone, but by the order of the trial tribunal dated 20/04/2023 the second respondent Reunard N. Mwashilindi was joined as a necessary party, being the person who allegedly sold the suit land to the appellant. In the application and the evidence before the trial tribunal, the appellant alleged that the 1st respondent invaded his land situated at Huduma sub-village in Utambalila village, Nambizo ward in Mbozi District. It was also alleged that the invaded land is measuring 1 1/4 i acres being part of six acres that the appellant purchased from the 2nd respondent. The appellant further alleged that the suit land was purchased in 2015 and the 2nd respondent assured him of being the legal owner of the same. The appellant also stated that from when he started using the suit land in 2015 no dispute emerged until 2022 when the dispute subject of this appeal arose. He prayed to the trial Tribunal to declare him the lawful owner of the suit land, and issue an injunctive order to the 1st respondent or his agent from invading the land and give the costs. In turn, the 1st respondent denied the claims, she alleged that the appellant

had never used the suit land except in 2022 when he tried to do so but the dispute arose. On the 2nd respondent's part, besides admitting to the appellant's claims he admitted to having sold the suit land to the appellant. In proof of his case, the appellant testified himself, he did not call any other witness to support him. However, his testimony was supported by the 2nd respondent who testified as DW3. On the other hand, the 1st respondent adduced her evidence and called three other witnesses to support her case. In the end, the trial Tribunal was satisfied by the 1st 2 respondent's evidence, it thus dismissed the appellant's claim for lacking merits. Dissatisfied, the appellant preferred the present appeal to this Court on three grounds as follows: 1. That the trial court(sic) tribunal erred in law and fact by failing to consider, analyze, and properly evaluate the evidence of the parties and thus reaching a wrong decision.

2. That the trial court erred in law and fact by failing to note that the appellant bought the land in dispute in 2015 in Mwansapile hamlet in Utambalila village and now the same land is at Huduma hamlet in Utambalila village due to a new allocation of hamlet borders.

3. That the trial tribunal erred in law and fact by basing its decision on the weak evidence of the First Respondent and her witness in disregard of the strong evidence of the appellant, exhibit P2, and second respondent in the trial case. Owing to those grounds, the appellant prayed for the appeal to be allowed and the appellant declared the owner of the suit land and that the costs be borne by the 1st respondent. 3 At the hearing, the appellant and 2nd respondent appeared without legal representation while the 1st respondent was represented by Ms. Rukamilwa learned advocate. When the appellant was invited to expound his appeal, he generally submitted that this court should find that the trial Tribunal failed to consider his evidence which is the sale agreement of the farm in question. He also contended that at the time he purchased the suit land, it was located in the Mwasapile sub-village, and it is from Mwasapile sub-village the two sub-villages of Huduma and Mwasapila were born but are in the same village of Mtambalila. In response, Ms. Rukamilwa combined and argued the 1st and 2nd grounds of appeal. Referring to pages 3 and 4 of the impugned judgment, she submitted that the trial Tribunal properly analyzed the evidence of both parties. According to her, the trial Tribunal rightly decided when it held that the appellant's sale agreement (exhibit P2) was void and thus did

not prove ownership of the suit land. Ms. Rukamilwa faulted the appellant's contention that the suit land is now located in Huduma sub-village but was previously in Mwasapile sub-village both found in Utambalila village. According to her, the appellant failed to prove his contention and that these sub-villages had 4 never been one but they were neighbouring sub-villages. That had it been the case, the appellant would have called a leader or any witness to substantiate the same or that witness to say if he or she witnessed the sale agreement, she argued. She further argued that even the 2nd respondent did not prove the appellant's case as he did not establish if he was the lawful owner of the suit land and did not say that the land he sold was in Mwasapile sub­ village instead of Huduma sub-village. On the contrary, the 1st respondent proved her case by saying that she and her husband owned the land from 1974 and she remained the sole survivor upon the death of her husband. Also, the 1st respondent called DW4 and DW5 who both testified that Huduma and Mwasapile were two different sub-villages and their leaders have never worked interchangeably, that is according to Ms. Rukamilwa. On the 3rd ground of Appeal, Ms. Rukamilwa's submission was a replica of the submission in the preceding grounds. She however added that as in civil suits parties’ evidence cannot tally and a court has

