misayo

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY LAND APPEAL NO. 27721 OF 2023 (Arising from the decision of the District Land and Housing Tribunal for Nzega in Land Application No. 36 of2022) MISAYO NZENGI............................. APPELLANT VERSUS GIDAGINA MASANJA............................................... RESPONDENT JUDGEMENT Last Order: 13/08/2024 Judgment Date: 19/09/2024 MANGO, J The Appellant filed Land Application No. 36 of 2022 before the District Land and Housing Tribunal for Nzega contesting ownership over a piece of land measuring approximately ten acres located at Mwakihumbi hamlet, Mangashini village, Tongo Ward within Nzega District in Tabora Region. He alleged to have acquired ownership over the land by purchasing the same from Shigela Masanja in the year 1999. He alleges further that, the Respondent Gidagina Masanja has trespassed into his land in the year 2019 by claiming that he won a case over the disputed land against Mtogwa Jihumbi. He prayed the Tribunal to declare him as the lawful owner of the suit land. After full trial the tribunal dismissed the application with costs. 1 Dissatisfied by the decision of the District Land and Housing Tribunal the Appellant filed the appeal at hand armed with the following grounds of appeal; 1. The trial Chairman erred in law and facts in holding that the Respondent is a lawful owner of the suit property basing on the previous judgment which the Appellant was not a party to that case. 2. The trial Chairman erred in law and facts for failure to properly evaluate and critically analyse evidence adduced by the Appellant and his witnesses thus reaching to erroneous and unjust decision. 3. The trial Chairman erred in law and facts holding that the Respondent is a lawful owner of the suit property because the Appellant did not institute a case for the past three years. 4. That, the trial Chairman erred in law and facts for failure to ascertain the exceptional circumstance which necessitated visiting of the locus in quo and critically analyse findings of the visit of locus in quo. 5. That, the Tribunal's judgment is bad in law for lack of legal reasoning. 6. That, the trial Chairman erred in law and facts in deciding that matter in favor of the Respondent while throwing away the opinion of the other Tribunal assessor without giving reasons During hearing parties appeared unrepresented and prosecuted the appeal by themselves. 2 The Appellant submitted that, the land in dispute is his property and he has been using it for a very long time. He alleges that, the Respondent trespassed into his land. He also alleges that, the trial Tribunal relied on the decision of the Ward tribunal in which he was not party to. He submitted further that, the case before the Ward Tribunal involved Masanja and Mtogwa Jihumbi. The Respondent submitted that, the land in dispute is his property for almost 30 years. According to him, he acquired ownership over the disputed land by clearing a forest. He then developed the land by constructing a dam which he uses for irrigation and as a source of drinking water for his animals. The Respondent also submitted on then case he won against Jihumbi. The Respondent wonders why the Appellant continues to disturb him while the matter has been dealt upon by different authorities which all found the Respondent to be the lawful owner of the land in dispute. He mentioned existence of the case between him and Mtogwa Jihumbi which was decided in his favour by the District Land and Housing Tribunal and the High Court. Being a layperson he could not supply the Court with the citation of the alleged case or a copy of decisions issued in the respective cases. In his submission, the Respondent also mentioned the issue of purchasing the land from Charles Mtogwa 30 years ago. He alleges that, after he purchased the land, he cleared it. According to him, at the time he was clearing the land, Misayo and other neighbours were present but nobody stopped him. When he finished clearing the land and construction of the 3 dam, Misayo emerged and claimed to be the owner of the land without any justification. He prayed the appeal to be dismissed with costs In his rejoinder, the Appellant reiterated his submission in chief. I have considered submissions by both parties and Court record. I will start with the first ground of appeal in which the Appellant challenges the trial tribunal for relying on a decision of the other case to determine the dispute in Land Application No.36 of 2022. My perusal of the judgement of the District Land and Housing Tribunal I found that, the tribunal's decision relied on the decision of the District Land and Housing Tribunal for Tabora in Land Appeal No. 05 of 2011. Such reliance is clearly seen from page seven to eight of the judgement. The judgement establishes further that, the Hon. Trial Chairperson did not consider evidence adduced before the tribunal during trial instead, much consideration was given to evidence that was adduce during hearing of the case that led to Land Appeal No. 5 of 2011 between, Jidagina Masanja and Mtogwa Jhihumbi which was determined by the District Land and Housing Tribunal for Tabora on 31st May 2011. With due respect to Hon Trial Chairperson the land that was a subject matter in Land Appeal No. 5 of 2011 before the District Land and Housing Tribunal for Tabora is different from the land that was contested in Land Application No. 36 of 2022 before District Land and Housing Tribunal for Nzega. This is evident from the description of the land in dispute that was given by the Respondent who was party to both Land Application No. 36 and Land Appeal No. 5 of 2011. According to the judgement in Land Appeal No. 5 of 2011 the land which its