JUDGMENT MBWIGA MPOLA VS SALIM NSAGAJE 4 OTHERS

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA LAND APPEAL NO. 27710 OF 2023 CASE REFERENCE NO. 20231215000027710 (Originating from Application No 92 of 2018 in the District Land and Housing Tribunal for Mbeya at Mbeya) MBWIGA MPOLA ........................................................................ APPELLANT VERSUS SALIM NSAGAJE .................................................................1ST RESPONDENT DAUDI WILSON .................................................................2ND RESPONDENT SAFARI SAJA ......................................................................3RD RESPONDENT MWANDAMBO HAYAJE ......................................................4TH RESPONDENT JACKSON SHEYO ................................................................5TH RESPONDENT JUDGMENT Date of hearing: 7/08/2024 Date of judgment: 11/09/2024 NONGWA, J. In the District Land and Housing Tribunal for Mbeya vide Application No. 92 of 2017, the appellant sued the respondents for possession of eight acres located at Iyawaya village within the district and region of Mbeya. He prayed to be declared entitled to exclusive and unimpeded right of possession of the land in dispute, that the tribunal investigate on the matter, vacant possession of the land, declaration that respondents were 1|Page in wrongful occupation of the land, costs of the suit and other reliefs the tribunal would deem fit to grant. Brief facts are that the land was initially owned by the appellant’s mother, the appellant testified that the land was left to him after the death of his mother in 1969. It was alleged that in 2014 before the ward tribunal, the appellant successfully sued one Pascal Wahotile for trespass on the same land. In 2018 the respondents trespassed it again which resulted the present dispute. In support the appellant called Roza Hayaje (PW2) who said the land belonged to appellant’s mother and Mkwamo Sawimo (PW3) who testified on the dispute the appellant had with Pascal Wahotile. The respondents in their amended joint written statement of defence disputed the claim, each explained how he acquired his respective piece of land. The first respondent testified as DW2, second respondent as DW3, third respondent as DW4, fourth respondent as DW5 and fifth respondent as DW1. The respondents adduced evidence that they were neighbours and have been in the land for more than twenty years. To support their testimonies, they called Venance Mwatosya (DW6) and Mwalyego Sukwa (DW7) their evidence was that the land belonged to the respondents, DW7 added that is the one who gifted the land to DW1. 2|Page The tribunal conducted visit of locus in quo, at the conclusion, found the appellant had failed to prove his ownership on balance of probabilities as a result the application was dismissed with costs. Aggrieved the appellant has preferred memorandum of appeal on six grounds of appeal namely one; that the trial tribunal erred both in law and facts for failure to consider and ignore the evidence of appellant, hence arrive to unfair decision; two, that the trial tribunal erred both in law and in facts to decide case in favour of respondents while they failed to submit documents before tribunal showing that they are legally owners of the area in dispute; three, that the trial tribunal erred both in law and facts for deciding in favour of the respondents basing on weak evidence by the respondents; four, that the trial tribunal erred both in law and in facts for not analysing the evidence of the appellant in the judgement, hence arrived to unfair decision; five, the trial tribunal erred both in law and in facts for not take the whole evidence of the appellant in deciding the suit; and six, that the trial tribunal grossly erred in law and fact for failure to records some evidence adduced by the appellant, which rendered unfair decision. When the appeal came on for hearing, the appellant appeared in person, without legal representation, whereas the respondents were 3|Page represented by Ms. Ezelina Mahenge, learned counsel. By consensus of the parties, hearing was by filing written submissions. In his submission the appellant argued ground five and six together. The first ground is that evidence of the appellant was ignored, the appellant submitted that in the judgment the chairman did not consider evidence of both parties, and that only evidence of the respondents was evaluated. He said, the court is required to record evidence of both parties and evaluate it, the one with strong evidence has to win. He supported the argument with the case of Leonard Dominic Rubuye t/a Rubuye Agrochemical Supplies vs Yara Tanzania Limited, Civil Appeal