Masunga Emmanuel Masunga vs Mitanda Ndakama Gashinje

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SUMBAWANGA DISTRICT REGISTRY atsumbawanga (LAND DIVISION) LAND APPEAL NO. 41 OF 2023 (Originating from District Land and Housing Tribunal for Mpanda^Mpanda in -,-r Land Application no, 70 of 'XT MASUNGA EMMANUEL MASUNGA............ X..... APPELLANT

VERSUS MITANDA NDAKAMA GASHINJE..............;......:.;.......X.......... RESPONDENT 'X'X. IT JUD^MErg' MWENEMPAZI, J. X X f zi. । ’ ( .•; •<< j.?.1>' a•. ■>1'■:'<f-, ''i’ \•:,.X■ 'Ii; v£• • i' : > > ’•t This is an appeal by the appellant against the decision of the District Land and Housing Tribunal (Hon. G. K. Rugalema-Chairperson) date 29th September, 2023 whereby the respondent was declared the rightful owner of the dispute land which is 4.5 acres located at Mlangommoja Hamlet, Kasekese Village bordering Mwanachoma on the south and East side; Mlembondero on the North side and Kulyakunoga on the West. i In the impugned decision, the trial Tribunal chairman made the findings assigning as reasons for decisions that the appellant during his purchase of the dispute land knew that the owner of the land is the respondent herein. In the firm view of the trial tribunal Chairperson, the seller of the land was not the owner of the land. The appellant herein named is not satisfied bythedecisionof the District Land and Housing Tribunal. He has filed four grounds of appeal which are as follows: .... Wy..

1. That the learned chairman erred jn law. and fact by deciding the yhi'S Wfe., application in favour of the Respondent who did not prove the disputed land to be his property.

2. That the learned chairman erred in law and fact by deciding the application in favour of the Respondent without summoning the important witness who is the family member of the Respondent to prove that the sold property was under the capacity of the Respondent; 3. That the learned chairman erred in law and fact in deciding the Application in favour of the respondent depending on the misappropriation that the purchase by the Appellant was not approved 2 by the Village Council while worse still the respondent did not tender any document to either vitiate his purchase from one Dismas Damian Gasto (SM-2) or accomplish the need of the law that any land sale the Village should comply with the Village Council Approval.

4. That: learned chairman erred in law and fact departing from the tribunal Assessors decision without any just cause.; At the hearing of the appeal, the appellant was absent, however, his advocate was present. The appellant was being represented by Mr. Gadiel Sindamenya, learned Advocate. The respondent was absent and by order of this court hearing was ordered to proceed in absence of the respondent, In the submission, the counsel for the appellant, Mr. Gadiel Sindamenya, learned Advocate has stated that in this appeal they have filed a memorandum of appear with four grounds. He informed this court that he will submit on all of them On ground 1 of appeal the counsel submitted that the chairman erred to decide the way he did because the respondent failed to prove the case to the balance of probability. The respondent did not tender any evidence in writing. On paragraph 2 of page 2 of the proceedings in the trial tribunal the respondent said he bought the farm from Baba Wawili. But the person who testified is Dismas Damiani Gasto. The counsel submitted that submit 3. that these are two different persons. He erred to award him the farm without there being evidence to prove that he is the owner. On ground 2 of appeal the Counsel for the appellant submitted that an important witness was not called, the person who sold the farm. The appellant bought the farm before witnesses

