fataki

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA SUB-REGISTRY AT SUMBAWANGA LAND APPEAL NO.45 OF 2023 (Originating from the Decision of District Land and Housing Tribunal for Rukwa at Sumbawanga, in Land Application No.5.5 of 2022) LAZARO DOMINICK FATAKI................... APPELLANT VERSUS LAN GINO DOMINICK FATAKI..... ...................... RESPONDENT Last order: July 28, 2024 Judgment: August 28, 2024 JUDGEMENT NAN GE LA, J.: This appeal arises from a decision of the District Land and Housing Tribunal (DLHT) for Rukwa at Sumbawanga in land application No. 30 of 2022. The appellant has raised three grounds urging this court to allow the appeal, quash and set aside the judgment and orders of the DLHT and declare him a lawful owner of a disputed piece of land measuring 30 acres. Page 1 of 8 The factual background may be stated briefly. Before the DLHT was a complaint filed by the appellant alleging to be a lawful owner of 30 acres of land in N'gongo Village, Mtowisa Ward, Sumbawanga District, and that the respondent was a trespasser who should be removed. The respondent opposed the claim, arguing that the land belonged to their father, who has long passed away, leaving the property to the family. Upon hearing the parties, the tribunal dismissed the claim and ordered the parties to appoint an administrator of the estate of their late father, Dominik Fataki and distribute the land to his lawful heirs. Dissatisfied, the appellant has appealed against that decision. He has raised three grounds: 1. That, the trial tribunal erred in law and in fact in deciding the dispute without analysing the evidence adduced by the appellant. 2. That, the trial tribunal erred in law and in fact when it held that the land belonged to his late father Dominik Fataki while it belongs to him after it was allocated to him by the N'gongo Village Council for grazing activities. 3. That, the trial tribunal erred in law and fact when it decided the dispute without considering the evidence adduced by the appellant's witness which proves that the land belongs to the appellant. Page 2 of 8 When the appeal was called set for its hearing, both parties appeared in court unrepresented and presented their respective positions, in support of his grounds of appeal, the appellant submitted that, the tribunal erred given that the land belonged to him having cleared it himself as it was abandoned by his father in 1970. He contended that, since he was the one who cleared it, as Section 45 (1) (-c) the Village Land Act 1999 provides, the land was deserted, and anybody could have taken the land. He submitted that together with his brother Arkado (now deceased), he occupied the land since 1979, where they pastured their herds of cattle while his late father moved away to another pastureland C’pori"). He stated that when his father died in 1982, he went to the village where the land was allocated to him. Having cleared it, he contended that the land was his rightful property and so the tribunal was wrong. For his part, the respondent submitted that the disputed land does not belong to the appellant. He submitted that the decision of the tribunal was correct. It belongs to the family. He told this court that, when the appellant filed the case before the tribunal, he did not win the case, and the land has been distributed to the heirs of the late Dominik Fataki, including the appellant. As it may be noted from the record, the parties herein seem to have restated what they had submitted before the DHLT instead of arguing the grounds of appeal. That fact notwithstanding, their failure to do so is no offence considering that they were unrepresented. This being a first appellate court, I will not only consider their submissions in the context of what was before the DLHT but also look at how the tribunal dealt with the claims brought before it. Put differently, this court will re-evaluate the whole evidence laid before the DLHT and, as a matter of law, the court can even come up with its own findings. See, for that matter, the case of Deemay Daat, Hawa Burbai & Nada Daati vs. The Republic, Criminal Appeal No. 80 of 1994, (CA) (Arusha) (unreported), Lazaro Fataki vs. Nowel Ngomango, Land Appeal No. 44 of 2023 (HC) (Sumbawanga) (unreported), and Khalfan Omari Kisaka (the Administrator of the Estate of the Late Juma Said Kitano) vs. Matare Village Council & 30thers, Land Appeal No. 100 of 2022 (unreported), (HC) (Dodoma). I have looked at three grounds of appeal. In my view, the first and third grounds of appeal can be respondent to jointly. The first ground of appeal is anchored on the issue of failure on the part of the DHLT to analyse and consider the evidence adduced by the appellant. The third ground is to the effect that the trial tribunal erred in law and fact when it decided the dispute without considering the evidence adduced by the appellant's witness, which proves that the land belongs to the appellant. As it may be noted, both grounds resonate on one aspect, the failure on the part of the DHLT to