to sustain evidence which is weightier than the other. She referred to the decision in the case of Hemed Said vs Mohamed Mbilu, (1984) TLR 113. She thus urged this Court to dismiss the appeal. 5 On the 2nd respondent's part, he supported the appellant's appeal and claimed that he sold the suit land to the appellant as he was apportioned the same by his family after he completed his primary school studies. He also maintained that at the time he sold the suit land, there were no boundaries between the Huduma and Mwasapile sub­ villages. He implored this Court to analyze the evidence and give the suit land to the appellant. In rejoinder submissions, the appellant joined hands with the 2nd respondent's submission. To him, the 2nd respondent has not left a stone unturned by maintaining that he sold him six acres of land which 1 1A acre has been invaded by the 1st respondent. I have considered the submissions by the parties. The three grounds of appeal can be compressed into one main issue which is whether the trial Tribunal properly evaluated the evidence adduced by the parties and resolved as such. In resolving the issue, this being the first appellate court, in terms of the decision in the case of Yasin Mwakapala vs the Republic, Criminal Appeal No. 604 of 2015, CAT - Mbeya, I will re-visit and re-evaluate the evidence and if possible, come to my own conclusion. However,

cautiously while acknowledging that the trial Tribunal was better positioned to see, hear, and appreciate the 6 evidence as held in Khalife Mohamed (As Surviving Administrator of the Estate of the late Said Khalife) vs Aziz Khalife and Another, Civil Appeal No. 97 of 2018, Court of Appeal of Tanzania at Tanga (unreported) and Tanzania Sewing Machine Co. Ltd vs Njake Enterprises Ltd, Civil Appeal No. 15 of 2016 CAT (also unreported). In resolving the above issue, I will be guided by the general principle that whoever alleges must prove. This is per section 110 of the Evidence Act, [Cap 6 R.E 2022], and many other cases including the case of Kwiga Masa vs. Samwel Mtubatwa [1989] TLR 103. Also, it is the settled law that in civil cases the standard of proof is on the balance of probability - section 3 (2) (b) of the Evidence Act (supra). The latter entails that the court will uphold the evidence and decide in favour of a party whose evidence is weightier than the other; see Hemed Said vs Mohamedi Mbilu (supra), Ikizu Secondary School vs. Sarawe Village Council, Civil Appeal No. 163 of 2016 (unreported) and the case of Scania Tanzania Limited vs. Gilbert Wilson Mapanda, Commercial Case No. 180 of 2002 (unreported) where 'balance ofprobabilities'ascribed to mean that: 7 "A court is satisfied an event occurred if it considers that on evidence, the occurrence of the event is

more likely than not." For that, I will subject the entire evidence to scrutiny to see between the parties who gave weightier evidence compared to the other. The evidence of parties on the record is not hard to comprehend. The appellant (PW1) testified that he claimed a farm measuring 1 1/4 acres situated in Utambalila Village. He said that the land is part of 6 acres that he purchased from Leonard Mwashilindi (2nd respondent). He tendered a letter/sale agreement that was admitted as exhibit Pl. He further stated that the suit land was invaded by the 1st respondent. That the land is in Mwasapile sub-village and that the agreement was entered in thereat. His evidence was supported by the 2nd respondent (DW3) who testified to have sold a six-acre land that included the suit land to the appellant. Tracing how he personally started to own the land, he said he was given the same by his father in 2002. It was also her evidence that the sale was proved by the sale agreement that they concluded. He also said that the suit land is in Mwasapile sub-village. However, when cross- examined he said that the two sub-villages; Huduma and Mwasapile sub-villages existed at the time he sold the land. 8 On her part, the 1st respondent (DW1) stated that she owns the suit land which is in Huduma sub-village and she had been using the same for so long. It is 1.5 acre. She mentioned the neighbours of

