MATIKU WEREMA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY [AT MOROGORO] LAND APPEAL NO. 10497 OF 2024 {Originating from the decision ofthe District Land and Housing Tribunai for Morogoro in Land Appiication No. 09 of2022) MATIKU WEREMA - - APPELLANT VERSUS SHEMNDOLWA A. NCWAMBUGHUNI .....RESPONDENT JUDGEMENT 15/7/2024 & 30/7/2024 KINYAICA, X This appeal traces its origin from the decision of the District Land and Housing Tribunal at Morogoro hereinafter the "Tribunal" in Land Application No.9 of 2022. The suit was founded on the appellants alleged trespass of one acre out of 30 acres of land located at Miali within Manza Village in Mvomero District within Morogoro region hereinafter, the "land in dispute". According to the pleadings filed before the Tribunal, the respondent claimed to be the lawful owner of the land in dispute alleging tl iat he was allocated the same by the Manza Village on 1999 after he made an appiication to the village to be granted the same on 1998. He complained that the appellant invaded the land in dispute in 2021 and cut down his 1 trees. The appellant denied the claims asserting that the land In dispute belongs to the Village of Manza and not the respondent. He contended further that the Village of Manza certified that the land In dispute is a reserved land for Manza Village as a Village Forest Park and thus, not owned by either of them. At the height of the trial, the Tribunal was satisfied that the respondent had discharged his burden of proof warranting judgment in his favour and thus it declared the respondent the lawful owner of the land in dispute. Believing that the Tribunal erred in its decision, the appellant preferred the instant appeal faulting it for declaring the respondent as lawful owner of the land in dispute on three(3)grounds of appeal as reproduced below: 1. Without any proof to that effect, the honourable appellate tribunal erred in law and fact when it held that the Respondent was the lawful owner of one acre in dispute out of 30 acres; 2. That the District Tribunal erred for deciding the case basing o it raised itself without affording parties right to be heard; 3. That, the trial tribunal erred in law and fact for failure to analyse and evaluate the evidence of all witnesses. The appeal proceeded by way of oral submissions. Before the Court, the appellant was represented by Mr. Richard Ambrose Giray, learned ' - . V ■ r! advocate, and Mr. Richard Mbuli, learned counsel appeared for the Respondent. Mr. GIray was the first to take the floor. He opted to combine the first and third grounds of appeal and argued them together. He dropped the second ground of appeal. In relation to the first and third grounds, Mr. Giray faulted the decision of the Tribunal that declared the respondent the lawful owner of the suit land. He complained that the findings were reached out without any evidence. He highlighted on the procedure for allocation of land by the village and submitted that the respondent tendered no evidence to substantiate that he followed the procedures. He referred this Court to page 7 of the Tribunal's judgement where the letter dated 27'^ February 1999 from the village of Manza was discussed and concluded. He submitted that the letter is controversial. Mr. Giray registered his surprises as to how the letter of approval of allocation of land could be written to the respondent before the village meeting. He also attacked the letter by averring that the person who allocated the land in dispute to the respondent is the village executive officer who had no mandate to allocate village land. It was his conclusion that had the Tribunal carefully evaluated the evidence, it would have found that the respondent failed to prove his ownership. To add weight on his contention, he cited the provision of Section 110 (1) and (2) of the Evidence Act (Cap 6 R.E 2022) which require any person who allege existence of fact to prove such allegations. In the end, the learned counsel urged this court to allow the appeal and reverse the decision of the Tribunal. Responding to the appellant's submission Mr. Mbuli opposed the appellant's arguments in relation to the first and third grounds. As for him, he was in support of the Tribunal's findings. He was of the view that the testimony of AWl, AW2,and AW3, proved that the respondent owned the land since 1999 and has developed the same without interference from anybody until the appellant came to invade the same in February 2018. He contended further that the testimony of DWl confirmed that he invaded the suit land for farming as there were many people cultivating the area. The learned counsel added that there has been clear evidence that the land in dispute has been owned by the respondent since 1999 despite of whatever discrepancy in the letter of allocation. He contended further that the respondent admitted that he Invaded the land in 2018 and that there -.A .. was no any evidence that the land in dispute was owned by the village or was a