MADARAKA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY) AT BUKOBA LAND APPEAL NO. 80 OF 2023 (Arising from the District Land and Housing Tribunal for Muieba at Muieba in Application No. 12 of2020) MADARAKA FUNDI.......... .................................................. APPELLANT VERSUS PROJESTUS KAMUGISHA.............................................. RESPONDENT JUDGMENT 15th October & 4th November 2024 KIWONDE, J. Before the District Land and Housing Tribunal for Muieba at Muieba, the respondent, Mr. Projestus Kamugisha filed Land Application No. 12 of 2020 claiming that the appellant trespassed onto his land. Upon conclusion of the trial, he was declared the rightful owner of the land in dispute and the appellant was declared as a trespasser; and the latter was ordered to vacate from the suit land. Aggrieved by the said decision, the appellant preferred the present appeal based on five (5) grounds of appeal as follows: 1) That the District Tribunal (sic) erred in law and facts to allow ownership of disputed land to applicant now respondent who 1 1 failed to show size of disputed land, thus vitiating the judgment not to be executed. 2) That the District Tribunal erred in law and facts not to admit written documents as evidence in violation of natural justice regarding the parties' equal right before law. 3) That the District Tribunal erred in law and facts to allow ownership to respondent the clan land without calling material witnesses. 4) That the District trial Tribunal erred in law and facts not to consider appellant's non-challenged adduced evidence and failed to compose it into judgment hence unfair decision. 5) That the trial tribunal erred in law and facts as the appellant's evidence was heavier than that of the respondent. The appellant asked this court to allow the appeal with cost, set aside the judgment and orders of the trial tribunal, declare the appellant the owner of the suit land, issue permanent order restraining the respondent, his agent to enter into his land and any other relief the court deems fit to grant. During hearing of this appeal, the appellant was represented by Mr. Pereus Mutasingwa learned counsel while the respondent was represented by Mr. Zeddy Ally learned counsel. 2 Arguing in support of the first ground of appeal, Mr. Pereus submitted that there was no proper description of the suit land as required by law. The counsel said the description is too general for it does not state the size, neighbours and boundaries. He cited regulation 3 (2) (b) of the Land Dispute Courts (The District Land and Housing Tribunal) Regulations, G.N No. 174 of 2003. Also, the counsel said under section 51 (2) of the Land Disputes Courts Act, Cap 216 (R. E 2019) where there is inadequacy in the regulations, then Civil Procedure Code, Cap 33 can apply. The learned counsel submitted that the said regulation is in pari materia with Order VII Rule 3 of the Civil Procedure Code, Cap 33 which requires land description to be proper and failure to do so is fatal and renders the application incompetent. To support this point, he cited the cases of Hamis Hassan Mkarakala Versus Paulo Mushi, Civil Application No. 590 of 2021[2023] TZCA 17265 and the case of Bakari Salum Matandika and 3 others Versus Andrea George, Land Case No. 34 of 2020. In arguing the second ground of appeal, the learned counsel submitted that the trial tribunal erred for failure to admit the appellant's exhibits. He was of the stand view that were rejected without any justifiable cause. The learned counsel argued that before the tribunal, the exhibits were rejected on the reason that they were not annexed to the pleading., but 3 under regulation 10 (1)(2), of GN No. 174 df 2003, the exhibits can be admitted without following procedures under the Evidence Act or Civil Procedure Code. Apart from that he submitted that the judgment concerning the parties, in Land Appeal No. 20 of 2019 was rejected to admitted as exhibit on the reason that it was not annexed to the application. He said this is the judicial document and as per section 59 of the Evidence Act, Cap 6 (R. E 2022) the court can take judicial notice. He contended that failure to take judicia notice deprived the parties right to be heard, a fundament right and he cited the case of Charles Christopher Humphrey Kombe Versus Kinondoni Municipal Council, Civil Appeal No. 81 of 2017 On the third ground of appeal, he argued that the trial tribunal erred for declaring the respondent lawful owner of the clan land while the respondent failed to call material witnesses to testify that he was given such land because the clan land is owned by the whole clan members. He submitted that, the respondent testified on how he was given such land by Elias Sindano, and other clan members such as Zephurine Elias, Celestine and Charles but none of them were called to testify but he only called one Thadeo Kaigarula who is not the clan member. According to him, this application was not proved and what the tribunal was required to do is to draw adverse inference against the respondent. To support this 4 point, he cited the case of Hemed said V. Mohamed Mbilu [1984] T. L. R 113. Concerning the fourth and fifth grounds of appeal, the learned counsel submitted that the tribunal failed to note that the appellants evidence was heavier than that of the respondent which act led to injustice on the appellant side. He said the appellant relied on the WILL, exhibit DI and this document was never disputed. He submitted that one of the witnesses who is Elias Sindano, who signed on it testified on how that farm was given to appellant in year 1979 and that his signature was never disputed. Apart from that the learned counsel submitted that, the respondent testified that Thadeo Kaigarula was there when he was given the land in dispute but the said Thadeo Kaigarula, mentioned different persons who are Pauline Marco and Zephania Kaigarula. According to him the said Thadeo agreed that the appellant was given the said land by his father. In reply to the submissions by the appellant, on the first ground of appeal, Mr. Zedy Ally, was of the view that the land in dispute was properly described to be located at Bisore village, Muhutwe Ward within Muleba District, and paragraph 6(iii) of the application, the respondent managed to explain the size of the land, to be 75 x 195 paces. He added that if the decree does not include the description, it can be rectified. To support 5 this point, he cited the case of Juvenary Butahe Versus Rudovick Leonidas and another, Land Appeal No. 74 of 2023, High Court Bukoba. On the second ground of appeal, the learned counsel submitted that the procedure of tendering documents was not followed and the chairman gave out his reasons