20160902 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA ATMWANZA LAND APPEAL N0.17 OF 2015 (Application No. 3[! of 2011 in the District Land and Housing Tribunal for Geita at Geita} MASOLWA MAKOM·ELOa ..... ■ •• ■ I ■■ I ■■• ■ It ■ ■ I ! a ■■ ■■ l!l ■ II 11!1 • • ■■ •• I ■■ It·■■■■■■ .APPELLANT VERSUS SIENGEREMA MAGASHI ......................................... ... RESPONDENT Last Order: 14/07/2016 Judgment: 02/09/2016 JUDGMENT MAKARAMBA, J.: This Judgment is on appeal from the decision of the District Land and Housing Tribunal for Geita at Geita in Application No. 39 of 2011 before f".,. ,r;, - the Hon. Kitungulu Esq Chairman dated~Ot_t)January, 2015. Briefly, the SENGEREMA MAGASHI, the Respondent herein sued . ~Ii •.Ji'r.~ ~, .. MASOLWA MAKOMELO, the Appellant herein, .in the District Land and . . Housing Tribunal for Geita at Geita in Application No.39 of 2011 for recovery of the suit land encroached by the Respondent. The suit was decided in favour of the Respondent. The Appellant was dissatisfied with such decision and appealed it in this Court on three grounds namely; 1. That the Honourable Chairman erred in law and fact in deciding that the suit land belongs to the Respondent Page 1 of 8 2. That the Honourable Chairman failed to properly evaluate the evidence on record thus arriving at wrong decision. 3. That the Honourable chairman erred in law and fact in failµre to visit the locus in quo as there was uncertainty regard the proper location of the suit land. T_he Appellant prayed that the appeal be allowed with costs. In this appeal, Mr. Laurian, learned Advocate represented the Appellant and Mr. Mhingo learned Advocate represented the Respondent. In support of the appeal, Mr. Laurian argued the first and second grounds of appeal in seriatim as follows; the Respondent's evidence had some shortcomings, namely, failure to evaluate the evidence as to who sold the suit land to the Applicant, some witnesses mentioni_ng Mr. Misalaba; while the Applicant maintaining that he was sold the dispute land by five members of the Manyilizi family. PW2 stated that Misalaba Lutalasa is the one who sold the suit land. PW3 stated that, the Applicant bought the suit land from the family of Lubungula. In cross-examination PW3 mentioned Elias Zacharia as the one who sold the suit land. On his part, PW4 stated that the suit land was purchased from Manyilizi. Other witnesses say that, the sale was in writing, while others say that it was not. All these witnesses stated that, the total area of the purchased suit land was 100 acres; w_hile the Respondent said it was 200 acres; and other witnesses of the Respondent said it was 250 acres; while others maintained that it was 240 acres. According to Mr. Laurian, there is no single witness who explained the extent of the disputed land. located in a Page2of8 . '·i ., j Village Ngoma which borders Nyanchenche Village, where the Appellant and the Respondent reside. All the witnesses maintained that, the area was in Ngoma · Village which contradicts the testimony of the Appellant/Respondent who maintains that his area was 50 acres only located in Nyanchenche Village. There is o single witness of the Ngoma Village who stated if the disputed area extended to another Village, Mr. Laurian further submitted. Mr. Laurian submitted further that, it is surprising that the Chairman wondered of the extended area. The evidence of the Respondent/Appellant was very clear that, he inherited the 50 acres from his father who bought it since 1974. In 1980 the Village Government formalized the area by issuing a written document. The person who sold the disputed area to the Appellant's father also gave ~estimony. John Kaboje explained that, the area was 50 acres and located in Nyanchenche Village and that, they do not share boarders with the Manyilizi. Surprisingly, the trial Tribunal said that the evidence was wanting and maintained that those who witnessed the sale, all of whom had passed away, ought to have been . . called to testify. The Tribunal Chairman was surprised by the testimony of Mtaile Ward Secretary who testified as witness of he Respondent/Appellant, whose role was to establish in which Village the disputed land was located. The Tribunal wrote a letter dated 13/04/2011 to the Provincial Officer on the dispute. The Provincial Officer ·appeared and testified on the boundaries between the two Villages, showing that_ the location of the disputed area was Nyanchenche Village. In between the two Villages there is a road. The area of the Appellant is located on the Page 3 of 8 other side of the road, and there is no evidence that the Respondent crossed over to the other area/village. On the third ground of appeal., Mr. Laurian submitted that, aside from noting the uncertainty of the locus of the disputed land, the Tribunal · Chairman refused to visit the locus in quo despite being asked to do so. Given the nature of the dispute and the uncertainty of its locus, this would j have made the Tribunal Chairman to visit the locus in quo, Mr. Laurian .1 :1 further submitted and · added that, visiting the locus in quo would have made the Chairman determine if the Tribunal had jurisdiction given the size of the area if valued in monetary terms. Mr. Laurian prayed that the appeal be allowed and the Appellant be declared to be the lawful owner of land, which is the 50 acres, the Appellant obtained from his father,· In reply Mr. Mhingo submitted that, the evidence tendered at the Tribunal was sufficient to establish that the disputed area was that of the Respondent. Aside from the Respondent, PW2, Maneti Manyilizi who was. present when the Respondent sold the disputed area which initially belonged to the Manyilizi clan also testified. The area was sold by Misalaba lutalasa who did not come to testify, which sale was confirmed by the Village Government, Exhibit P1. PW3, Gulabi Mwendeisha, a member of the Land Allocation Committee of the Ngoma "A" Village was