Juma Ismail vs Msikii Village Council

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA LAND APPEAL NO. 86 OF 2022 (Appeal from the judgment and decree in Land Application No. 25 of 2018 before District Land and Housing Tribunal for Singida at Singida) JUMA ISMAIL.......................................................................... APPELLANT VERSUS MSIKII VILLAGE COUNCIL..................................................RESPONDENT JUDGMENT Date of last order: 8/9/2023 Date ofjudgment: 5/12/2023 KHALFAN, J. At the centre of dispute between the parties herein is a borehole situated at Msikii village Mughamo Ward within Singida region. Each party claimed to be the lawful owner of the said borehole. This prompted the appellant to lodge land application No. 25 of 2018 before the District Land and Housing Tribunal for Singida (hereinafter referred to as the trial tribunal) against the respondent for an assortment of reliefs such as declaration that the appellant is the lawful owner of the said borehole, permanent injunction 1 restraining the respondent from interfering with the appellant's possessive rights of the borehole. In her written submission of defence, the respondent disputed the appellant's claim. A brief background to the instant dispute as could be gathered from the record is not complicated. It is on record that SINO Hydro Company (the company) was contracted to construct the Singida- Arusha Road. Hence, they needed to drill a borehole for storing water for construction purposes. It is not in dispute that the said company drilled the borehole in dispute. After the construction of the road, both parties herein claimed that the said borehole was handed to it. The appellant claimed that the land upon which the borehole was drilled belonged to him and he was handed the borehole after the company had finished its project. On the other hand, the respondent claimed that the land on which the borehole was drilled belonged to him and after the construction of the road, the borehole was formally handed to him. After hearing the parties, the trial tribunal dismissed the appellant's case for lack of merits. Being aggrieved with the decision of the trial tribunal, 2 the appellant lodged the instant appeal with three grounds of appeal as follows: 1. That, the trial tribunal erred in law and facts by holding that the respondent is a lawful owner of the disputed land while there is no evidence which shows how the SINO Hydro Company did acquire the ownership of the disputed land from the appellant so that it may have legal power to transfer the said land to the respondent. 2. That, the trial tribunal erred in law and facts when it ignored and or disregarded the evidence adduced by the appellant's side which shows that the appellant was given the suit land by his late father and went on to decide that the suit land is the property of the respondent without having evidence to support the same. 3. That, the trial tribunal erred in law and facts by holding that the appellant is not a lawful owner of the suit land because he had no written agreement entered between him and the construction company namely SINO Hydro Company and failed to consider the evidence adduced by the appellant which proves that he was the owner of the suit land and the said company was just allowed to sue it temporarily. 3 Basing on the above grounds of appeal, the appellant urged the court to allow the appeal and the decision of the trial tribunal be quashed and set aside. By parties' consensus, this court ordered the appeal to be disposed of by way of written submissions the order which was duly complied with by the parties. The appellant appeared in person while the respondent appeared through Ms. Leia Salum learned state attorney. Submitting on the first ground of appeal, the appellant faulted the trial tribunal for deciding in favour of the respondent while the evidence of DW1, DW2, DW3 DW4 and DW5 was to the effect that they witnessed the handing over of the borehole. The appellant maintained that he was approached by the company's representatives and made an oral agreement to lease for them the borehole. The appellant submitted that exhibit DI only evidenced of handing over of the borehole but there was no formal agreement between the company and the respondent to lease the land. He submitted that there was ample evidence from PW1, PW2 and PW3 which proved that he is the lawful owner of the land upon which the borehole was drilled. He argued that the P 4 company handed over the borehole to the respondent but who was not the lawful owner. To this, he referred to the case of Farah Mohamed v. Fatuma Abdallah [1992] TLR 205. The appellant argued the second and third grounds of appeal jointly. His submission in those grounds is a mere repetition of what he submitted on the first ground of appeal. He insisted that his evidence proved that he was given the land upon which the borehole was drilled by his late father. He added that the respondent could not lead evidence to establish its ownership over the borehole. In reply, the respondent argued that the testimony adduced by DW4 and DW5 proved how the company acquired the suit land for drilling the borehole. In this, the village council leaders were consulted and the company was shown a suitable area for extracting gravel and for drilling the disputed borehole. The respondent argued further that there was an agreement entered with the company and the same was tendered before the trial tribunal. The respondent maintained that the appellant did not tender any agreement to show how he entered into agreement with the company for lease of the land. The respondent argued further that the land upon which the borehole was drilled is a reserved land as open space for water source area. The respondent argued that the borehole is located about a kilometre from the appellant's land. It is argued further that after the company had handed the borehole, the same was being used by the villagers for irrigation, domestic uses and livestock. The respondent's submission on the second and third grounds of appeal centred on failure by the appellant to show that he was the legal owner of the suit land. The respondent argued that it is settled law that he who wants the court to give verdict in his favour, must produce evidence to establish the necessary facts. The respondent argued that the appellant's evidence was weak and thus it could not establish his claim. The respondent therefore prayed the court to dismiss the appeal for lack of merits. In rejoinder, the appellant reiterated his submission in chief, maintaining that the evidence adduced before the trial tribunal sufficiently proved his claims. 6 Having gone through the parties' rival submission, the sole issue for my determination is whether the appeal has merits. In determining the instant appeal, this court, sitting on the first appeal, is tasked to reassess the evidence on record and where possible, to make fresh findings. As pointed in the parties' submission, the centre of dispute is on the borehole drilled by the company. Before the trial tribunal, two issues for determination were framed. The first issue is who is the lawful owner of the land upon which the borehole was drilled. Hence, the fundamental issue for determination is whether the appellant was able to prove his claims. Determination of this issue will dispose of all grounds of appeal as they both revolve around that issue. The appellant, being the claimant before the trial tribunal was required to produce evidence to establish that not only he was the lawful owner of the land upon which the borehole was drilled but also the said borehole was handed to him by the company after the road construction exercise was completed. As correctly argued by the respondent, in terms of section 110 of the Evidence Act, the appellant had a burden of proof to establish his claims on balance of probability. I have revisited the evidence adduced by the appellant who testified as PW1 before the trial tribunal. He claimed that the company constructed a borehole on his land. But he was not compensated, the borehole was handed to him as his property. Looking at the evidence adduced by the appellant before the trial tribunal, the appellant did not tender any document to establish that he owns the land on which the borehole was constructed. The appellant never said as to when he acquired the land upon which the borehole was constructed and documents if any. I have carefully gone through both the application form and the testimonies adduced by the appellant and his witnesses, the size and specific location (in terms of neigbours, borders) of the said land could not be described. I have keenly considered the appellant's claim that the borehole was handed to him by the company. He claimed that there was no formal agreement rather the same was made orally. Unfortunately, the appellant could not state as to when the borehole was handed to him and he also could not mention the people whom he entered into the said agreement 8 taking into account that the company operates through its directors. In the absence of sufficient proof evidencing the appellant's ownership of the land as well agreement of handing the borehole to him, his claims were unproven and the trial tribunal was right to dismiss his application. Consequently, I find the appeal lacking in merits and the same is accordingly dismissed with costs. It is so ordered. Dated at Dodoma this 5th day of December 2023. JUDGE 9