LAND APPEAL NO

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA LAND APPEAL NO. 6809 OF 2024 (Originating from the decision of the District Land and Housing Tribunal for Lindi at Lindi in Land Application No. 27 of2023) MFAUMME YUSUFU MKWEMBA (Administrator of the Estate of the Late YUSUFU MFAUMME MKWEMBA)........ ................. .......... .... .APPELLANT VERSUS ABDALLAH KUTAKATA............ ......... 1st RESPONDENT BAKARI KULOKOTELA.................. ......... ..2nd RESPONDENT JUDGMENT 21st August and 10h September 2024. DING'OHI, J. The decision of the District Land and Housing Tribunal for Lindi at Lindi (herein referred to as "trial tribunal"), in Land Application No. 27 of 2023 intrigued Mfaumme Yusufu Mkwemba, the appellant herein, who stood at the position of the Legal representative of the late Yusufu Mfaume Mkwemba, his father, to file the present appeal. The background giving rise to this appeal as assembled from the trial tribunal's records, is to the effect that the appellant filed a suit in the trial tribunal against the present respondents for the ownership of the land Page 1 of 15 measured at 20 acres located at Sinama Village, Mnolela Ward, within Lindi Rural district, Lindi region. According to him, sometime in 2021 while collecting the properties of his late father after being appointed as administrator of the estate, he noticed that the 2nd respondent invaded and sold to the 1st respondent the disputed land that his late father had used for his entire life. Subsequently, the appellant, in vain, tried to seek resolution at the family level. The matter was then taken to the Ward tribunal for mediation. The mediation failed; a situation which made the appellant initiate the Land dispute subject to this appeal in the trial tribunal. In the trial tribunal, the appellant flaunted two witnesses, Ahmadi Bakari Kitenge (SM2), and Mohamed Abdulrahman Lidengo (SM3). In their respective evidence, the witnesses told the trial tribunal that the pieces of land they obtained from their parents are bordered by the suit land. They are therefore neighbours. On their sides, respondents disputed the appellant's claim. It is their stance that originally the land in dispute was owned by the 2nd respondent who later passed it by way of sale to the 1st respondent. That evidence was supported by Esha Masudi (SU3), Rashidi Mohamed! Libalo (SU4), and Abdallah Mtipa (SU5) who are the appellant's stepmother and neighbors to the land, respectively. Specifically the evidence Page 2 of15 of the PW3 who was the wife of the late Yusufu Mfaume Mkwemba for about ten years, her evidence was to the effect that the disputed land that parties are quarreling over is situated far from the area the appellant’s father was farming. According to that witness, that land is only measured at two acres. At the end of the day, the trial tribunal found that the appellant had failed to prove the claim. The application was dismissed with costs. The trial tribunal went ahead in declaring the 1st respondent herein, ABDALLAH KUTAKATA, the lawful owner of the land in dispute. Following that the trial tribunal finally issued an order restraining the appellant from entering the suit land. The appellant is unhappy with the judgment and decree by the trial tribunal. He has preferred this appeal on the following three grounds, namely. 1. That the learned Chairperson erred in law and fact holding that the disputed property was lawful sold to the 1st Respondent is the same as the disputed property. 2. That the learned Chairperson erred in law and fact for conducting a visit in locus in quo without following appropriate procedures and occasioned injustice to the appellant. Page 3 of 15 3. That the learned chairperson erred In law and facts for misleading herself by not considering how the Appellant occupied the land in dispute, its legality and developed the same. In this appeal parties appeared in person, unrepresented. They agreed that it be disposed of by way of written submissions. The appellant and the 1st respondent had complied with the order for filing a written submission. The 2nd respondent has not. In support of the first ground of appeal, the appellant averred that the trial tribunal contradicted itself in deciding on the issue of whether or not the disputed land was the one which is mentioned by him because the disputed land was not distinctively described either by evidence of the parties or even in the judgment. The appellant was of the considered view that per the evidence adduced before the trial tribunal, there was a contradiction in the size of the disputed land. For instance, according to him, DW1 (1st respondent) was recorded telling the trial tribunal that he bought two acres of land from DW2 (2nd respondent), whereas DW2 himself avowed that he owned 20 acres of the land. It is the appellant's case that the above confusion goes to the root of the case because no evidence particularly specified the land that is in Page 4 of 15 dispute. To support his stance, he cited the case of Martin Fredrick Rajab vs. Ilemela Municipal Council & Another (Civil Appeal 197 of 2019) [2022] TZCA 434, and Melchiades John Mwenda vs. Gizelle Mbaga & Others (Civil Appeal No. 57 of 2018) [2020] TZCA 1856 On the second ground of appeal, the appellant faulted the trial chairman for not following the procedures of visiting the locus in quo. He submitted that the procedures and parameters of a proper visit to the locus in quo are set by case laws and apart from the procedures, the essence of visiting a locus in quo is to clear doubts arising from conflicting evidence. The appellant cited the case of NIZAR