JUMANNE NTANDU LISU

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND APPEAL NO 26772 OF 2023 (Arising from the Judgment ofDistrict Land and Housing Tribunal for Singida, Land Application Ho. 7 of2023) JUMANNE NTANDU LISSU.............................APPELLANT VERSUS SHADRACK MKUKI KHOLO..............................RESPONDENT JUDGMENT Date of the fast Order: 03/06/2024 Date of the Judgment: 01/07/2024 LONGOPA, J.: The appellant and respondent were parties to the Land Application No 7 of 2023 before the District Land and Housing Tribunal for Singida whereas the appellant was claiming ownership of land measuring 1.75 acres (1% acres) at Sefunga Village in Msange Ward within Singida Rural District. He claimed that he was granted the land by the Village Government of Sefunga Village and that the respondent invaded the land in dispute in 2013 without permission of the owner of the land. 1 I P ;i « On 9th October 2023, the District Land and Housing Tribunal entered judgment and decree in favour of the respondent for failure of the appellant to prove his case. The appellant is dissatisfied by the whole of the judgment and decree thus on 24th November 2023 the appellant filed a Memorandum of Appeal on the following grounds: 1. That, the trial tribunal erred in law and fact to enter judgment in favour of respondent while the appellant proved his ownersh/p ofland in dispute, 2. That, the trial tribunal erred in law and fact to enter judgment in favour of respondent based on weak evidence adduced by the respondent and his witnesses. 3, That, the trial tribunal erred in law and fact to enter judgment in favour of respondent while the appellant adduced strong evidence. The parties were afforded opportunity to argue their respective case on appeal on 3rd June 2024. Both appellant and respondent appeared in person to fend for oneself. The appellant was the first to argue the appeal. He stated that the appellant had witnesses who came from the Village Council having participated in allocating the land to him way back in 1983 and continued using the land throughout. 2 | Page It was argued by the appellant that he had been using the land despite the fact that he had shifted to another village. According to the appellant, his witnesses were strong as they are the ones who granted me that land. The appellant reiterated that he only knows that land in question belongs to him and there are burial places over the plot of land belonging to his family. On the other hand, the respondent stated that he has been using the same (and since 1988 the same was given to him as a gift inter vivos by his father. The respondent reiterated that he had not seen the appellant using that land. It was argued that the respondents witnesses included the elders in that village who witnessed the grant of gift of land inter vivos. Further, the respondents father testified to the effect that land belonged to him as he gave it to respondent way back in 1988. The respondent argued that the appeal has no merits as that land belongs to respondent as rightly decided by the District Land and Housing Tribunal. This was due the fact that the evidence tendered in the District Land and Housing Tribunal was strong and proved that the respondent is the rightful owner of the land in question. In rejoinder, the appellant had nothing substantial to add except to reiterate that he knows that land in question belongs to the appellant, and he is puzzled with the respondent's action cultivating in the appellant's burial site without my authorization. Having heard short submissions from the parties, I had an opportunity to thoroughly peruse the record of the trial tribunal to find out if there are merits of appeal. The records indicates that appellant had called three witnesses to support his case. The respondent called four witnesses in support of his case. The whole evidence is as follows: PW 1 (SM 1), the appellant testified that he was granted the land by Seponga Village government in 1983 and used the land until 1988. He asserted that he buried three of his relatives on suit land in 1984, 1985 and 2000 respectively. It was PW 1 testimony that he moved to Singida Urban in 1987 and in 2012 he was informed that his land was trespassed by the respondent who cultivated it. It was his evidence that from 1988 the land remained unoccupied until 2012 when he was informed that the same has been trespassed by the respondent. The land measures 1.5 acres. PW 2(SM 2) he remembers that in 1983 while a Member in the Village Works Committee she participated in allocation of land. The land measured 1.75 acres. The land has three tombs. There were no any certificate issued to the appellant. Neither there were any records. PW 3 (SM 3) stated that in 1983 she was living with applicants mother who demised in 1987. The appellant moved to Endeshi village. The land was invaded in 2015. It is only measuring one acre. On the other hand, the respondent's evidence was to the effect that: DW 1 (SU 1) stated that sometimes in late 1980s his father gave him a land as a gift inter vivos. He found his father using the land in 1980s. He has been in full occupation and use of disputed land for cultivation since late 1980s todate. He was given the land when he was 17 years old. Size of the land is 1 acre. DW 3 categorically provided description of the land in question. Description of land boundaries tally with SU/DW 3. Further, DW 2 testified that the disputed land belongs to the respondent as he was given a gift inter vivos by his father. DW 2 was present when DW 2 was given a gift inter vivos in 1988. The appellant was only invitee to the land of the respondent's properties. This was not contradicted by cross examination as the