including the village leadership. The appellant tendered a written evidence exhibit Nd;; 1 the chairman erred by believing the respondent. W On ground 3 of appeal the counsel for the appellant has?submitted that the chairman erred to award the respondent ownership of the dispute land while purchase was not verified by the village leadership. It was an error to believe on words only without considering the appellant had evidence in written form and endorsed by hamlet leader. ;? On the 4th ground, the counsel for the appellant submitted and faulting him for not following, the opinion of assessors. Assessors opined that the appellant had a more, probable case than the respondent; more so reasons were not adduced. ? "t? > Based on the above grounds of appeal the counsel submitted that they are praying for an appeal to be allowed and declaration that the dispute land belong to the appellant and cost follow event. I have read the record as well as heard the submission made by the counsel for the appellant. The question is whether the appeal is meritorious as to allow it as prayed by the counsel for the appellant. The core of the dispute is the landed property size is alleged to be four and half (4.5) acres by the appellant. The appellant allege he bought the said 4 farm from the child of the respondent whose name is Milimbe Mitanda Ndadana. In the evidence, he adduced in the trial

tribunal he said he bought three (3) acres. The said farm originally was being owned by Dismas Damiani Gasto (SM2). When the respondent testified in the Tribunal, the appellant questioned whether the respondent knew that there was a debt. When the said SM2 testified, the appellant did not cross-examine the him on the facts that he sold the farm, 10 acres to the respondent. The appellant in his testimony testified that he bought the dispute farm from the respondent's child. He bought three (3) acres. Now, the question is whether a good title may pass to the person who is> not the owner of the property. It is clear to all, even the counsel fbr^thpeuapplellant that only the owner can sell the property and the title pass to the purchaser. ; At the hearing the appellant testified that, I quote: "shamba niliuziwana mtotowamuombaji, na nilifuata ngazi zote, kufuata kitongoji, pamoha na majirani wanaozunguka hilo ? eneo. Baada yah apo nilipewa hati ya mauziano." Obviously, despite the fact that the appellant followed all the procedure it is legally not proper to say he earned a good title. Nothing passed to him. The appellant has made an attempt to challenge the testimony of Dismas Damian Gasto. However, during the hearing the appellant did not cross examine the * witness on the fact that sm2 sold to the respondent ten (10) acres. In law, failure to cross examine a witness on an

important matter implies acceptance 5 of the matter. In the case of George Maili Kemboge vs Republic (Criminal Appeal No. 327 of 2013) [2014] TZCA 203 (30 October 2014) it was stated that: "The legal position on failure to cross-examine, is as was stated by the Court in the case of Damian Ruhele {supra), where the Court observed: vA "It is trite law that failure to cross- examine a witnessonanimportant matter ordinarily implies the acceptance of the truth of the witness evidence." See also this Court's decision in Athanas Kibogoyo v RCriminalAppeal No.88.ofl992 (unreported)," The appellant has challenged the decision that important witnesses were not called to testify. It is the position of law that there is no specific number of Witnesses to prove a fact. Section 143 of the Evidence Act, Cap. 6 R.E.2022 provides that: 6 "Subject to the provisions of any other written iawf no particular number of witnesses shall in any case be required for the proof of any fact." Under the circumstances, the fact that the witness was not called does not, in this situation, change the outcome. That the appellant did not buy the dispute land from the owner. : As to the departure from the opinion of the assessors, the trial chairman in 'o-'t’V.: ”7 - . . ■£’ -u: -. my opinion followed the position of the law as to the transfer of landed properties. The vendor was not the owner of the land. The

chairman stated thus: "nimezingatia maoni ya wajumbe na hata hivyo natofautiana na maoni ya wajumbe kuwa pamoha na nyaraka kuonesha mjibu maombi alinunua, haikuwa wazi kama muuzaji alikuw mmiliki." Therefore, in my opinion, the trial tribunal chairman did advance the reasons for departing from the opinion of the assessors. For the reasons, I find there are no sufficient and cogent reasons to depart and or interfere with the findings of fact and law of the trial tribunal. 7 Therefore, I find this appeal has no merit and proceed to dismiss it with costs. It is ordered accordingly. Dated and signed at Sumbawanga this 27th day of August, 2024 'J.' ' T.M. MWENEMPAZI

JUDGE Judgment delivered this 27th day of August, 2024 in the judge's chamber in the absence of both parties. The counsel for the appellant was notified and he could not enter appearance. 8