20160909 TZHC Mwanza2

IN THE HIGH COURT OF TANZANIA '\J IN THE DISTRICT REGISTRY ATMWANZA MISC. LAND CASE APPEAL NO. 63 OF 2015 (From the Decision of the District Land and Housing Tribunal of Musoma District at Musoma in Land Case Appeal No. 134 of 2013 and Original Ward Tribunal of Nyankanga Ward in Application No. 22 of 2012) MAGO RI NYAN DON GE ------------------------------------ APPELLANT VERSUS SIMON MANTO ----------------------------------------- RESPONDENT JUDGEMENT Ebrahim, J.: The appellant had initially sued the respondent at the Ward Tribunal of Nyankanga on Land Case No. 22 of 2012. The appellant claimed .at the Ward Tribunal that the respondent invaded into her land and uprooted sisal plants that were put as borders. She called two witnesses to support her claim. Responding to the claim at the Ward Tribunal, the respondent evidenced tt'lat he inherited the disputed land from his father who owned the same since 1974. He called one witness to support his claim. The Ward Tribunal heard evidence from both parties, visited locus in quo and entered judgement in favour of the respondent. The appellant was aggrieved. She 1 filed an appeal at the District Land and Housing Tribunal which upon going through the evidence on record and also visiting locus in quo, upheld the decision of the Ward Tribunal. Aggrieved again, the appellant lodged an. appeal to this court raising four grounds of appeal which she .is basically complaining that; the respondent trespassed in 2012 and has not lived in the ·disputed land for 15 years as claimed; and that the respondent did not produce any documentary evidence to prove his case. At the hearing of the appeal the appellant who appeared in person adopted her grounds of appeal. She told the Court that the respondent's family moved in the area in 1974 while her husband moved into the area in 1962. Therefore the respondent encroached· into their land by 2 acres. Replying to the submission by the appellant, the respondent who was also unrepresented prayed to adopt his reply to the grounds of appeal. He stated before the court that, it is true that they started using the land since 1974.He stated also that the Ward Tribunal and District Land and Housing Tribunal visited locus in quo and decided in hisfavor. In rejoinder, the appellant countered the argument by the respondent that he started using the. land in 1974. She stated that respondent started to use the land in 2012 when her husband died. The facts of this case are clear.· The appellant claimed at the Ward ·. Tribunal that the respondent invaded into her land and uprooted the sisal plants that were planted as borders. When she was cross examined at the trial Tribunal she said that the respondent in year 1974 was given a plot but not a farm. When further replying to the questions put before her she 2 replied that the respondent invaded in 1994. Submitting before this court she first said that the respondent started to use the land in 1974 and in V rejoinder retracted and said that he started using the land in 2012. Both witnesses of the appellants did not have much to say rather than the land is theirs but do not know the size of the land and which area exactly the respondent was allocated. SM3 one Boniphace Mwita admitted before the trial Tribunal that he. does not know when the respondent invaded their land. He also admitted that the only used the land when their father was alive and then the stopped. The respondent on the other hand evidenced before the trial Tribunal that he inherited the l~nd from his father who has been using the same since 1974. He called one witness Waryoba Manti who evidenced that the respondent's family are neighbors and they have been living in the area since 1974. The disputed land is un-surveyed area hence strong evidence to substantiate ownership is needed by a party to exclude the other. Both lower Tribunals visited locus in quo and were of the view that there was no any evidence to prove that the sisal plants were uprooted. Infact what they found were sisal plants that were there for a long time used as boundary. Further, both Tribunals upon evaluation of evidence were of the view that the respondent has been in occupation of the disputed land for more than 12 years hence he is entitled to the land. The appellant is claiming that the respondent only invaded ·in year 2012 and that was when she uprooted the sisal plants. Nevertheless, she 3 also admits that the respondent has been there since 1974 and that by .. then she was not yet married to her late husband. She says that she knows v her husband to be on the land since 1962. However there was no any other evidence that she produced to substantiate her argument. Considering that was the one who asserted that argument, she had a duty a duty to prove the same. A mere assertion without strong proof is not enough. It is the position of the law in a civil case that "he who alleges must prove" - See the case of Attorney General & Others V Eligi Edward Masssawe & Others, Civil Appeal No 86 of 2002,CAT (unreported). The appellant is also complaining that there was no any documentary evidence from the respondent while even she had none and they both depended on the strong evidence and testimonies of their witnesses. More importantly like I intimated earlier, both Tribunals found out that there was no such thing as uprooted sisal plants. Indeed from the evidence on records, the evidence of the respondent was much tighter than that of the appellant. I refer to the case of Hemedi Mbilu [1984] TLR 113 at page 116], which heldthat a person whose evidence is heavier that of the other is the one who must win. Another_ case is Kefreni Mahula& Another Vs. Kabika Zilihona HC. Land Appeal No. 37 f 2011 at Mwa~za (Unreported) where Mruma, J. was of t~e view that; ''Like the chairman on the evidence on recor~ I am inclined to believe the respondent's evidence as being nothing but the truth. The evidence adduced by the respondent at the Trial was much far heavier and worth than that of the appellants" 4 From the above background,. I find no reason to part with the findings of the lower tribunals. I subscribe to the principle held in the case of Leonard Zedekia Maratu V Republic, Criminal Appeal No.86 of 2005, where Court of Appeal held that; "The general rule is that an appellate court should not disturb concurrent findings of facts unless it is clearly shown that there has been a misapprehension of the evidence/ a miscarriage of justice or a violation of some principle of law or practice// I see no any misapprehension of the evidence or violation of principles of law or practice by the lower tribunals in this case. Consequently, I find that all four grounds ( 4) grounds of appeal lack merits. I uphold the decision of the trial tribunal and the appellate tribunal. Accordingly, this appeal is dismissed with costs. Ordered accordingly Judge Mwanza 09.09.2016 5