No. 219 of 2018 [2022] TZCA 419 (13 July 2022; TanzLII). Submitting on ground two that respondents did not produce documents of ownership, the appellant submitted that although the respondents won the case, they did not prove their ownership because they tendered no any documentary evidence to show how they acquired the respective pieces of land. He said that evidence of the appellant was strong compared with that of the respondents and referred the court to the case of Kasusura and the Attorney General vs Kabuye [1982] TLR 338 and Abubakari I.H. Kilongo & Another vs Republic, Criminal 4|Page Appeal No, 230 of 2021 [2022] TZCA 722 (21 November 2022; TanzLII) to fortify the point. In respect to ground three, that respondents adduced weak evidence, the appellant submitted that the respondents had weak evidence and tendered nothing to prove their ownership of land compared to him and his witnesses who testified and tendered documents which showed that he won the case against other invaders at the ward tribunal. Ground four is failure to evaluate evidence in record, it was argued that in the judgment nowhere the chairman analysed and evaluated evidence of both parties. He said that the appellant is in doubt whether his evidence was considered and given weight it deserves. He supported the point with the case of Kwiga Masa vs Samweli Mtubatwa [1989] TLR 103. The appellant went on to state that the tribunal conducted visit of locus in quo to ascertain some of the issue but it is not reflected in the judgment, this amount to unprocedural irregularities. He cited the case of Kimonidimitri Mantheakis vs Ally Azim Dewji & Others, Civil Appeal No. 4 of 2018) [2021] TZCA 663 (3 November 2021; TanzLII) to bolster the argument. He added that witnesses were not under oath when explaining at locus in quo and parties were not given opportunity to cross 5|Page examine, he referred the court to the case of Sikuzan Saidi Magambo & Another vs Mohamed Roble, Civil Appeal No. 197 of 2018 [2019] TZCA 322 (1 October 2019; TanzLII) on effective visit of locus in quo. In grounds five and six, the appellant submitted that evidence of the appellant and his witnesses were abandoned in the judgment and it is not shown if it was considered and weighed to the standard required to meet the thread of section 3(2) of the Evidence Act Cap 6. From the above, the appellant prayed the appeal to be allowed with costs. In response to the above, Ms. Ezelina submitted that evidence of all parties and their witnesses were properly recorded by the tribunal as reflected in the proceedings and was properly considered in reaching to the decision in favour of the them. Counsel added that evidence as recorded in the proceedings is explained in the judgment. The case of Leonard Dominic Rubuye t/a Rubuye Agrochemical Supplies relied by the appellant was said to be inapplicable. In ground two that the respondents did not tender documents to prove their ownership, it was argued that no law which requires proof of ownership of the land to be only by documents, she said even the appellant did not tender any document to prove his title. Counsel stated that the chairman properly analysed and evaluated evidence of both 6|Page parties. The case of Stanslaus Rugaba Kasusura (supra) and Abubakari I.H. Kilongo & Another (supra) was complied by the chairman. In ground three that the appellant tendered documentary evidence of other invaders to the land, the respondents submitted that no document was tendered let alone attempt by PW2 who wanted to tender file of ward tribunal but rejected. Alternatively, the respondent submitted the case was between the appellant and other person, hence even if the file was to be admitted it had no any evidential value. Further submission was that going through the pleadings, proceedings and judgment of the tribunal, evidence of the respondents was heavier compared to the appellant. That while the appellant pleaded 8 acres the of the respondents is 16.5 acres in total. Further submission was that when the tribunal visited locus in quo did not find any graves as testified by the appellant and there was no evidence how came into possession of the suit land. Counsel added that through Application No. 164 of 2017 the appellant had a case with the first respondent in which he failed. Coming to ground four, Ms. Ezelina submitted that the tribunal analysed and evaluated evidence of both parties and found that of the 7|Page respondent watertight compared to the appellant. On evidence during locus in quo not being reflected in the judgment, counsel stated that the same was considered in the judgment but rejected as the appellant failed to show graves and neighbours. She added that procedure