magabira nyamsarya vs geriga mtaka 2011 tzhc 2138 21 june 2011

IN THE HIGH COURT OF TANZANIA AT MWANZA MISCELLANEOUS LAND CASE APPEAL NO. 24 OF 2007 (From the Decision o f the District Land and Housing Tribunal o f Musoma at Musoma in Land Appeal No. 153 o f 2006 and Original Ward Tribunal o f Kibara Ward in Application No: 15 o f 2006) MAGABIRA NYAMSARYA................. APPELLANT Versus GERIGA MTAKA.........RESPONDENT JUDGMENT 22/3/2011 & 21/6/2011 NYANGARIKA J. The respondent unsuccessfully brought an action in the Ward Land Tribunal seeking to recover from the appellant a piece of Land which is alleged to belong to his deceased's son one Steven Geliga, upon which it is alleged that it was leased to him by the respondent's son called Steven Malekela. Thereafter, the respondent appealed successfully to the District Land and Housing Tribunal of Musoma at Musoma (hereinafter to be referred to as the Appellate Tribunal). The appellant has being aggrieved by the decision of the appellant Tribunal and now he has preferred the present appeal to this court with 3 grounds of appeal. At the hearing the appellant was represented by Mr. Bantulaki learned Counsel but the respondent did not appear after being served and therefore the appeal was heard in his absence,. Mr. Bantulaki, submitted that the Chairperson of the appellate Tribunal misdirected himself in applying the doctrine of adverse possession on the Suitland as there was enough proof that the disputed Land/premises had Landlord and Tenant arrangements. The Learned Advocate was of the view that since the respondent failed to prove that she purchased the suit Land from Marekela Nyachemu and there was proof that the relative of the deceased sold it to the appellant, then, I should conclude that the respondent had leased the said suit land only from the late Steven Marekela. Finally, the learned Counsel invited me to allow the appeal by quashing and setting aside the Judgment of the appellate Tribunal and restoring the decision of the Ward Tribunal. On my view, there is no dispute that both Steven Marekela and Steven Geliga are deceased. There is also no dispute that originally, the Land in dispute belonged to the late Marekela Nyachemu and that the late Steven Marekela was his son. Further, there is no dispute that the late Steven Marekela allowed the late Steven Geliga to occupy and built a house in the Land in dispute.There is no dispute also that after the death of the late Steven Geliga, his wife, one, Joyce Steven continued to occupy the house in the Land in dispute todate. The only dispute between the parties is whether the land in dispute was given to the late Steven Geliga for lease or absolute. The family of the late Marekela Nyachemu and the appellant said that the Land in dispute was leased to the late Steven Geriga by the late Steven Marekela but the Respondent says that it was given to him absolute. I have gone carefully on the evidence on record and its apparent that the testimony of all the witnesses were not on oath. The appellant apart from testifying himself he also called one witness, Misana Mkama. The summary of the evidence of the appellant is that his son, the late Steven was given the Land in dispute by the late Steven Marekela and had built a house where he has been staying with his wife, Joyce Steven, todate. His witness, Misana Mkama, told the Ward Tribunal that on 9/7/2006 around 7.00 am, he witnessed bricks being pilled up near the house in dispute where the village chairperson of Namalere directed the respondent to remove them. On the part of the respondent, he claimed that he purchased the Land in the area in dispute from the late Marekela Nyachemo in 2006. The evidence of the respondent was supported by the children of the late Marekela Nyachemo, who are Rebecka, Damari and Thabita. Also it was supported by the evidence of Josephat Bwire Mborwe and Babunes Nyamsarya. In measuring the eight of evidence in a case as the present one, it is not, however, the number of witnesses whom a party calls on his side which matters. It is the quality of the said evidence. In this connection, the evidence of a single witness may be lot heavier than that of hundred witnesses. It is to this issue of the weight of the evidence in this case that I now turn. There is no proof on record as to the holder of letters of administration of the estate of the late Marekela Nyachemo, Steven Marekela and Steven Geliga, and therefore even the alleged sale transaction between the appellant and the children of the late Marekela Nyachemo is questionable. Also the names of the appellants which appear in the record are confusing. He appears in the names of Magabira Nyamusarya, Justine Nyamusanya and Justine Nyamsanya Mwikoleji. There was no clarification on oath given on the variations of these names on record. Further, there was no documentary evidence tendered and tested before the Ward Tribunal to support the appellant's allegations that he purchased the suit Land and that the late Steven Geliga has leased the suit Land for building a house for business purposes. It was just mere allegation which evidentiary value is weak. That's why the learned chairperson of the Appellate Tribunal departed with the opinion of the lay members on the matter. There is no dispute that the late Steven Geliga left behind his wife one Joyce Steven, Geliga with five children living in a house at the suit Land todate. 4 In the case of Tasianarce Rutashoborwa v. Typhorn Rutashoborwa and Boniface Kyamwangile [1998] TLR 96(HC) my brother, the late Munyera J, held, interalia, that, in case where the interests of children are at stake because of their father's recklessness, they should be given assistance. In this case, the late Munyera J, found that although there was no appeal filed to the District Court from the primary court this court may assume the position of the District court. The Judge therefore proceeded to declare that the sale of the suit Land was not absolute in order to enable the children to remain in the suit Land. The said Judge further held that there was no need even for the wife who was having custody of the children to appeal to the District Court for redress but said that the Judge may assume the position of the District Court for the benefit of the children. In our case at hand, the person whose evidence is heavier than that of the other is the one who must win as it was held by this court in the case of Hemedi Said v. Mohamed Mbiti [1984] TLR 113 (HC) The record show that no documentary evidence was tendered and tested before the Ward Tribunal by the appellant to establish the alleged sale transactions of the suit Land which is now occupied by the wife of the late Steven Geliga. It was just a mere allegation from witnesses which evidentiary value is very weak. Therefore the occupation of the suitland by Joyce Steven Geliga, as the wife of the late Steven Geliga was not at all challenged by the appellant and his witnesses. With respect, I am In agreement with the chairperson of the Appellant Tribunal on invoking the doctrine of adverse possession in favour of the wife of the late Steven Geliga. It is an elementary principle that he who alleges is the one who is responsible to prove his allegations. The appeal therefore fails. I dismiss it. K.M. KYANGARIKA JUDGE Delivered in the presence of Mr. Bantulaki learned Counsel for Appellant and also in the presence of the respondent in person. Right, procedure and time of appeal fully explained. At M wanza 21/ 6/2011 6