appellant commented to have no question as SU 2 does not know anything. Also, DW 3 stated that respondent was given the land inter vivos by his father in 1988 and surprising that appellant appeared of late claiming that such plot of land belongs to him. There was no cross examination of this witness 5 I I’ a g r Moreover, DW 4 testified that in 1975 he cleared a virgin land and commenced cultivation. In 1988 he gave it as a gift intervivos to the respondent. It is measuring 1 acre. DW 4 reiterated in cross examination that he is the one who cleared the virgin land and have used the land throughout. That is the totality of evidence on record. I shall evaluate this evidence in the light of grounds of appeal and principles governing the proof in civil cases. It is trite law that in civil cases, it is the burden of the person who alleges existence of the fact and wishes the court to believe the same to adduce evidence to prove existence of such fact for the Court to decide in his favour. This was reiterated in the case of Amos Njile Lili vs Nyanza Cooperative Union (1994) Ltd & Others (Civil Appeal No. 126 of 2020) [2024] TZCA 13 (31 January 2024), pages 15-16, where the Court observed that: In our determination of the complaints before as, we shall be guided by the following principles of law. One, is that in civil cases, the burden of proof lies on the person who alleges anything in his favour founded on section 110 of the Evidence Het. 7wo, is that the burden of proof envisaged above is on the balance of probabilities as stated in var/bus decisions of this Court, including 6 | Page Anthony Masanga v. Penina Mama Mgesi and Another, Civil Appeal Alo. 118 of 2014 and Hamza Byarumshengo v. Fu/gencia Manya and 4 Others, Civil Appeal Alo. 38 of2017 (both unreported). In the instant appeal it was the appellant who instituted a land application against the respondent herein on allegation of trespass to land by the respondent. As the appellant is the one who alleged to have been in ownership and use of the land in question throughout since 1983, he was duty bound to put material evidence before the District Land and Housing Tribunal to prove existence of such facts. Having analysed the available evidence on record, it is my settled view that appellant's evidence was not sufficient to entitle him to be declared as the lawful owner of the land in question. There were a total of three witnesses before the District Land and Housing Tribunal to prove the case for the appellant. In totality of the appellant evidence there are several aspects that the appellant failed to substantiate. This evidence of the appellant has vivid discrepancies in it. One of the discrepancies of the appellant's evidence is on the size of land. There are three different versions on the size of land. The one who allegedly participated in the allocation of the land to appellant stated that the size is 1.75 acres (13A acres). The appellant stated that such land measuresl.5 acres (l1/? acres) while the PW 3 testified that such land is measuring 1 acre only. Given the divergent evidence of all the three witnesses on the size of the land in question, it is lucid that appellants assertion that he was given the land by the village government seem to remain unproved. The person who alleges to have participated in hand over the land stated different land measurements compared to that of the recipient. In other words, it would appear the witnesses have adduced evidence on different plots of land. Also, the appellant's evidence faced other challenges. First, there is no evidence as to whose land was allocated to the appellant belonged. There is no evidence on record whether it is true that the land belonged to the village. There is no evidence on the manner the village got the land it allocated to the appellant. Second, there is no evidence that PW 1 was a leader. No former leader of the Village government appeared and that no documentary evidence was produced to substantiate this claim. For the grant of land vide a gift intervivos, there are few mandatory conditions that must be proved, namely: First, intention to give the land. Second, acceptance of the same by the recipient. Third, the effective occupation of the land by the recipient or donee. These aspects fall within the principle in the case of Hamis Sultan Mwinyigoha vs Zainabu 8 ■ P < 1 g i* Sultan Mwinyigoha (Civil Appeal No. 447 of 2020) [2024] TZCA 150 (29 February 2024) (TANZLII). At pp. 5-6, the Court stated that: We have therefore underscored in the context of this case that, validity of a gift essentially lies on the intention to give and acts incidental to that intention which may include the physical handing over of the gift. See Micky Woodley Osborn's concise Law Dictionary (supra) at Page 200-201. It is also essential and paramount for the gift to be voluntary on the part of the donor and without any element of consideration on the part of the donee. Us per the commentaries contained in Justice Klf Chandrachud, P Ramanatha Aiya Concise Law Dictionary 3rd Edition, Lexis Alexis Butterworths Wadhwa, page 493; love, affection, spiritual benefit and many others may enter into the intention of the donor to give or make a gift. In the law of property therefore, three elements must exist for a gift to be legally valid. One is, as alluded to above, intent to give by the donor, two, delivery of the gift to the recipient, the donee and three, is the acceptance of that gift by the donee. These three elements, by any standard, are exhibited by way of evidence, no more no less. It is to say in the instant appeal, there must be evidence proven on balance of probabilities that 9 ' Page the /ate Su/tan Mwlnyigoha granted the suit property