laid in Kimonidimitri Mantheakis was followed. Wind up with ground five and six, counsel for the respondents submitted that evidence of the parties and their witnesses was considered by the tribunal in arriving to the decision it did, thus prayed the appeal to be dismissed with costs. During rejoinder, the appellant submitted that the respondents did not dispute that he won the case against Pascal Wahotile, of which the respondents were present and witnessed but did not make intervention and claim interest over it, the evidence the appellant said was not considered by the tribunal. He added that no evidence of those who obtained the land by gift was paraded and it was wrong for some of the respondents to claim adverse possession before expire of twelve years. Having considered the record and rival submission for and against the appeal owing to nature of grounds of appeal and nature of submission made, the first and fourth grounds will be determined together while the second, third, fifth and six jointly. 8|Page Starting with the first and fourth ground which touches on evaluation of evidence, the argument of the appellant is that the tribunal did not record what was testified by the appellant and his witnesses but only that of the respondents is reflected in the judgment. Further that there was no evaluation of evidence in reaching to fair judgment. The respondents opposite view, counsel submitted evidence of both parties was recorded as reflected in the proceeding and it was properly evaluated. From the above, I find it apposite to explain what judgment of the tribunal should contain, relevant here is regulation 20(1) of the Land Dispute Courts (the District Land and Housing Tribunal) Regulation G. N. 174 of 2003, it provides ‘20(1) The judgment of the tribunal shall always be short, written in simple language and shall consist of (a) A brief statement of facts; (b) Findings on the issue (c) A decision thereof; and (d) Reasons for the decision.’ The above law it is required for the presiding chairman to ensure that a judgment contains statements of facts of a case, the point or points for determination, the decision thereon and the reasons for the decision. Every judge, magistrate, chairman as the case here has his /her own art 9|Page and style of writing judgment. In the case of Hamisi Rajabu Dibagula vs The Republic [2004] TLR 181 “A good judgment is clear, systematic and straightforward. Every judgment should state the facts of the case, establishing each fact by reference to the particular evidence by which it is supported; and it should give sufficiently and plainly the reasons which justify the finding." In MS St Anthony Secondary School vs Lukumbulu Investment Co Ltd, Civil Revision No. 38816 of 2022 2024 TZCA 123 (23 February 2024; TanzLII) the court stated; ‘It is to be observed that the strength of any decision lies on its reasoning. Reason is the soul and spirit of a good judicial decision without it there cannot be any valid decision.’ I have gone through the impugned judgment of the tribunal and satisfied that the chairman in composing the judgment complied with the law. Statement of facts is reflected at page 2, issue for determination page 3, reason for decision with reference to evidence is found at page 4 to 7 and decision is at page 8. On complaint that the chairman did not analyse and evaluate evidence of parties, having perused the judgment of the tribunal, I have found that the chairman considered evidence of both parties in arriving to 10 | P a g e the decision. Analysis of the appellant evidence and his witness is found at page 4 and 5 of the judgment, likewise that of the respondent from page 5 to 6. Reason for rejecting evidence of the appellant is found at pages 6 and 7 of the judgment where the chairman was satisfied that evidence of the respondents outweighed that of the appellant. I therefore find the first and fourth grounds with no merit. Coming to grounds two, three, five and six whether the appellant proved the case on balance of probabilities. Submission of the appellant is that he tendered documents which shows he won the case in the tribunal as against the respondents who tendered no documentary proof. In response it was said that no law which requires title to land to be proved through documentary evidence and that the appellant failed to prove his case. To resolve the above complaint, it necessary to remark that the appellant is the one who had burden of proof in terms of section 110 of the Evidence Act [Cap 6 R.E. 2022] burden of proof lies on a party who alleges anything in his favour. It is also common knowledge that in civil proceedings, a party with legal burden also bears the evidential burden and