juma said mwinchumu vs benjamini dimoso sungumbili 2023 tzhclandd 16977 4 october 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 311 OF 2023 (Originating from Application No. 34/2020, Mkuranga District Land and Housing Tribunal) JUMASAID MWINCHUMU (Administrator of the Estate of the LATE RA3ABU SAIDI MWINCHUMU APPELLANT VERSUS BEN3AMINI DIMOSO SUNGUMBILL... RESPONDENT JUDGMENT 28/09/2023 to 04/10/2023 E.B. LUVANDA,J The Appellant named above is aggrieved by the decision of the Tribunal which dismissed his claim over ownership of suit land located at Kitongoji "A" Magogo Matatu, Mkuranga WardDistrict, Coast Region. In the memorandum of appeal, the Appellant raised three grounds of appeal, namely: One, the Tribunal erred in law and facts for not considering the evidence provided by the Appellant; Tow, the Tribunal erred in law and fact by basing in favour of the Respondent while he did not bring any evidence before the court (sic Tribunal) to make (sic, prove) beyond reasonable doubt; Three, the Tribunal erred in law and fact by awarding the alleged land to the Respondent without plausible proof. Ground number one, the Appellant submitted that the Appellant summoned four witnesses, to prove that the Respondent uprooted and destroyed crops planted by the Appellant and claimed ownership. He submitted that the Appellant is the owner as proved before the Tribunal. Ground number two, the Appellant submitted that during the trial the Respondent did not tender any evidence, but the Tribunal dismissed the Appellant's claim although he explained being ownership originated from his parents and CCM were given only part of the land by his parent but not the disputed piece of land. Ground number three, the Appellant submitted that he proved his case by bringing four witnesses who testified the ownership and source of the dispute. He submitted that the Tribunal awarded the disputed land to the CCM which is not a party to this matter. He submitted that he is the true owner of the said piece of land and the Respondent trespassed to the disputed land for reason that is owned by CCM which is not true. In reply, the Respondent submitted that the Tribunal considered and evaluated evidence on record and found the owner one Hussein Mwlnchumu gave the suit land to CCM in the year 1977 to 1978 for building office and since then In 1980 the suit land us under possession of CCM. He submitted that the cause of action arose in 2020 the Appellant claim ownership of the suit land for reason that he inherited from his father Said Rajabu Mwinchumu with no proof of inheritance. He cited the case of Hemed Said vs. Mohamad Mbilu (1984) TLR 113, Jeremiah Shemweta vs. Republic,(1985) TLR 228. He submitted that PW4 testimony agreeing that the owner Hussein Mwinchumu gave the said suit land to CCM, arguing it create doubts against the Appellant's evidence. Ground number two, the Respondent submitted that a case before the Tribunal was land case and not criminal case which require proof beyond reasonable doubt, argued standard of proof in land case is on the balance of probability. He cited Magambo J Masato & Three Others vs. Esther Amos Bulaya & Three Others, Civil Appeal No. 199/2016 CAT at Dar es Salaam. He submitted that the Tribunal determined the case before it on the balance of probabilities, evaluating evidence of both parties and the Respondent evidence was heavier than the Appellant. Ground number three, the Appellant submitted that there is no dispute that the suit land was owned by CCM after being given by the owner to date, argued that the Appellant was required to prove his case as allegedly instead of shifting the burden of proof to the Respondent. He cited sections 3(2)(5), 110 and 111 of the Evidence Act Cap R.E. 2019; Uwesu Idd Mbwana Zena Yusuph, Land Appeal No. 181/2021 Land Division; Magambo Masato (supra) and Hemed Said (supra). In rejoinder, the Appellant submitted that they are not disputing that CCM was given the piece of land by their parent one Hussein Mwichumu, and bult office, arguing that the same does not include the disputed piece of land which the Respondent's forcefully including the place owned by the Appellant. He submitted that it is in 2019 when the Respondent tried to conquer the piece of land of his neigbour illegally after expansion of road where the building of CCM was taken by reserve road. On my part, ground number two is unmerited. It is in record that the Respondent paraded a total of three witnesses; Benjamin Dimaso Sungumbiii (DWl) former Secretary of CCM Mkuranga Ward; Abdallah Omary Chobo (DW2) hamlet chairman at the suit plot; Kudra Shaban Msumi (DW3) Chairman CCM Mkuranga Ward for over seven years, the thrice testified on similar account of facts that CCM are the lawful owners were given the suit land by one Hussein Mwinchumu and have been in possession since 1978. This fact was supported by Majuto Rajabu Baimba who testified as plaintiff witness number four (PW4). The alleged proof beyond reasonable doubt, is a standard of proof in criminal cases. In civil matters, land being inclusive, proof is on preponderance of probability, see section 3(2)(b) Cap 6 (supra). Also in Magambo Masato (supra), that "The standard ofproofin land caseJustlike any other cMicase. Is on the balance ofprobability" Ground number one, to my view it is an illusion idea to say the Appellant proved his case, while even his witness (PW4) testified in favour of the Respondent. More important the evidence of Rajabu Saidi Mwinchumu (PW2) deceased and Juma Said Mwinchumu (PW2) was at variance, while PWl said a border with CCM's land was poles and pineapple trees, PW2 stated that the border was cashewnut trees and coconut trees. In that way it cannot be said that the Appellant proved his claim. In fact on the balance, the evidence of the Respondent was heavier than that of the Appellant. Ground number three, the Appellant was attempting to shift a burden of proof to the Respondent, while the Appellant is the one who sued claiming ownership of the suit land. In law, who allege existence of a certain fact in his favour, he must proof. In other words the onus of proof here lies on the Appellant, See sections 110 and 111 cap 6(supra). As I have said above the evidence of the Appellant was heavier on the balance compared to that of the Respondent which was marred with contradiction and PW4 carried forward a case for Defendant (Respondent herein). Regarding a complaint that the Tribunal ruled or awarded suitland to CCM who were not a party to the proceedings. In fact this Is a self defeating argument. On 05/11/2020 when the Respondent appeared for the first time at the Tribunal he made a reservation, I quote as to what transpired on that session, ^Tribunal: The matter is for hearing. Respondent:I'm a Poiiticaileader ofCCM. We entered there as CCM because we were given it by Hussein Mwinchumu. Tribunal: The Applicant is advised to amend application to include Registered Trustees ofCCM as among the Respondent Applicant:Iam notready to do so.Ipray the matter to proceed. Therefore, It is the Appellant self who let the matter to proceed with the obvious defect of non rejoinder of necessary party. Be as It may, in the judgment and decree nowhere the Tribunal awarded or decreed the suit land In favour of CCM. This is because at the final verdict It ended up deciding that the Appellant failed to prove his case and dismissed It with costs. I uphold the said verdict. The appeal is dismissed. However I spare the Appellant costs of this appeal. RT Op c j(. UJVANDA 5 I^DGE 4/10/2023 ★ o D\ Judgment delivered in the presence of the Respondent and in the absence of the Appellant. R.T OF 7: o & eJb:luvanda a ]i]/7 JUDGE a /-k////04/10/2023 O to'-