Leticia Mwandu v Yohana Pulungwe Judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA LAND APPEAL NO. 4885 OF 2024 (Arising from the judgment of Land Application No. 08 of 2023 of Land and Housing Tribunal of Kishapu District) LETICIA MWANDU ………………………….…….……………………… APPELLANT VERSUS YOHANA PULUGWE………………………………………….....……… RESPONDENT JUDGMENT Date of Last Order 25.06.2024 Date of Judgment: 09.08.2024 MWAKAHESYA, J.: In the Kishapu District Land and Housing Tribunal (the Tribunal), the respondent sued the appellant claiming a one-acre piece of land allegedly encroached by the appellant. The respondent gave evidence to the effect that he inherited a piece of land, from his late father, measuring about six acres, of which he used part of it for cultivation and part of it for grazing animals. However, to his surprise, in the year 2017 the appellant encroached his land and usurped about an acre of it, having destroyed a tamarind tree “mkwaju” and sisal that were acting as natural boundaries. 1 Meanwhile, the appellant claimed that the disputed land belonged jointly to her and her deceased husband having purchased it from one George Gelewa way before “Operation Vijiji” and the respondent encroached it after her husband’s death. At the conclusion of the hearing, both assessors were of the view that the respondent had proved that the disputed piece of land belonged to him, and gave their opinions in his favour, likewise the Tribunal Chairperson decided in favour of the respondent stressing the fact that the appellant’s pleadings contradicted the oral testimony adduced during the hearing of the land application. This was in reference to the manner that the appellant acquired her land, having previously pleaded that it was vacant land and she obtained it during “Operation Vijiji” in the year 1978, while during the hearing of the application, as stated previously, she claimed to have bought it from George Gelewa. The decision of the Tribunal aggrieved the appellant thus prompting her to file the present appeal which is based on the following grounds: 1. That, the tribunal erred in fact and law to reach the judgment in favour of the respondent without considering the fact that the 2 testimony of the respondent contradicted the testimony of his witness on what happened to the boundaries; 2. That, the tribunal erred in fact and law when pronouncing the judgment without reading the opinion of the assessors; and 3. That, during the hearing and determination of the matter, the tribunal was bias. At the hearing of the appeal both parties appeared in person, unrepresented. Submitting generally, the appellant informed the court that she was claiming her land and that she has been in it since the year 1978. On the first ground of appeal, she submitted that, there was no sisal on the land which marked the boundaries and there was no “mkwaju”. On the second ground of appeal, rather strangely and against her own ground of appeal, she submitted that, the assessors’ opinion was read. On the third ground of appeal. She submitted that, the tribunal was bias because the judgment was not in her favour. 3 In reply, the respondent submitted that, the appellant destroyed the sisal that was marking the boundary between his land and hers and a “mkwaju” tree. Replying to the second ground of appeal, the respondent merely submitted that the same lacks merit. Lastly, responding to the third ground of appeal, he submitted that, the tribunal was not bias thus the ground has no merit. In rejoinder, the appellant reiterated that her appeal is meritorious and it should be allowed. Having gone through the records and the rival submissions of the parties I shall now proceed to determine the appeal. On the first ground of appeal, in the Memorandum of Appeal the appellant seems to raise an issue of contradictions between the evidence adduced by the respondent and his witness during hearing, on what happened to the boundaries demarcating the appellant’s land with that of the respondent. However, during the hearing of this appeal the appellant submitted that, there was no sisal and there was no tamarind tree. 4 At page 5 of the typewritten proceedings of the Tribunal the respondent had this to say about the boundaries: “…Mikonge amechoma moto na mti wa Mkwaju amekata na kutoa visiki hapo alichoma moto…” This can be unofficially translated to “she set fire to the sisal and cut down the tamarind tree…” Meanwhile, Salili Mafonga (SM2), who was the respondent’s witness had this to say during the hearing, at page 8 of the typewritten proceedings of the Tribunal: “…Mwaka 2017 nilishangaa kusikia Leticia Mwandu anavuka mipaka ya asili ambayo ni katani zilizokuwa zimezunguka eneo lao lote…” And at page 9 when clarifying to the assessors he stated: “Mama Leticia aling’oa fence za katani na kuchoma alama bado zipo nikienda huko nitaelekeza.” Again, he went on to testify that, “…Kulikuwa na ukwaju Leticia aliukata na zipo njia za asili hapo” In essence what SM2 testified was to the effect that, there was sisal bordering the appellant’s land with that of the respondent which was cut by the appellant and set on fire and there was a tamarind tree which was chopped down by the appellant. I have yet to see any contradiction(s) between the respondent’s testimony during hearing of the application with 5 that of his witness (SM2). Therefore, the first ground of appeal is devoid of merit. On the second ground of appeal, during hearing of the appeal the appellant herself submitted that indeed the opinion of the assessors was read at the Tribunal. This can also be seen at pages 17 and 20 of the typewritten proceedings of the Tribunal, that on 19.12.2023 the gentlemen assessors Farles Jacobo Mwenura and Ndola Masunga gave their opinions to the Tribunal and in the presence of both the appellant and the respondent. The Hon. Chairman also referred to the opinion of the assessors, which was unanimous, in his judgment at page 4 where it reads: “Nakubaliana na maoni ya wazee wa Baraza kuwa mdai ameweza kuthibitisha dai lake. Katika hali hiyo nakubaliana na dai hili na kutamka kuwa ardhi ya mgogoro ya ekari moja ni mali yake mdai na mdaiwa anatakiwa kuondoka katika ardhi hiyo.” This can be unofficially translated to: “I join hands with the assessors that the applicant has proved his claim. The same has been proved and I declare that the disputed piece of land measuring one acre belongs to the applicant and the respondent is ordered to give vacant possession” . In light of this, the second ground of appeal lacks merit as well. 6 The third and final ground of appeal need not detain us. The appellant is alleging bias by the Tribunal simply because the same decided the land application against her. This ground is devoid of merit and the appellant has failed to substantiate it. The Tribunal analyzed the evidence adduced by the respondent and the appellant before reaching its decision and the application before it was decided on merit. In the upshot the entire appeal lacks merit and I dismiss it with costs. DATED at SHINYANGA this 09th day of August, 2024. N.L. MWAKAHESYA JUDGE 7