M.H. LADAK V. GULAMALI FAZAL JANMOHAMED (1980) TLR 29 to support his submissions. Following the above position the appellant submits that he was unaware of the date of visiting the locus in quo. According to him, after visiting the locus, the trial tribunal could have read out the notes and observations made during the visit as elaborated in the case of Said H. Lipite & Others vs. Ministry of Defence & Another (Civil Appeal No. 494 of 2021) [2023] TZCA 17876. That was not done. Supporting the last ground of appeal, the Appellant condemned the trial tribunal for not considering his adduced evidence that his late father Page 5 of 15 had occupied the disputed land for over 25 years. He argued that the trial tribunal did not consider the evidence by PW1, PW2, and PW3 who respectively verified that the appellant's late father was the owner of the land in dispute. According to the appellant, the evidence adduced by his side was not disputed by the Respondents in cross-examination. To bolster his posture, he referred this court to the case of Halima Wakara & Others vs. Jeremiah M. Mkama (Civil Appeal No. 493 of 2020) [2024] TZCA 331. Responding to the first ground of appeal, the 1st respondent briefly submitted that the trial tribunal had reached its decision after being satisfied with the evidence of witnesses who testified before it which proved that the land was originally owned by the 1st respondent after he purchased it from the 2nd respondent who owned the same since 1990 without any disturbance. On the second ground of appeal, the 1st respondent contended that the trial tribunal has met all requisite procedures of visiting a locus in quo including providing notice and date of visiting the disputed land. Responding to the submission over the last ground of appeal, the 1st respondent is of the view that it is baseless because the trial tribunal would not have considered the issue of the ownership of the suit land to the Page 6 of 15 appellant while it is owned by the 2nd respondent who sold it to the 1st respondent. Having scrutinized the available evidence of both sides in the trial tribunal's records, the question that attracts the attention of this court at this moment is whether the instant appeal has merits. I have reminded myself that this being the first appellate court its primary role is to re-appraise the evidence on the trial tribunal records and draw its inference of facts if deemed necessary. This position is currently enormously expressed in various precedents including that of M/S Maximsure Tanzania Limited vs. M/S Yukos Enterprises (E.A) Limited & Others (Civil Appeal No. 424 of 2022) [2024] TZCA 24, wherein it was observed as follows; "In the course, this being a first appellate court which is in the form of a re-hearing, we shall, as urged by the appellant, exercise our mandate to re-evaluate the entire evidence on record and subject it to a critical scrutiny and, if warranted, arrive at our conclusions of fact" Page 7 of 15 See also Batram Nkwera @ Mhesa vs. Republic (Criminal Appeal No. 505 of 2022) [2024] TZCA 720. Guided by the above case law, I shall precisely be doing the role of the first appellate court in the determination of the raised issue on the 1st, 2nd, and 3rd grounds of appeal. Get going with the grounds of appeal meted by the appellant, I shall first consider the first ground which I shall determine together with the third ground of appeal. My discussion shall be on two main boughs; First, whether the land sold to the 1st respondent by the 2nd respondent is the one in dispute in this appeal; and second, whether the trial tribunal has considered the evidence of the appellant's side in its decision. Beginning with the first limb, the appellant has a feeling that the trial tribunal did not treat him justly because the disputed land was not distinctively described either by evidence of the parties or even in the judgment. His reasoning was to the effect that there was a contradiction in the size of the disputed land. I think this complaint should not have detained me much because as per the records, I don't see if there is a contradiction in the evidence of the witnesses who testified in the trial tribunal. I had ample time to read the trial Page 8 of 15 tribunal-s proceedings and I am satisfied that the 1st respondent purchased a total of 7 acres of land from the 2nd respondent. That piece of evidence is also supported by the evidence of the 2nd respondent who was the vendor. That is per the sale agreement which was admitted without objection as Exhibit Sill. For lucidity, I wish to spell out the piece of the respondents' testimonies as a hint to show what transpired during the trial. The 1st respondent in cross-examination was recorded saying: "NHinunua heka/i 7 kutoka kwa Mjibu Maombi namba 2Z heka/i zingine nimenunua kutoka kwa watu wengine iakini hawakushitakiwa na yeye anadai heka/i 20 jumla na watu wengine." And, the 2nd respondent in cross-examination was quoted as stating; "Eneo langu Una heka/i saba. Heka/i saba hizi n/Hbuni mwenyewe" In addition to that, during the hearing of this case, the respondents paraded a total of three witnesses as mentioned herein above. None of those witnesses has spoken about how many acres the parties are disputing about. The issue of 20 acres was raised by the appellant himself on his application before the trial tribunal that the 2nd respondent has taken 20 acres of the Page 9 of15 land which is the property of his late father. It doesn't click in my mind how could the appellant complain over the contradictory evidence concerning the description of the suit land when the records do not