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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO. 8479 OF 2024 (Originating from Land Application No. 24 of 2022, from the District Land and Housing Tribunal for Kyera at Kyera) MARY TRANS MWAKITALU……………..……………………APPELLANT VERSUS DANFORD KOROSSO………..………………….…………..RESPONDENT JUDGMENT Date: 30 August 2024 & 8 November 2024 SINDA, J.: The appellant is aggrieved and wishes to challenge the decision of the District Land and Housing Tribunal for Kyela at Kyela (the DLHT). The brief facts of the case are that the appellant claims ownership over land located in Katyongoli village, Kajunjumele ward, Kyela District within Mbeya region (the Disputed Land). She alleged that the Disputed Land was given to her by her father, one Trans Mwakitalu. The Disputed Land was under the 1 supervision of Daniel Mwakitalu, Trans Mwakitalu’s brother because of the mental state of Trans Mwakitalu and the appellant being away. Daniel Mwakitalu invited one Sekela Korosso to use the Disputed Land for agricultural use from 1998 until 2013 when she passed away. That is when the respondent entered the Disputed Land and started using it claiming ownership. The appellant unsuccessfully sued the respondent for trespass before the DLHT. Dissatisfied with the decision of the DLHT, the appellant brought this appeal on the following grounds: 1. That, the trial Tribunal grossly erred in facts and law to re-evaluate the evidence that what narrated by parties, before tribunal proceedings. 2. That, the trial tribunal grossly erred in fact and law to conclude that, the respondent being legal owner of the disputed 10 Hectors, from the bar of which was not defended by the respondent. 3. That, the trial tribunal erred in facts and law, for disregard appellant’s evidence, without good reason. 2 4. That, the trial tribunal erred in fact and law to decide on favor of respondent’s without any proof, than saying the land was under chief Korosso territory. 5. That, the tribunal erred both in facts and law. For failure to analyze and evaluate properly the evidence on record and resulted to a wrong decision. Hearing of appeal was by way of written submissions. The appellant was represented by Ms. Pamela Kalala, learned counsel. The respondent enjoyed the services of Mr. Joseph Mwainyekule, learned counsel. Arguing on the first ground of appeal, Ms. Kalala was of the view that Sekela Korosso was the one invited into the Disputed Land and not the respondent. That the respondent entered the Disputed Land after the death of his sister (Sekela). Ms. Kalala added that the respondent did not deny that the Disputed Land first belonged to the appellant’s father before it was owned by the appellant. Moving to the second ground, the counsel submitted that the respondent in his pleadings stated that the Disputed Land was of nine and three quarters acres. However, in defence together with his witnesses testified that the Disputed Land was ten acres. Ms Kalala faulted the DLHT for deciding that 3 10 acres belonged to the respondent while it was not stated in the respondent’s pleadings. Supporting her argument, she cited Order VI Rule 7 of the Civil Procedure Code, Cap 33 R.E 2019 (the CPC) and the case of John M. Byombarirwa vs. Agency Maritime Internationale (Tanzania Ltd), TCA 13 (1983) TLR. The learned counsel prayed to discuss the third, fourth and fifth grounds of appeal together. She argued that the DLHT disregarded evidence given by the appellant and her witnesses. Hence reached to an unfair decision. That, for instance, the trial chairperson disregarded that the Disputed Land was under the supervision of Daniel Mwakitalu, the elder brother of Trans Mwakitalu who invited the late Sekela Korosso. Ms. Kalala further argued that it was wrong for the DLHT to decide in favour of the respondent just because the Disputed Land was in the Korosso territory. She added that the respondent himself does not know where or how his father obtained the Disputed Land since he has no license or contract to prove the same. As such the appellant witnesses provided strong evidence. Ms. Kalala further insisted on how the appellant’s evidence was heavier than that of the respondent. She pointed out that the respondent’s 4 evidence is full of contradiction. The counsel was of the view that the DLHT ought to have neglected such evidence due to its inconsistency. She referred to the cases of Emmanuel Abraham Nanyaro vs Peniel Ole Saitabau (1987) TLR 47 and that of Hemedi Saidi vs Mohamed Mbilu (1984) TLR 113. In his reply submission, Mr. Mwainyekule started by arguing the third, fourth and fifth grounds of appeal. He stated that the DLHT decided in favour of the respondent because his evidence was heavier than that of the appellant. The counsel added that it was alleged that one Trans Joel Mwakitalu disposed the Disputed Land to the appellant by way of gift. That, since at the time Trans Joel Mwakitalu was of unsound mind then no good title was passed to the appellant. Thus the said transfer was void ab- initio. For emphasis, the counsel cited Section 12 of the Law of Contract Act, Cap 345 R.E 2019 (the LCA). Furthermore, the counsel opined that the evidence on record does not prove that the appellant was given the Disputed Land by her late father under the guardianship of her uncle, Daniel Mwakitalu. He argued that since Trans Mwakitalu being of unsound mind, in law he can only execute an agreement through a next friend or guardian. 