maiko kipoto vs mary daudi 2023 tzhc 19309 28 july 2023

IN THE HIGH OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA MISC. LAND APPEAL No. 09 OF 2022 (Originating from Karema Ward Tribunal No. 116/2021 and Land Appeal No. 30/2021 of the District Land and Housing Tribunal for KataVi at Mpanda) MAIKO KIPOTO..................... ..................................... APPELLANT VERSUS MARY DAUDI................. ....... .......................... .......RESPONDENT JUDGMENT 14/06/2023 & 28/07/2023 MWENEMPAZI, J.: Land disputes can trigger serious conflicts/ and their expeditious resolution can ease tensions. The present appeal originates from Karema Ward Tribunal before which the appellant herein had sued the respondent named above claiming that the latter has invaded his land. After hearing the parties and their respective witnesses, the trial tribunal held that it was the respondent who proved on balance of probabilities to be lawful owner of the disputed land. i According to the trial tribunal, the respondent proved before it to that she had lawfully bought the disputed land in 2016 from one JACKSON KACHELE JAILOS who was also her witness during the trial. The trial tribunal further held that, the respondent summoned witnesses who witnessed the sale, and that she tendered an exhibit which is the sale agreement between her and the seller (supra) and it was endorsed by the hamlet chairperson's seal who also witnessed the sale, hence the respondent was at the end declared victorious. The trial tribunal ordered all the crops found within the disputed land should be harvested within 45 days and that the disputed land should remain bare and under the lawful ownership of the respondent herein. The appellant was not satisfied with the trial tribunal’s decision. He appealed to the; District Land and Housing Tribunal of Mpanda which upheld the Ward Tribunal's decision. Still dissatisfied, the appellant appealed to this court with the following grounds of appeal:- 1. That, the Appellate Tribunal erred at law by deciding in favour of the respondent on the pretext that the Appellant Sale Agreement was not endorsed by the Karema Village Authority forgetting that the Sale 2 Agreement was entered before the Village Land Act Cap 216 R.E. 2019 became operational. 2. That, the Appellate tribunal erred at law by deciding in favour of the respondent thereby disregarding long occupation of the Appellant over the suitland which commenced on the 1st of May 2000. [Adverse Possession]. 3. That, the Appellate Tribunal erred at law by deciding in favour of the respondent whose Sale Agreement which she produced before the Ward Tribunal did not mention acreage of the land she purchased. 4. That, the Appellate Tribunal erred at law by deciding in favour of the respondent who failed to point the demarcations/boundaries of the suitland. Whereas, the appellant prays for this court to allow his appeal with costs. When the ..parties were invited to argue the appeal, as it was conducted via video conference facility, both parties appeared unrepresented. The appellant submitted first that; he prays his grounds of appeal be received. He clarified further that, first his sale Agreement had a list of witnesses who were able to verify the borders in 2000. Secondly, 3 that the Sale Agreement tendered by the respondent does not show the size of the land which was sold to her. Thirdly, that the Hamlet Chairman wrote the sale agreement at home and he never observed the farm and it had a general statement that the respondent bought a. farm. Lastly, the appellant claimed to be the rightful owner of the land until recently as he possessed the land for 23 years. In responding, the respondent submitted that the farm she bought she was at first hiring it. That, the owner of the farm decided to sell the land to her, and that the appellant had other farms bordering the owner of the disputed farm but the appellant had said to her that she has bought the farm, he will take it from her and that he stopped her from visiting it. In rejoinder, the appellant submitted that, the piece of land in disputed he has occupied it for 23 years and that the respondent was coned and that she has no clear description of the land in dispute. The determinative issue in the present appeal is whether the two tribunals below properly evaluated and assessed the evidence adduced before the trial tribunal. As hinted earlier in this judgment, it was the trial tribunal's holding that the respondent had proved to have bought the suit land from one 4 JACKSON KACHELE JAILOS who also testified before the trial tribunal in her (respondent's) favour. The trial tribunal also admitted in evidence the sale agreement of both parties but considered only the respondent's sale agreement by declaring it valid as it is endorsed by the hamlet chairman while the sale agreement of the appellant had no any endorsement from a local