analyse and consider the evidence laid before it. But the question to respond to is whether indeed there was such a failure on the part of the tribunal. In the Page 4 of 8 case of Lutter Symphorian Nelson vs. The Hon. Attorney General and Ibrahim Said Msabaha [2000] T. L. R. 419, at 444, the Court was of the view that: "A judgment must convey some indication that the judge or magistrate had applied his mind to the evidence on the record. Though it may be reduced to a minimum, it must show that no material portion of the evidence laid before the court has been ignored.” (Emphasis added). In my view, I find that the DHLT did analyze the evidence laid before it and applied its mind to the same evidence where it arrived at the conclusion it arrived at. In fact, it was right to hold the way it did, as I will elaborate shortly afterwards. As the record of this appeal shows, when the complaint was laid before the DHLT, the appellant called three witnesses to support his case, who were all members of his family, himself testifying as SM-1 while his wife and son testifying as SM-2 and SM-3. On the other hand, the respondent called four witnesses who testified as SU-1, SU-2, SU-3 and SU-4. If one looks at the same record and the judgement of the DHLT, it will show, from page 6 of the judgement, that the DHLT did consider or analyse the evidence laid before it. In the first place, the DHLT did not find any supporting evidence from the appellant that he was allocated the disputed land by the Village Council for N'gongo Village. Secondly, the DHLT made a finding that while the appellant had the opportunity to call for a Page 5 of 8 witness from the village leadership to support his claims, he did not call any of such witnesses and did not tender any supporting documents to show that he was granted the respective land by the Village Council. Upon considering the evidence in support of the respondent's case, the DHLT found as well that what the respondent was telling it was that the land belonged to their deceased father. In view of all that, and having weighed the evidence before it, the DHLT concluded that all parties were not rightful owners of the disputed land but rather that the land belonged to their late father. But was the DLHT right to hold that way? As I stated herein earlier, the DHLT analysed the evidence laid before it and was right to hold the way it did. I hold that position because, the law is clear: he who alleges must prove. Since the appellant claimed to have been granted the land by the N'gongo Village Council, one would have expected him to tender before the DHLT documentary evidence to that effect or else call any of the village leaders or members of the respective council to establish his claims. Such would have supported the version of his story, which was also supported by SM-2 and SM- 3, In my view, much as SM-2 and SM-3 could testify as witnesses, the presence of additional independent evidence would have made much difference in resolving the dispute. The village council could have been approached by the appellant, and any of the members or the chairperson would have assisted. r age u ui o In the absence of such evidence entitled the DHLT to draw up a negative inference, noting that even SM-2 and SM-3 did not support the view that the land was allotted to the appellant by the Village Council only that it was the appellant who cleared it. Clearing it was not sufficient to entitle the appellant to claim full ownership of it if it was initially a family grazing land. For that reason, I find that the first ground of appeal lacks merit, and I hereby dismiss it. As regards the second ground, the appellant faults the DHLT for holding that the land belonged to his late father, Dominik Fataki instead of holding that it belongs to him having been allocated to him by the N'gongo Village Council for grazing purposes. However, as already stated in respect of the first and third grounds of appeal, there was no way that the DHLT could have ruled in favour of the appellant if no sufficient evidence was laid before it. Essentially, courts or tribunals would decide any matter based on the evidence laid before them, and the duty to prove any claim brought before a court or a tribunal lies with the one who alleges. Failure to discharge such a noble duty would mean a defeat on the part of the claimant. In view of all that, I also find that the second ground lacks merit, and I hereby dismiss it. Having considered all three grounds of appeal and having found them to be lacking merits, this court settles for the following orders: Page 7 of 8 1. That the decision of the Tribunal is hereby affirmed as correctly arrived and parties are called upon to implement the orders of the District Land and Housing Tribunal. 2. That, the entire appeal is hereby dismissed. 3. That, in the circumstances of this case each party is to bear its own costs. It is so ordered. DATED AT SUMBAWANGA ON THIS 28th DAY OF AUGUST 2024 DEO JOHN NANGELA JUDGE Right to appeal is hereby explained. Page 8 of 8