5 On the first ground, the counsel termed the appellant’s evidence as unreliable. He was of the view that the said Daniel Mwakitalu had no capacity in law to invite Sekela Korosso to use the Disputed Property since he was not the rightful owner. That, even the appellant did not authorize the same to be done. Mr. Mwainyekule continued, that the appellant and her witnesses did not testify on how the appellant’s father acquired title over the Disputed Land considering that the Disputed Land is within the area of Korosso territory. With respect to the second ground, the counsel argued that the respondent’s evidence was in conformity to his pleadings. Regarding the size of the Disputed Land as argued by the opposite counsel, Mr. Mwainyekule submitted that the DLHT observed that they contested on the Disputed Land and that is why they did not visit locus in quo. Supporting his argument, the counsel cited the case of Gabriel Mathias Michael and Another vs. Halima Feruzi and 2 Others, Civil Appeal No. 28 of 2020 (Unreported) [TANZLII]. In rejoinder Ms. Kalala emphasized on the failure of the DLHT to properly evaluate evidence on record. Also, the records do not show that the appellant said the disposition of the Disputed Land was by way of gift from 6 Joel Mwakitalu to the appellant. Thus, the transfer to the appellant cannot be said to be void ab initio for reasons of lack of good title of the said Joel Mwakitalu. As it was evidenced by SM2, that during the disposition Joel Mwakitalu was of sound mind. She added that as per the pleadings the Disputed Land was under the guardianship of Daniel Mwakitalu, brother to Joel Mwakitalu. That, the appellant used to visit the Disputed Land and the respondent never disputed. The counsel further prayed for this court to ignore that issue on whether there was an agreement between Trans Mwakitalu and the appellant because it is new and should not be entertained at appeal stage. She provided the case of Ramadhani Msangi vs. Sunna G. Mandara & Two Others, Land Appeal No. 39 of 2017 HC Dar es Salaam [TANZLII] that cited the case of Farida & Another vs. Domina Kagaruki, Civil Appeal No. 136 of 2006 (Unreported) to support her argument. Ms. Kalala further argued that the respondent’s advocate departed from the adduced ground, by saying that the appellant’s evidence was unreliable for want of legality. The counsel submitted that, the appellant did not raise that ground, it is therefore an afterthought. 7 Ms. Kalala further added that the respondent failed to call the neighbors to the Disputed Land, hence failed to prove the facts he alleged. That, even the respondent does not know how his father got possession of the Disputed Land. After thorough discussion by both parties, I will deliberate on whether I find this appeal with merit based on laws, case laws and records of the DLHT. The most pertinent issue to be determined is: who is the rightful owner of the Disputed Land. As I commence my discussion, I will address the first, third, fourth and fifth grounds of appeal together. Since they all deal with evaluation of evidence. I do agree in civil cases the principle of “He who alleges must prove” is highly applicable. As provided Under Section 110(1) of the TEA and in a number of court decisions, such as that of Attorney General & Others vs. Eligi Edward Massawe & Others, Civil Appeal No. 86 of 2002 CAT (Unreported). However, there are some circumstances where both parties to a case are required to prove the facts that they allege. I believe this case is one of those circumstances. The matter at hand being of ownership and both parties claiming to be owners of the Disputed Land. The duty to prove the 8 case was not only bestowed upon the appellant who was an applicant at the DLHT, but it also extended to the respondent. In so doing, the principle that would rightly determine the matter is that provided in the case of Hemedi Saidi vs. Mohamed Mbilu (Supra). That is, the one whose evidence is heavier wins the case. During trial at the DLHT, the appellant brought witnesses to prove the Disputed Land was given to her by her father, Trans Mwakitalu. The