the standard of proof is on the balance of probabilities which simply 11 | P a g e means that the Court will sustain such evidence which is more credible than the other on a particular fact to be proved. It is again trite that the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his and that the burden of proof is not diluted on account of the weakness of the opposite party's case. In the case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017 (TanzLII) the court stated that; ‘... the burden of proving a fact rest on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for negative is usually incapable of proof. It is ancient rule founded on consideration of good sense and should not be departed from without strong reason.... Until such burden is discharged the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such a conclusion, he cannot proceed on the basis of weakness of the other party....’ From the above I am sitting as the first appellate court, thus vested with the mandate to re-appraise, re-evaluate and re-consider the evidence on record and draw my own inferences of fact. This was well stated in the case of Registered Trustees of Joy in the Harvest vs Hamza K. 12 | P a g e Sungura, Civil Appeal No. 149 of 2017 [2021] TZCA 139 (28 April 2021; TanzLII) when the Court stated; 'The law is well settled that on first appeal, the Court is entitled to subject the evidence on record to an exhaustive examination in order to determine whether the findings and conclusions reached by the trial court stand...’ I will be guided by these principles in the determination of the second, third, fifth and six grounds. To begin with the assertion that locus in quo was not conducted per procedure laid, having perused the records I agree with the appellant that the witness did not take oath or affirmation as required by the law adducing their evidence. In Kimonidimitri Mantheakis vs Ally Azim Dewji & Others, Civil Appeal No. 4 of 2018) [2021] TZCA 663 (3 November 2021; TanzLII) the court laid some guideline on conducting visit of locus in quo including; ‘....one, ensure that all parties, their witnesses, and advocates (if any) are present. Two, allow the parties and their witnesses to adduce evidence on oath at the locus in quo; three, allow cross-examination by either party, or his counsel, four, record all the proceedings at the locus in quo; and five record any observation, view, opinion or conclusion of the court including 13 | P a g e drawing a sketch plan if necessary which must be made known to the parties and advocates, if any.’ The second requirement was not observed and therefore making evidence obtained in locus in quo worthless and therefore discard such evidence in record. With regard to proof, in the application filed in the tribunal on 4/6/2018, the appellant pleaded to be the owner and rightful possessor of 8 acres of land forming the dispute. That it was trespassed by the respondents on 1/5/2015 by cultivating it. To that end the appellant was required to parade evidence on how he came up the owner and possessor of the land. On how he got title over the land he testified that it was left to him by his mother in 1969. The respondents disputed the appellant’s claim and adduced evidence how each got and possess his piece of land. In its judgment the tribunal after referring to section 110 of the Evidence Act and the case of Hemed Said vs Mohamed Mbilu [1984] TLR 113 was satisfied that the appellant did not lead any evidence on how was using the land since 1969 and how his mother got the land. Further that when it visited locus in quo did not see graves as testified. The tribunal found PW2 and PW3 did not lead any evidence on how the 14 | P a g e appellant or his mother got the suit land. In the totality the tribunal found the appellant had failed to prove his case. On the other hand, the tribunal was satisfied that the respondent had proved their title as each led evidence how got the suit land and are in physical occupation for more than thirty years undisturbed. Evidence of DW6 and DW7 supported the respondents’ case, at the end the chairman found evidence of the respondent outweighed the appellant thus dismissed the application. In this appeal it has been submitted that the respondents did not tender any documents to prove the case. I agree with the respondents’ counsel that there is no law which provides that documentary evidence is the only way to prove title over the land. In Sixbert Bayi Sanka vs Rose Nehemia Samzugi, Civil Appeal No. 68 of 2022 [2023] TZCA 227 (4 May 2023TsnzLII) it was stated; ‘Without there being a need to cite an authority, oral, documentary and physical materials are taken cognizance by the law as forms of evidence which, if their credence is impeccable, would be sufficient for determination of a dispute.’ From the above it is unthinkable that while the appellant is the one who filed the suit, in his submission is trying to shift burden to 15 | P a g e respondents and blame them for not tendering documentary evidence of ownership, forgetting that he too had tendered none. Through pleadings, the appellant traces his title to the estates of his mother, in his testimony he said “niliachiwa na mama ambaye alipanda miti hiyo alipanda siku nyingi hata miaka ya 1960 ilikuwepo. Kwa kipindi chote tangu mama aliponiachia alipofariki nimelimiliki mimi hadi mgogoro ulipoanza mwaka 2015.’’ Plain interpretation that; It was left to me by mother who planted trees many days even before 1960 was there. For the whole period when mother left it to me when she died, I was owning until this dispute arose in 2015. During cross examination he said “mimi nilizaliwa mwaka 1948. Niliachiwa shamba mama alipofariki nikiwa na miaka 18. Sikumbuki niliachiwa mwaka gani. Mama alifariki mwaka 1969”. Plain interpretation; I was born in 1948 the farm was left to me when my mother died, I had 18 years. I don’t remember the year it was left to me. Mother died in 1969. The above evidence tells that the appellant’s title over the suit land traces from the estates of his deceased mother but pleadings and evidence is silence how his mother got the suit land. Similar situation was discussed in John Siringo & Others vs Tanzania National Roads 16 | P a g e Agency & Another, Civil Appeal No. 171 of 2021 [2022] TZCA 489 (3 August 2022; TanzLII) and the court stated; ‘While the eighth appellant claimed to have inherited his portion of land from his parents in 1974 and the ninth appellant traced his inheritance from his parents to 1986, the eleventh appellant pegged her claim to inheritance from her parents made in 1986 and the seventeenth appellant said his parents gave him the land in 1997. Yet again, none of the four appellants led evidence on the origin of their respective progenitors' title from which their titles allegedly derived.’ The court then proceeded to hold that; ‘... it is our firm view that the wholesale statements made by the six first group appellants in support of their claimed portions of land are speculative and implausible. They do not, by any standard, establish that the said appellants or their alleged predecessors in title had exclusive possession and occupation of the said portions preceding the initial proclamation of the road in dispute.’ The import I get from the above pronouncement any person claiming title of the land from his predecessor or inheritance he must prove that the former had exclusive possession and occupation of the land before the eruption of the dispute. That is missing in this case, the appellant completely failed to trace his title of land from her mother 17 | P a g e particularly how she came into possession of the same let alone it was not pleaded that he traces his title from his mother. On their part each respondent testified how he acquired the land precisely 5th respondent (PW1) said was given by his uncle in 2009, 1st respondent by clearing bushes, 2nd respondent being given by his parents in 1985, 3rd respondent being given by his uncle, and 4th respondent being given by father -in -law in 1991. In their evidence respondents supported each and that they were neighbours. The respondents’ right to land was supported by physical occupation of the land for long time and supported by DW6 and DW7 who said they seen the respondents using the land for long time. DW7 from whom DW1 traces his titles confirmed that is the one who gave the land to him in 2009. On his part, the appellant just said after the land being left to him by his mother in 1969 it was until 2015 when he sued Paschal Wahotile over the same land in the ward tribunal, by any stretch of imagination evidence of the appellant is silence on physical occupation of the suit land. the fact that the appellant sued Paschal Wahotile in the Ward tribunal and won is not bar to the respondents claiming ownership over the same land even if they were aware of the dispute for courts always operating in 18 | P a g e personam not in rem and judgment passed binds only those who were parties to it. From the discussion above, I find that the appellant failed to prove his case on balance of probabilities and find nothing to fault the decision of the tribunal. Consequently, I dismiss the appeal with costs. V.M. NONGWA JUDGE 11/9/2024 Dated and Delivered at Mbeya this 11/9/2024 in presence of Appellant, 1st and 5th Respondents and Ms. Ezelina Mahenge Advocate of all Respondents. V.M. NONGWA JUDGE 19 | P a g e