reserved area. He stated that the evidence of DW2 that the land was owned by the village, was not substantiated by any documentary evidence adduced before the Tribunal. According to him, if the land was a forest reserve as testified by DW2, it is the village or forest department who should have interest in the suit and not the appellant. He also referred this Court to the evidence of AW2 who testified that there were plans for forest reserve in the village but the plan found the respondent and others on the said land and that the plan never materialized. He was of the view that the discrepancy in the letter does not remove the established evidence that the respondent owned the land since 1999 reasoning that the respondent had adverse possession contrary to the appellant who admitted that he invaded the disputed land. At the end, he prayed the present appeal be dismissed with costs. On his brief rejoinder, Mr. Giray averred that the respondent's counsel has not responded on their submissions relating to the respondent's failure to comply with the procedure for land allocation. He referred this Court to the letter on page 7 of the judgement, contending that the observed contradiction is not something to ignore as it leaves a lot to be desired. He expounded further that the letter is unclear as to whether the liakS'tAS'r respondent was given the land on 27^^ February 1999, 5^^ June 999 or 12^^ July 1999 and that the letter was stamped by the village executive officer who had no mandate to allocate land. He reiterated his submission in chief that there is no proof that the respondent was given the disputed land as there is no approval of the village assembly or village council as the supreme organ to allocate the land is the village general assembly. He reiterated his prayer for the decision of the Tribunal to be reversed. Having read the petition of appeal, it is apparent that the appellant's first and third grounds of appeal fault the evaluation of the evidence by the Tribunal. As prosecuted by the appellant, I will determine the first and third grounds on the aspect as to whether there was proper evaluation of evidence by the Tribunal. It is an undisputed principle that this being the first appellate Court, it has a role of treating the records and the entire evidences of the trial Tribunal in a form of re-hearing, and arrive at its own independent findings as held in the case of Siza Patrice v. Republic, Criminal Appeal No. 19 of 2010 (unreported), where the Court of Appeal observed that:- Ve understand that it is a settied iaw that a first appeai is in the form ofa rehearing. As such, the first appeiiate court has a duty to re-evaluate the entire evidence in an objective manner and arrive at Its own finding offact Ifnecessary." At the Tribunal, the parties herein contested for the land in dispute in which the appellant claimed that the same belong to Manza Village while admitting that he was a trespasser. The respondent on the other hand resisted the appellant's contention ciaiming to be the lawful owner of the suit land. The law under section 110 of the Evidence Act, Cap. 6 R.E. 2022 hereinafter, the "Evidence Act" demanded the respondent, being the applicant before the Tribunal, had a duty to prove that he is the owner of the disputed land. The standard of proof required in civil cases is on the balance of probabilities. In the case of Paulina Samson Ndawanya v. Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 (unreported), the Apex Court of the land expounded the above principle by stating that: "It Is trite law and Indeed elementary that he who alleges has a burden ofproofasper section 110 ofthe Evidence Act, Cap. 6[R.E 2002]. It Is equally elerhentary that since the dispute was In dvH case, the standard ofproof was on a balance of probabilities which simply means that the Court will sustain such evidence which Is more credible than the other on a particular fact to be proved."[Emphasis added]. - ■ nSS''■ In proving his claims at the Tribunal, the respondent alleged that he was allocated thirty cares of land In which the suit land measuring one acre was within, by the Manza Village on 17^^ February 1999. He tendered the letter dated 27/02/1999 written to him by Manza Village titled "OMBI LA KUPEWA ENEO KATIKA KIJIJI CHA MANZA" which was admitted as Exhibit A2. His evidence was supported by all witnesses who testified on his side. The Tribunal upon being satisfied with the respondent's evidence, ruled In favour of the respondent relying on the evidence that he was allocated the suit land by Manza Village as exhibited In the Exhibit A2. Basing on the principle of adverse possession, the Tribunal further held that the respondent used the land for more than 12 years interruptedly. I understand that the village council has powers to allocate land as under the provision of section 8 (1) of the Village Land Act, Cap 114 R.E. 2019 hereinafter, the "VLA", It Is conferred with the responsibility for management of all village