leader, and therefore it decided in favour of the respondent The first appellate tribunal re-evaluated the evidence adduced before the trial tribunal and came to a conclusion that the .respondent's evidence was heavier than that of the appellant. The learned Chairperson referred to the efforts of the appellant in attempting to prove the ownership of the suitland, and the salp' agreement he . tendered, whereas, the learned Chairperson ruled that, the agreement was void as it had no endorsement of a local authority, and that the failure of the appellant to summon witnesses who will corroborate his testimony made his evidence weak as compared to the evidence of the respondent who tendered a sale agreement which was endorsed by a local hamlet Chairperson and also she summoned witnesses such as the seller (supra) who testified in her favour, hence the decision of upholding the trial tribunal's decision was inevitable. 5 Indeed, the trial tribunal's record indicates through the testimonies of all the people who were summoned in the trial, that both (the appellant and respondent) have farms at the area of dispute, and this is revealed in cross examination of every witness particularly the respondent's witnesses. See pages 10, 11, 15 and 21 of the handwritten proceedings of the trial tribunal. Nevertheless, in the entire proceedings, only the appellant had submitted that he had inherited 8 acres of land from his late father and later on in the year 2000 he bought another piece of land measured 51/2 acres from one person known as SIMON KAPESA. In addition, his sale agreement though not indorsed by a local authority leader also depicts the actual size of the land he bought from the said SIMON KAPESA. On the other hand, neither the respondent nor her witnesses did testify the actual size that she had bought from her seller (supra) See pages 11. of the handwritten trial tribunal's proceedings. To top it up, the seller himself stated that he doesn't know the actual size of the land he sold to the respondent, See page 16 of the handwritten proceedings of the trial tribunal. Even worse, the sale agreement which wastermed to be valid 6 by the two lower tribunals also did not prescribe the actual size that the respondent had bought. See exhibit date 11/2/2016. To me, this is awkward and impossible. In the year 2016 civilization had penetrated every corner of this earth, it is not possible that a person would sell his farm without knowing the actual size and just rely upon the demarcations/boundaries of the farm. I am troubled to understand how was the value of the farm being considered if no one knows the actual size and depend upon demarcations/boundaries. In the case of Nazimin Mohamed Rwambo (Administrator of The Estate of The Late Mohamed Shaweji Rwambo) vs Maulid Tagwa & 4 Others (Land Case Appeal No 109 of 2020) 2021 TZHCLandD 6862 (21 December 2021), the learned Honourable High Court Judge was of the view that; "The appellant was required to give sufficient description of the disputed land for instance the size of the suit land to know whether or not the suit land was subject to litigation and to identify the properties in dispute so that if a Decree is passed concerning it, it shall be unworkable. Additionally, it was important for the appellant to give 7 sufficient description of the size of the plot to determine whether the respondent trespassed into the late Mohamed Sha weji R warnbo's plot or not" [Emphasis is Mine] I do agree with the holding of my dear learned sister Honourable Judge (as she then was) A. Z, Mgeyekwa that, the decision of the trial tribunal and that of the first appellate tribunal were tainted with irregularity as both tribunals decided in favour of the respondent who failed to fully describe the land she bought as far as size is concerned, whereas on the other side, the appellant had fully described the land he had inherited from his late father to be 8 acres and the land that he bought was 51/2 acres which are adjacent to the land he inherited. In that I choose to differ with the findings of the lower tribunals, that full description of the land in dispute would have resolved this matter harmoniously. In my analytical consideration, only the 3rd ground of appeal sufficed to dispose of this appeal, and I find no need to deal with the other three grounds of appeal as filed by the appellant, as I am fortified that the two tribunals below did not evaluate and assess properly the evidence adduced before the trial tribunal. 8 For the foregoing reasons, I do allow this appeal. Consequently, I quash and set aside the decision and decree of the first appellate tribunal which upheld the trial tribunal's decision. I order an immediate retrial of the matter whereas the respondent has to fully describe the land she had bought. I make no orders as costs. It is so ordered. Dated and delivered at Sumbawanga this 28th day of July, 2023. 9