suggest that. The appellant's claim prompted me to revisit the trite principles in the law of evidence; the general concept of the burden and the standard of proof in civil litigations. The concept is "he who alleges must prove," and it means that the burden of proof lies on the person who positively asserts the existence of certain facts. The concept is embodied in the provisions of section 110 (1) and (2) of the Evidence Act [Cap 6 R.E. 2019] which provides that: - "(1) Whoever desires any court to give judgement as to any iegai right or liability dependent on the existence of facts which he asserts must prove that those facts exist (2) When a person is bound to pro ve the existence of any fact, it is said that the burden of proof lies on that person. " From the foregoing provision, I think the appellant ought to have proven before the trial tribunal that his late father had left 20 acres of land Page 10 of 15 rather than complaining, at this stage, about the alleged conflicting evidence without proof. Under the circumstances the first limb of complaint is unmerited. The second limb is whether the trial tribunal has considered the appellant's evidence. The law is well-settled that failure to analyze, evaluate, and consider the evidence adduced by the parties, is fatal. In Leonard Mwanashoka vs. Republic (Criminal Appeal No. 226 of 2014) [2015] TZCA 294 the Court of Appeal observed inter-aliathat: "It is one thing to summarize the evidence for both sides separately and another thing to subject the entire evidence to an objective evaluation in order to separate the chaff from the grain. Furthermore, it is one thing to consider evidence and then disregard it after a proper scrutiny or evaluation and another thing not to consider the evidence at ail in the evaluation or analysis.......Failure to evaluate or an improper evaluation of the evidence inevitably leads to wrong and/or biased conclusions or inferences resulting in Page 11 of 15 miscarriages ofjustice. It is unfortunate that the first appellate judge fell into the same error and did not re­ evaluate the entire evidence as she was duty bound to do. She did not even consider that defence case too." I have thoroughly gone through the proceedings and judgment of the trial tribunal. I will agree with the 1st respondent that in its judgment the trial chairman had considered the evidence of both parties including those of their witnesses as mandatorily required by the law. To throw light on what I have stated herein, wish to enumerate a part of the judgment of the trial tribunal to show that the learned trial chairman has considered the evidence of both parties: "Hivyo kwa ushahidi uliotolewa na pande zote mbilj upande wa mleta maombi walieleza tu kuwa eneo HUkuwa na marehemu YUSUFU MFAUMME MKWEMBA.....Mashaidi wote SMI NA SM2 walieleza tu wao ni wapakani wa mleta maombi laklni hawakueleza marehemu alipataje eneo hilo. Ushahidi wa wajibu maombi umekuwa na nguvu kwa kuelezea historia kuwa ardhi hiyo hapo awaii alimiliki Page 12'of 15 mjibu maombi namba 2 na akauza kwa mjibu maombi namba i..." I find that the above reason for the decision by the trial tribunal Is, in my view, sounding. It is doubtful, and one may question, if the land was realy the property of the late father of the appellant, why there is no evidence that the deceased person himself in his lifetime did raise a claim over the ownership of the said land? I say so because the evidence shows that the disputed piece of land was owned by the 2nd respondent from 1990. The 2nd respondent sold it to the 1st respondent in 2021. The application subject to this appeal was filed by the appellant in 2023 which is about 33 years from the date the land was owned by the respondents as aforesaid. The appellant did not say why he was silent for all periods before and after the demise of his father in 2012, until 2023 when he filed a suit subject to this appeal, in the trial tribunal. The appellants stepmother (PW3) stated in evidence before the trial tribunal that the land in dispute was not among the properties left by the appellants deceased father. I would have no materia! to fault that piece of evidence. I therefore find that the appellants complaint on the first ground of appeal is an afterthought that should not be allowed to be entertained. It is hereby dismissed. Page 13 of 15 Resorting to the last ground of appeal, the appellant has claimed that the appropriate procedures of conducting locus in quo were not followed. I will not stay much on this ground. I have considered whether the exercise of visiting the locus in quo was necessary and done. It was not done. Admittedly, the trial tribunal records reveal that on 22nd December 2023, in the presence of both parties, the trial chairman ordered that the trial tribunal would visit a locus in quo on 12th January 2024. The record, however, does not show that on the material date, the appellant appeared at the locus. Consequently, nothing was done and of course, it would be a freak if the process would have continued in the absence of one of the parties in the case. I find that the appellants complaint that the procedures of visiting the locus in quo were not followed while he was himself absent during the visit is unfounded. Fortunately, nothing material was done at the locus in quo on that day. In fine, I will agree that this appeal must fail. It is accordingly dismissed with costs. Page 14 of 15 DATED at Mtwara this 10th day of September, 2024. S.^. DING'OHI JUDGE 10/09/2024 Court: Judgment delivered this 10th day of September 2024 in the presence of parties in person. . DING'OHI JUDGE 10/09/2024 Page 15 of 15