the suit land to be Hamis, Barnabas, and Leonard Mbuga. That the suit land was apportioned to her and her husband in 1974 and that it was before her husband had passed away. She did not understand the reason for the 2nd respondent and appellant signing the agreement in Mwasapile sub-village while the land is in Huduma sub-village. The suit land is adjacent to the 2nd respondent's father's land which is Hamisi's land. She did not cultivate it for 5 years following the dispute that emerged between her and the appellant. That, they once agreed with the appellant to pay for it but, he did not do so. To support her case, the 2nd respondent called Lazaro Mgalla (DW2), Ostin Ally Jumbu (DW4), and Musa Simbeye (DW5) whose evidence was to the essence that the 1st respondent is the owner of the suit land and she has been using it for long time. That it is a 1.5 acre situated at Huduma sub-village. According to DW4 and DW5 Huduma and Mwaisapile sub-villages have never been one nor led by the same leaders. Further evidence by DW5 was that the suit land is bordering his father's land therefore, he knows it very well from his childhood. 9 In the above evidence, as it is on record, the fact that the appellant purchased land from the 2nd respondent is not at issue, and the fact that the sale agreement between the two was witnessed in Mwaisapila sub-village is undisputed. Moreover, according to

the evidence of the 1st respondent which I consider to outweigh the appellant, the suit land is in Huduma sub-village and not in Mwasapile sub-village. This is because DW1, DW2, DW4, and DW5 are the residents of Utambalila village where the two sub-villages are located, and the fact that some witnesses such as DW4 and DW5 have been the leaders in the Huduma sub-village, then the account by the appellant and 2nd respondent that the suit land is in Mwasapila sub-village lacks proof. Now, the question is, is there tangible evidence to prove that the 2nd respondent owned six land acres of land for him to pass to the appellant? In my view, the evidence is short of proof of that question. As I have intimated before, it was upon the appellant who sued the 1st respondent to prove with cogent evidence that the 2nd respondent owned six acres of land and that the suit land that is 1 1A acres is part of the six acres that the appellant allegedly purchased from the 2nd respondent. It should be noted that the issue to be proved was whether io the suit land is part of the land that the 2nd respondent sold to the appellant, therefore tendering of exhibit Pl without further proof that the suit land was part of the land purchased through exhibit Pl did not help to prove the claim. To the contrary, the 1st respondent has been able to call witnesses who reside in the sub-village where the suit

land is situated and who testified how she was in use of the land for a long time. And the evidence that she acquired it with her husband in 1974 was not contradicted. In the absence of any other evidence from the appellant and 2nd respondent that the 1st respondent had never owned the land in dispute, bordering the land which the 2nd respondent sold to the appellant then this court agrees with DW2 who said that the 2nd respondent sold part of land which was not his. Furthermore, this Court has also failed to understand what was the reason behind the appellant and 2nd respondent saying that the suit land is in Mwaisapila sub-village while the ample evidence is that it is in Huduma sub-village, and if it is in Huduma Sub village why did they sign the agreement before the leaders of Mwasapile sub-village. The disturbing issue as to this fact is, can it be possible for a person residing in a certain village not to know which sub-village his land is situated in? li This negatively affects the cogency of the evidence by the appellant which when weighed on the same scale as that of the 1st respondent, it fell short of weight. That is why the appellant and the 2nd respondent were even not able to call any of the persons who witnessed the sale or a neighbour to the suit land. That imputes the belief that the neighbours are those who were called by the 1st respondent as DW2, DW4,

and DW5 who said categorically that the suit land belongs to the 1st respondent. In the fine, and based on the evaluation of evidence and the analysis made, only one conclusion is inevitable, that the appellant did not prove his claim, the trial tribunal was therefore justified to hold as such. On that base, there is no ground to fault the trial Tribunal's decision as the appellant did not prove his case to the balance of probability. The appeal is thus, dismissed with costs. It is so ordered. DATED and delivered at MBEYA on this 29th day of August 2024. 12