to the appellant by way ofa gift. It was the evidence of DW 1 that he was given the land as a gift intervivos in late 1980s and he has continued to use the same todate. This evidence was corroborated by evidence of DW 2, DW 3 and DW 4. In fact, DW 2 testified to have witnessed such donation of the land from the respondent's father to the respondent. DW 4 finalised it all. He stated that he gave the land as gift intervivos to his son, the respondent in 1988. He described the source of his ownership being clearing of the virgin land in 1975. All the four respondent's witnesses testified that the respondent has been in full occupation and use of the land since 1988 todate. In the case of Ernest Sebastian Mbele vs Sebastian Sebastian Mbele & Others (Civil Appeal 66 of 2019) [2021] TZCA 168 (4 May 2021) (TANZLII), at page 11, the Court Appeal noted that a person claiming the ownership of land vide being given a gift intervivos must state categorically in his evidence in chief and explain how he came to know of the donation, the number of witnesses that were present on donation, the names of the witnesses and the place where such donation was made. It is lucid that the respondent called witnesses who had witnessed the grant of the land intervivos including the donor. All the four respondent's witnesses had stated categorically that the land was given to the respondent in 1988 and that he took occupation of the same in the same year. Further, it was testified that these witnesses where there at the Sefunga village when the gift intervivos was given to the respondent. The size of the land was described by respondent's witnesses to be one acre. The description of the disputed land by the respondent's witnesses tally. There are no discrepancies of witnesses on that aspect. The appellant evidence indicates that he left that land unattended since 1988 and he has never used the land from that time. According to the appellant it was until 2012 when he was informed that the land had been invaded/trespassed by the respondent. Even if the land would have been proved that originally belonged to the appellant still, he would have a hurdle to prove as the time that such land would have remained abandoned could entitle anyone to claim adverse possession. In fact, evidence of DW 2 added that appellant was invitee to that land due to then existing tribal conflicts between the Nyaturu and Mang'ati thus the appellant was accommodated temporary at the respondent's father land. It was DW 2 testimony that when the conflict ended the appellant had to return to his village in Endeshi. It is on record that this evidence was not challenged at all. In Paul Yusuf Nchia v National Executive Secretary, Chama cha Mapinduzi and Another (Civil Appeal 85 of 2005) [2006] TZCA 90 (12 October 2006) (TANZLII), at page 13, the Court of Appeal stated that: 4 party who fails to cross- examine a witness upon a particular matter in respect of which it /s proposed to contradict him or impeach his credit by calling other witnesses, tacitly accepts the truth of the witness's evidence in chief on that matte/; and will not thereafter be entitled to invite the Jury to disbelieve him In that regard The proper course is to challenge the witness while he is in the witness- box or; at any rate to make it plain to him at that stage that his evidence is not accepted. This legal position of failure to cross examine was also reiterated in the case of Anna Moises Chissano vs Republic (Criminal Appeal 273 of 2019) [2021] TZCA 468 (14 September 2021) (TANZLII), at page 23, the Court stated that: Much as appreciate the above legal position yet it cannot be forgotten that there are other basic and settled legal positions providing the procedure on Its presentation. One such principle is that a party who fails to cross examine a witness on a certain matter is deemed to 12 | Page have accepted that /natter and will he estopped challenging it at an appellate stage. The appellant having opted not to cross examine DW 2 and DW 3 by stating that they knew nothing made the testimonies of these two witnesses remain intact and unchallenged. The evidence of DW 2 and DW 3 had the effect of establishing two main aspects, namely that respondent got land as a gift intervivos from his father, and that appellant was once an invitee at the respondents father land at Sefunga village during the pendency of tribal conflicts in 1980s. On the available evidence on record, it is certainly that the appellant failed to prove that he got the land from the village government in 1983 and that he had been in use of the land since then. Neither of the grounds of appeal preferred by the appellant seems to have any merits whatsoever. It is lucid that weighing the grounds on the available evidence tilts on the respondents side. It was the respondent's evidence that was watertight and established that the respondent is entitled to the piece of land in question. The appellant's evidence was weak, disjointed and contradictory in nature. I am of the settled view that the trial tribunal was correct to agree with the opinion of both assessors that the respondent was entitled to that 13 i Pug e land in dispute. There was no evidence to support that appellant was entitled to that land. I uphold that decision for being arrived at correctly and supported by the available evidence on record. At this juncture, I am therefore dismissing all the three grounds of appeal for lack of merits. The land in question belongs to the respondent as the lawful owner of the same on account of available evidence on record. The appeal stands dismissed with costs. It is so ordered. DATED at DODOMA this 1st day of July, 2024. E.E. LONGOPA JUDGE 01/07/2024 14 i Pag e