Kadege Alakara Judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MANYARA AT BABATI LAND APPEAL NO. 8472 OF 2024 (Originating from Kiteto District Land and Housing Tribunal in Application No. 23 of 2022) KADEGE ALAKARA…………………………………………………. APPELLANT VERSUS THE REGISTERED TRUSTEES OF ARCHDIOCESE OF DODOMA…………………………..…………RESPONDENT JUDGMENT 13th and 14th February 2025 MIRINDO, J.: Kadege Alakara sued the Registered Trustees of Archdiocese of Dodoma for trespass to a piece of land measuring fifty acres situated at Nati village, Kiteto District in Manyara Region. His claim before the Kiteto District Land and Housing Tribunal was that his family acquired the plot by clearing the bushes in 1980 and had been using it for pastoralism and settlement. He pleaded that the respondent invaded the disputed land in 2021 claiming to have purchased the plot from Nestory Mkolwe. He testified before the Tribunal that he acquired the disputed land by clearing the forest. He narrated that the there is a house and tombs of his parents in the disputed land. The respondent’s invasion came after declaring to purchasing the disputed land from one Nestory Mkolwe. 1 On his case, the respondent through his board member, Sergio Machinela testified that as a church they purchased 400 acres of land from Nestory Mkolwe on 30 August 2008 and the disputed land was part of the purchased land. He produced the sale agreement between the church and Nestory Mkolwe which was admitted as exhibit D2. At the conclusion of the trial, the Tribunal held in favour of the Registered Trustees of Archdiocese of Dodoma. Kadege has appealed to the High Court on six grounds of appeal challenging the Tribunal’s decision complaining mainly for not properly weighing the evidence. The respondent, the Registered Trustees of Archdiocese of Dodoma defaulted appearance. Kadege argued that he had been the owner of the plot from time immemorial and pointed out that the respondent was buying the plot from Nestory Mkolwe, the Village authorities were not involved. He explained that his witnesses did not give contradictory evidence as was found by the Tribunal. He complained that Nestory Mkolwe did not prove how he acquired the land from his father neither did he prove how he entered into sale agreement with the respondent. Kadege also argued that the Tribunal never visited the land in dispute to ascertain its existence and physical location despite his request to the Tribunal to do so. Another Kadege’s argument is that the trial tribunal did not record the proceedings correctly. Unfortunately, Kaedge did not open up much on this ground. Lastly, the appellant argued that assessors asked for the view of locus in quo but the Chairperson refused. It is apparent on the face of record that the fate of this appeal rests on the weight of evidence. Did Kadege prove his claim on the balance of probabilities? 2 Kadege claims ownership of the disputed land on two sets of facts. The first set is that he owns the land measuring fifty acres acquired by him through clearing the forest. This set of facts is corroborated by the appellant’s witnesses Lengaisi Isaya and Kiae Alakara. The second set is that the disputed land is a family land as the owner of the land is his father who is now deceased and he was appointed as the administrator of his estate. Unfortunately, no letter of administration was presented by Kadege in support of this allegation. These facts give rise to the following questions? If Kadege is the owner of the disputed land, there is no evidence as to when he cleared the forest. If the disputed land belonged to his deceased father, how did the deceased come into ownership of the land? There is no sufficient account of Kadege’s acquisition of the disputed land and settlement in the disputed land from 1980s as pleaded by him. And if Kadege was the administrator of the disputed land, when was he appointed? There is no evidence in the trial tribunal’s records which give direct answers to the questions. Therefore, the transaction on how Kadege came to the ownership of the suit land is uncertain. Musa Nestory Mkolwe who testified for the respondent told the tribunal that his father, Nestory Mkolwe, sold the land to the church in 2008 and it is evidenced by the sale agreement exhibit D2. The arguments of Kadege that Mussa Nestory Mkolwe did not testify how his father acquired the land and entered in the sale agreement with the respondent is unfounded. 3 In the course of composing the judgment, the Court formed the view that it is in the interest of justice that parties should address the Court on the following additional issue: In view of the third ground of appeal and the appellant’s testimony that he lives in the disputed land and the tombs of the appellant’s parents are in the disputed land, what is the actual size occupied by the tombs and the appellant’s family or clan members in the disputed land? After some delays the Tribunal visited the locus in quo in the presence of both parties. The findings of the Tribunal are that the tombs are not visibly identifiable without some assistance and there are no means of identifying the tombs and when they were dug. The only visible tomb is one of July, 2024 of Kadege’s brother dug when this appeal was pending before this Court. Also found in the disputed land are fresh buildings. At the resumed hearing before this Court, I asked both parties to address me on the findings of the Tribunal on the additional issue. Kadege pointed out that it is not their custom to mark tombs and the houses are not new. Father Sergio Madinda appearing for the respondent supported the findings of the Tribunal. I have no reason to doubt the observations of the Tribunal and given that Kadege gave no sufficient reasons as to why he disagreed with those of observations. For all these reasons, I conclude that Kadege failed to discharge his burden of proof and his case was not proved on the preponderance of probabilities. The appeal stands dismissed and each party to bear its own costs. Dated at Babati this 14th February 2025. 4 F.M. MIRINDO JUDGE COURT: Judgment delivered in the presence of the appellant in person and in the presence of Father Sergio Madinda, the respondents’ representative. B/C. Anna Mathayo (RMA) present. F.M. MIRINDO JUDGE 14/2/2025 COURT: Right of appeal explained. F.M. MIRINDO JUDGE 14/2/2025 5