present when Sengerema was being confirmed the owner of the disputed area. Also PW4, Vicent Stefano was also present at the confirmation meeting. The evidence was therefore sufficient to establish how the Page 4 of 8 -= Respondent got the disputed area. The Appellant has not explained how he got authority to claim the land in dispute on behalf of his father. Mr. Mhingo submitted further that, the area of the disputed land is· ., 200 acres and his witness said 250 acres by estimation. According to Mr. Mhingo, the uncertainty on the size of the disputed area does not dispel the truth that Sengerema got the area. Exhibit Pl states that, it is 250 acres, which does not call for controversy. Lastly, PW2, Mtaita, in his testimony stated that there was a boundary dispute between the two villages which was resolved in 2009 and the disputed area remained in the Nyanchenche Village. Indeed if the boundary dispute ended in 2009 and the Appellant claims that he got the area in 1974 and confirmed in 1982, while the Respondent maintained that he was confirmed in 2000. Mr. Mhingo submitted further 'that, as per PW2, Mtaita, who stated that the suit land was a land reserve up to 2009 when the dispute ended; however the Appellant claims that, ~ince 1974 they have been cultivating on the disputed area. Mr. Mhingo submitted further that, the need to visit the locus in quo was critical aside from the evidence on record. In rejoinder, Mr. Laurian submitted that, the person who is claimed to have sold the area to the Respondent did not appear to testify. Exhibit Pl was objected to at the trial but still it was admitted in evidence. The Appellant has stated that, he inherited the disputed area and besides it is the Respondent who sued the Appellant at the trial Tribunal. Mr. Laurian D.."'\ .!J. 6-... . surmised that, t ~ the disputed ~e which i_s under cultivation is 40 ~ acres of the 50 acres and therefore there is no contradiction. Page 5 of 8 •:t,;:t:i----4 . ! • I C), On the arguments by the learned Counsel in support and rival to the appeal, the Judgment of the trial Tribunal and the evidence before the trial the Respondent (PW1) stated at the trial Tribunal that, in 2000 he bought the suit .land (250 acres) from Manyilizi Family by exchanging it with ten heads of cattle. The entire suit land was located at Ngoma "A" Village. The sale was approved and confirmed by the Village Government. The letter of approval from Ngoma "A" Village Government was admitted in evidence as Exhibit PE1. According to the Respondent, the Letter of Approval ( Exh.PEt} was signed and witnessed by Bulabo Ng'wamboku (the Hamlet Chairman at particular time), Vicent Stephano (the Member of the Village Land Allocating Committee at particular time) and others were currently deceased. Bulabo Ng'wamboku and Vicent Stephano were called by the Respondent to testify on th~ allocation, Bulabo Ng'wamboku as PW3 and Vicent Stephano as PW4, and all testified in favour of the Respondent, and PW3 recognized his signatures on Exhibit PEl. The Respondent stated further that, later on the boundaries ·between Ngoma Village and Nyanchenche Village were re-established and therefore the Respondent's land was sub~divided and are currently located · in two villages, partly in Ngoma "A" Village and partly in Nyancheche Village. On the part of the Appellant, he claimed that his late father (Makomelo Masolwa) bought the suit land (50 acres) from John Kaboja · by exchanging it with three sheep. In 1982 his late father was formally allocated the purchased land by the Nyanchenche Village. The Letter of Page 6of8 ------ f/0 Allocation by the Nyanchenche Village was admitted in the trial Tribunal as Exh.DE1. As per Exh.DE1 the allocation was witnessed by the following members, Stephano Bupilipili, Lusobangija Muhoja, Hamza Azizi, Luchapa Ngokolo and Abdalla Nyiga. As the trial Tribunal Chairman rightly noted, neither of those witnesses was called before the trial Tribunal to testify. The Appellant never stated before the trial Tribunal whether those persons were alive or dead and/or were their whereabouts. Apart from that fact, the Appellant called John Kaboji (DW4) as his witness. John Kaboji testified before the trial Tribunal that, he was the one who sold the suit land to the Appellant's father one Makomelo Masolwa. John Kaboji stated further that; on the material day they were only the' two · ·and no any other person witnessed the sale. I_t was not stated, why the sale agreement between the two was m~de in camera. Worse still, the said John Kaboji never stated wherefrom he obtained the suit land. This Courts finds further that, the question of visiting the locus in quo would not have served any useful purpose since both parties were in consens~s that, the boundaries of the two villages were re-established. After the re-establishment, the suit land is partly located at Ngoma "A" Village and Nyancheche Village. However, the dispute remains the same, who is the lawful owner of the suit land. Had the parties been referred to a separate and different land they could not have engaged in a dispute. The only pertinent issue for determination by this Court in this appeal is who was/is lawful owner of the suit land? Page 7 of 8 On the evidence ·before the trial Tribunal, this Court finds that, the evidence tilts more in favour of the Respondent. As such there is nothing for this Court to fault the decision of the trial Tribunal. The evidence which the Respondent adduced before the trial Tribunal in my considered view, was water tight for him to be declared the lawful owner of the suit. In the whole and for the above reasons, the appeal fails and it is hereby dismissed with costs. The decision by the District Land and Housing Tribunal for Geita at Geita Application No. 39 of 2011 is hereby upheld and confirmed. It is so ~-. ............,~ ~ , ord · ·- ~ ·, ·- ... /:.: ·· •••••■■ ma ■■■ a ■ R.V. MAKARAMBA . ,, JUDGE ·. · -~2Y~:- _>./· >"' .. Page 8 of 8 ·