for rejecting the said documents. He said that it was proper for the tribunal to refused to admit the judgment because the said judgment was quashed. The learned counsel was of the view that since this is the first appellate court it can invoke its powers and take judicial notice of it to see if the said judgment could add any value to the evidence. In response to the third ground of appeal, the learned counsel said that the respondent is the clan head and a member of the clan; and that clan land belongs to all clan members but the exception is where it is given to a person outside the clan and that is where the consent of the clan members is required. The learned counsel argued that during trial, the respondent failed to call the clan members to testify because all the witnesses who witnessed when the respondent was given the said land had already passed away. But Thadeo Kaigarula who is an eye witness and knew the land was there and that he was mentioned by PW1 to be present when the respondent was given an and eye witnessed when the respondent was given the land. 6 Regarding the WILL, the learned counsel submitted that for it to be used in court, it must be genuine and authenticated by the probate court; he said the respondents evidence was heavier than that of the appellant. Finally, in the fourth and fifth grounds of appeal, the learned counsel submitted that this has already been covered by the submissions on the first ground of the appeal. He prayed this appeal to be dismissed with cost. In rejoinder submissions, Mr. Pereus Mutasingwa said description of the suit property is important and it has to be in the application. He said the judgment which was quashed was to be determined when weighing the evidence. From the records and the submissions by the counsels, the issue for determination is whether this appeal is meritorious. Starting with the first ground of appeal, the complaint is that the description of the suit land was not sufficient making the decree inexecutable. But in the application before the trial tribunal, it was described that the land in dispute is located at Bisole Village at Muhutwe Ward within Muleba District and the evidence indicates that the land encroached is 75 paces width and 195 paces length. 7 At page 9 of trial tribunal proceeding, the respondent mentioned his neighbours to be Wendelin Cosma in the south and, Audax Rweyendela in West and Sebastian Isidory in north and the and the army in East. This description is sufficient to identify the land from others. As to the decree, if at all, it does not contain the description, the parties can seek rectification of the same by the trial court. So, this ground of appeal lacks merits. With regard to the third ground of appeal, it is said that material witnesses were not called to testify. But the reason given is that they are no more, they have passed away. So, it is apparent that they could not appear to give evidence. However, there are witnesses who testified for the respondent that the land belonged to the respondent. The appellant said he inherited the said land in dispute through a WILL of his father and he tendered it and admitted as exhibit DI. But it is silent on the location of the said land in dispute; therefore, it is difficult to know if it is the same land in dispute. It is trite law that he who alleges must prove that certain acts exist or not. The standard of proof in civil cases is on the balance of probabilities. In the present appal, the parties are at fierce contention on ownership of the said land in dispute. 8 The evidence on record shows that the appellant inherited the land from his father through a Will. Just as I have said above, this document was not useful for failure to state the location of the land. The witness, DW2 one Dominic Damaseni Kasigya said on 24.03.2020 while at the village office he heard /7po/77<?and he was told they went to set boundaries to his farm but they were informed that the land belonged to the respondent, one Projestus. Whereas, the respondent established that he was given the land by his grandfather in the year 1979 in the presence of Zephrine Elias, Selestine, Charles Elias, Thadeo Kaigalula and Winfrida Charles. He stated that the neighbours to his farm is Wendelin Cosma in south and West, Audax Rweyendela and Sebastian Isidory in north, in south the respondent and the army in East. The respondent also stated the size of his land to be 195 paces height and 75 paces width. To prove the said ownership the respondent called PW2 Thadeo Kaigalula who testified that the respondent possesses the land at Muhutwe ward at Eibanga Hamlet and he obtained it from his grandfather one Elias Sindano and that the appellant is his neighbour. Apart from that also PW3, Paulin Marco was called upon to testify, she stated that the land in dispute is the property of respondent as he was given by his grandfather. For that matter, the respondent managed to prove ownership of the said land in dispute. His 9 evidence was heavier that of the appellant. This ground of appeal lacks merit. Regarding the refusal to admit the appellant's exhibit, records show that the tribunal gave out the reason on why the said exhibits were rejected. Its reason is that the appellant failed to follow the admissibility procedure under regulation 10 of G.N No. 174 of 2003. The said regulation is clear that the tribunal may, at any stage of proceedings before the conclusion of hearing receive the documents which were not annexed to the pleadings without necessarily following the practice and procedure under the Civil Procedure or the Evidence Act. But after ensuring that a copy of the document is served to the other party. The appellant did not attach the said document to the defence and did not serve the other party then it was proper for the tribunal to reject the said exhibit. Therefore, this ground of appeal is short of merit. In totality, the respondent's evidence was heavier than that of the appellant. In law, the court of law or tribunal has to decide the matter before it based on the evidence which is heavier than the that of the other party. This position was elucidated in the decision in the case of Hemed said V. Mohamed Mbilu [1984] T. L. R 113. Therefore, the fourth and fifth grounds of appeal are also unmerited. io From the foregoing observation, the appeal lacks merits and it is hereby dismissed with cost. The decision of the trial tribunal is hereby upheld. It is so ordered. Dated at Bukoba this 4th November 2024. F. H. KI ONDE JUDGE 04.11.2024 Court: Judgment delivered in chamber in the presence of the respondent, Grace Mutoka but in the absence of the appellant this 4th November 2024 and the right of further appeal is explained. DE JUDGE 04.11.2024 li