respondent as well brought witnesses to prove his assertion. That the Disputed Land first belonged to his parents, Chief Rossi Korosso and Hellen Korosso. That, after their deaths, it was handed over to him and his sister, Salome Korosso. Basically, the law recognizes ownership of land that was given as a gift or transferred from a parent to a child. As it is the case for both the appellant and respondent. The same was explained in the case of Joachim Ndelembi versus Maulid M.Mshindo & 2 Others, Civil Appeal No. 106 of 2020 that stated; “Similarly, in the instant case, we have no reason of faulting the DLHT and the High Court in their concurrent findings that the land originally belonged to PW2 having acquired it from his late father and that 9 it is from him that the transfers of that piece of land began till it reached the first respondent.” At this juncture, a fact that is not doubtful is that the Disputed Land is found within the territory of Chief Korosso. As seen at page 10 and page 16 of the DLHT proceedings (the Proceedings), where both the appellant and her witness (PW2) admitted to this fact. After evaluation of evidence, it came to my knowledge that the appellant did not avail enough evidence to the effect that her father, Trans Mwakitalu, had a good title, or how he got possession of the Disputed Property in the first place. The evidence on record does not show what mode was used by Trans Mwakitalu to acquire the Disputed Land. Therefore, since it is uncertain how the late Trans Mwakitalu obtained the Disputed Property, it becomes rather hard for the appellant herein to prove ownership. The Disputed Land being in the territory of the late Chief Korosso, father to the respondent, that alone, coupled with testimonies from his witnesses, works in favour of the respondent. Moreover, until the conclusion of the trial at the DLHT, there was no evidence that suggested otherwise. 10 Ms. Kalala called this aspect to be irrelevant. In my opinion it was not irrelevant at all. It was one of the most important and crucial facts that was to be explained and proved. Mainly because the appellant is a foreigner to the Disputed Land, and was required to show that she was legally entitled to own the Disputed Land. It is trite law that one cannot claim ownership over a property without first proving the one who disposed it had a good title. The same was highlighted in the case of Kusekwa Nyanza vs. Christopher Mkangala, Criminal Appeal No. 233 of 2016, which provided at page 9: “In that regard, they had no good title over the plot which they could pass over to the respondent.” All said and done, I find myself agreeing with the findings of the DLHT. Also, I am convinced it reached its decision based on the adduced evidence and what transpired during hearing. I thus believe the respondent’s case was watertight compared to that of the appellant. Additionally, I do not agree with Ms. Kalala’s argument that the appellant’s evidence was disregarded. The DLHT judgment (the Judgment) clearly considered evidence by both the appellant and respondent. For instance, from page seven to eight of the Judgment, the DLHT pointed out 11 discrepancies and contradictions present in the appellant’s evidence. That being the case, the decision was met following the principle established in the case of Hemedi Said (Supra) stated above. With that, I am of a firm view that the Disputed Land first belonged to Chief Korosso. It was thereafter used by his wife, Hellen Korosso, after his death. Later on, it was given to the respondent by his mother before her death. Hence, based on the circumstances of the case, the respondent is the legal owner of the Disputed Land. I will briefly discuss the second ground, as its determination will not affect what I have already provided herein above. The counsel maintained that the respondent in his pleadings mentioned the Disputed Land to be nine and three quarters acres in size. But during trial, together with his witnesses stated the Disputed Land to be that of ten acres. As such, signifying contradiction in the defence evidence. Concerning the argument, I must agree with Mr. Mwainyekule that the parties are contesting over the same land. There was no evidence to propose the appellant and respondent herein were contending over two different pieces of land. The difference of measurement does not invalidate 12 the evidence of ownership. See: Gabriel Mathias Michael and Another vs. Halima Feruzi and 2 Others (Supra). In consequence thereof, I find no need to depart from the findings of the trial chairperson and do hereby uphold the decision of the DLHT. The whole appeal is devoid of merit and is hereby dismissed with costs. It is so ordered. Right of appeal explained. DATED at MBEYA on this 8 day of November 2024. A. A. SINDA JUDGE 13