land. I am also aware that the powers conferred to the Village Council are subject to compliance with section 8(5) of the VLA which provides for the requirement of approval of the village assembly as prior condition for the village council to allocate village land. Section 8(5) reads:- "A village councilshall not allocate land or granta customary right ofoccupancy without approval ofthe Village Assembly", 8 From the above provision of the law, it is mandatory for the village council to comply with the condition in allocating village land. This means that in order for one to prove title to ownership of the village land upon allocation by the village council, there has to be proof of the person's compliance with the prescribed procedure enumerated by the law. The appellant deposed that he was allocated the disputed land by Manza Village and tendered Exhibit A2 as of such allocation. I have carefully scrutinized Exhibit A2 and observed that the letter was written by Manza Village to the respondent to notify him that the Village Council through the meeting conducted on 5^^ June 1999 resolved to allocate him the land located at Mkamanga. The letter was signed by Village Executive Officer who had no mandate to allocate village land. Further, the letter dated 27^^ February 1999 which allocated the suit land to the respondent stated that the meeting of the village was conducted in 5^^ June 1999 about seven months after the land was allocated to him. The allocation letter raised a crucial anomaly as to how the appellant would be granted suit land prior to the meeting of the village. Apart from Exhibit A2, no minutes of the Village Council that discussed and made the allocation of land to the respondent was tendered by the respondent to prove the assertions in Exhibit A2. There is also no evidence that the village assembly met on a certain date to approve the decision of to allocate land to the respondent prior to the grant of the same vide Exhibit A2 dated 27**^ February 1999. My understanding of section 110 of the Evidence Act is that the respondent was mandated to prove at the Tribunal that the village complied with the underlined procedures in the allocation of the land in dispute by the village council. The absence of the minutes of the village council and the approval of the village assembly prior to the grant of suit land is as good as there was no allocation of the same. The viliage had no authority to allocate land to anybody in absence of proof of the minutes from the village council and approval by the viliage assembly prior to such allocation. In resolving a much similar situation in the case of Zephurine Mpambo V. Buhangaza Village Council, Land Case Appeal 2 of 2020 [2020] TZHC 4261 (11 December 2020), this Court held:- "The appellant argued that he was allocated the land by the village council in 1990. However, there Is no document In the whole file to support that the village council approved the allocation of land to the appellant In 1990. Under section 147(1)ofthe Local Government(DistrictAuthorities)Act, Cap. 287 RE2002 the village council Is empowered to manage the affairs and business ofa village. The section provides: 10 a '' ¥ ■: "A village council is the organ in which is vested all executive power in respect of aii the affairs and business ofa village''. Therefore, in line with the above provisions of the iaw, the allocation of village land without the approval of the village council is null and void." Considering the above analysis, the respondent cannot claim to own the one-acre suit land alleged to have been invaded by the appellant vide the purported allocation by Manza village which in my view fall short of legal support. As such, I am fully satisfied that there was insufficient evidence to prove the respondent's ownership of the land In dispute measuring one acre by way of allocation by the village authority. Again, I find the Tribunal's decision based on adverse possession uncalled for. In his application and oral testimony before the Tribunal, the respondent never claimed ownership of the land In dispute by adverse possession. As the respondent's claim for ownership of the land in dispute was based on the allocation of the same by the village on 27/02/1999, It was incorrect for the Tribunal to invoke the doctrine of adverse possession. That being said, I find paramount at this stage to hold that there was improper evaluation of evidence by the Tribunal as rightly argued by the appellant. As such, I find the first and third grounds of appeal merited. 11 ^ Consequently, this appeal is allowed. The judgement and decree passed by the District Land and Housing Tribunal for Morogoro in Land Application No. 09 of 2022 are quashed and set aside. Considering that the dispute involves parties who have been using adjacent lands as neighbours, I make no order as to costs. It is so ordered. Right of appeal fully explained. DATED at MOROGORO this 30^^ day of July 2024. OP H. A. KINYAKA r' <lSk JUDGE 30/07/2024 12