20190604 TZHC Mbeya

IN THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA (MBEYA DISTRICT REGISTRY)

AT MBEYA LAND APPEAL NO 60 2016 (From the decision of the District Land and Housing Tribunal of Mbeya District at Mbeya in Land Case No. 115 of 2014) MESTON YAPELELA SING'AMBISI..........I. ......... ISS ........ APPELLANT

VERSUS L EAI-I 11AIION3E ................................................... RESPONDENT

TUNDUMA TOWN COUNCIL (Successor of NANDANGA VILLAGE COUNCIL..S.S.2ND RESPONDENT

JUDGEMENT Final submission on: 0510412019 Judgment on: 0410612019 NGWEMBE, 3: The appellant was dissatisfied with the decision of the District Land and Housing Tribunal in Land Case No. 115 of 2014 and decided to challenge that decision by lodging an appeal to this Court. It is on the record that, the appellant herein was the applicant in Land Case No. 115 before the District Land and Housing Tribunal. The appellant through the legal services of Mr. James Kyando Advocate is claiming ownership of the disputed piece of land situated at Nandanga village in Momba District within Songwe Region. The land comprises a total of 8 acres. The appellant alleges that he has been in occupation of the disputed land for more than 30 years, and that in 2005 the respondent went to him requesting to be given temporarily a piece of land for cultivation purposes. Being a relative, he gave him two (2) acres, but surprisingly in 2010 the 1s t respondent without any colour of right, invaded the rest of the land measuring 6 acres irrespective of what was given to her by the appellant. On those alleged facts, he inter a//a, prayed before the trial tribunal for a declaration that he is the lawful owner of the disputed land and for an order requiring the respondent herein to vacate the disputed land. The appellant's claim was contested by the respondent. The trial tribunal heard the parties on the matter,

and in the end it dismissed the appellant's suit by holding inter a//a that: .. the Respondent is on the land si'ice 1997 when she was allocated the same by the village council. The Applicant has failed to prove that he is the one who invited the I st Respondent on the suit land" As indicated herein, the appellant was dissatisfied with that decision, and has invited this court to quash the trial tribunal' decision and declare him the lawful owner of that piece of land. The appellant has three grounds against the decision of the tribunal, that:- 1. The District Land and Housing Tribunal seriously misdirected itself on balance of probability to hold a decision in favour of the respondents contrary to enough evidence from the 4. 41) these submissions, the applicant's counsel prayed for his appeal to be allowed and for him to be declared the lawful owner of the suit land. In his response to the above submissions, the counsels for the respondents had similar submissions. They submitted that the defence case at the trial was strong compared to the applicant's case. The appellant failed to justify where his late father got the disputed land. He said further that it is not true that the testimony of DW3 supports the testimony of PW1. The evidence of DW3 at page 28 of the proceedings was to the effect that when the alleged original owner one Samweli Silungwi, left to Zambia, he left the

suit land in the hands of applicant's father, one Yapeleka Sing'ambi who also left the disputed land in 1974 during operation vijiji whereby all land reverted back to the village council. On the second ground, they submitted that the defence witnesses were not contradictory rather was in support of each other. That the alleged contradiction pointed by the applicant's counsel did not occasion any failure of justice to the either part. That the trial chairman addressed properly his mind regarding the principles enunciated in the cited case of Mohamed Said Matula Vs. R, (supra)., and ruled in favour of the respondent. On the third ground, they submitted that it was lawful for the village council to allocate the disputed land to the 1 respondent since the land reverted back to the village authority during operation vijiji. He further cited the case of Ndizu Ngasa Vs. Masisa Magasha [1999] TLR 202 in which it was held that the first appellate court has a duty to re-assess the evidence of the trial court. On that basis he invited the court to re-assess IWONm o- M I Date: 04/06/2019 COram: G. Herbert - DR Applicant: Absent For the Applicant: Mr. Kyando 1st Respondent: Mr. Amani Mwakolo - Advocate 2nd Respondent: Absent B/C: Gaudensia Mr. Kyando: The matter is for Judgment I am ready. Mr. Amani Mwakolo: I am also ready. Court: Judgment delivered in presence of both parties. C; G. Heert Deputy Registrar 04/06/2019 Right of Appeal Explained. Deputy Registrar 04/06/2019