ownership was contested in Land Appeal No.5 of 2011 was acquired by the Respondent Jidagina Masanja by purchasing the same from 4 two people who he mentioned to be Charles Mtogwa and Shagembe Mboje by paying consideration of 15 cows. The land in dispute in this appeal which originates from Land Application No. 36 of Nzega District Land and Housing Tribunal was allegedly acquired by Jidagina Masanja by clearing a bush. In such circumstances the two pieces of land cannot be the same. In holding so, I am alert of the argument by the Respondent during appeal that, he purchased the land from Charles Mtogwa thirty years ago. I find the argument to be an afterthought because it is not born by Court record. I have read the testimony of the Respondent and that of his witness, who testified as SU2 and found that, the two witnesses stated expressly that, the Respondent acquired ownership over the disputed land by clearing a forest. The issue of purchasing the land from Charles Mtogwa does not feature anywhere in the Respondent's evidence during trial. In that regard, I find the first ground of appeal to be meritorious. The second ground of appeal challenges the trial Tribunal for its failure to evaluate well evidence tendered by the Appellant during appeal. Findings of the first ground of appeal establishes that evidence tendered during trial was not evaluated at all. This being the first Appellate Court, I will evaluate evidence tendered during trial. It is trite law that, he who alleges must prove as provided by section 110 and 112 of the Evidence Act, [Cap. 6 R.E 2022].The Appellant who was the Applicant before the tribunal had a duty to prove his alleged ownership over the disputed land. In his efforts to prove his ownership over the disputed land, the Appellant had four witnesses including himself. He testified as SMI. In his testimony he stated that, he purchased the land from Snigela 5 Masanja Bundala in the year 1999 and he paid five cows as consideration for the purchase. The Appellant admitted that the area was a forest which he used as a grazing area for his animals and that, as of now, the land has been cleared by the Respondent. He insists that, the Respondent trespassed into his land. Shigela Masanja Bundala testified as SM2. He confirmed that he sold the land to the Appellant. As to the nature of the contract, he said they executed oral agreement which was witnessed by Lufungi Jiumbi and Latu Huruba. Mtobwa Jihumbi, SM3 stated that he owns a piece of land that is nearby the land in dispute and the land that belongs to Gidagina Masanja. He testified to the effect that the land in dispute belongs to the Appellant though he does not know how he acquired ownership over the same. According to this witness, there was no any dispute over the land before the current dispute emerged. Machibya Mgeta, SM4, stated that the land in dispute is the property of the Appellant. He testified to the effect that he was among the persons who witnessed the sale transaction between the Appellant and Shigela Bundala in the year 1999. This witness also stated that the land was used by the Appellant as a grazing area for his animals. During cross examination by the Respondent, he stated that the Respondent has not used the land for the alleged 25 years. According to him, the Respondent started to use the land after he trespassed into it in the year 2019. He also stated that, there was no dispute over the land before the Respondents trespass. In his defence, the Respondent had two witnesses including himself. He testified as SU1. In his testimony, the Appellant testified that, the land is his 6 property. He stated that, he acquired ownership over the land by clearing a forest and using it for a long time. He stated further that even the Tribunal after its inquiry found that the land is his property because he cleared a forest, constructed a dam and he has been using it for a long time. The Respondent also testified of existence of another case which he also won. The relevant part of his testimony reads; 'Nimefyeka na kutumia kwa miaka mingi, baada ya kuchunguza Baraza Hkatoa uamuzi kuwa eneo ni langu na kukabidhiwa kutokana na kufyeka pori kuchimba bwawa na kutumia kwa muda mrefu,...' A similar testimony was given by SU2 Bundala Machiya Masanja @Mwanamachiya. According to SU2 the area was a forest and was cleared by the Respondent. The Respondent also constructed a dam in the disputed land. The witness stated that, he was a leader of the area and he did not received any complaint against the actions of the Respondent over the land. Unfortunately this witness did not state the position held by him at the time the Respondent was clearing the land, when did his term commence and when exactly did the Respondent started to clear and occupy the land in dispute. That was all from the Respondent. In determining who won in a dispute, the Court considers a party whose evidence weighs more than the other. With the evidence in record, I find the Appellant to have managed to prove that the land in dispute was owned by him before the Respondent's trespass. Such evidence can be seen in the testimony of his vendor, Shigela Masunga Bundala @Fabiano Masanja, PW2, who clearly stated that he sold the land in dispute to the Appellant and Machibya Mgeta PW4 who witnessed the sale of land to the Appellant. The Respondent on the other hand did not state as to who owned the land prior 7 to his alleged clearing of the forest. This makes the Appellant evidence as to ownership over the land to be the sole evidence regarding ownership status of the disputed land. The only issue that need to be resolved is whether, the Respondent acquired ownership over the disputed land by adverse possession. The doctrine of adverse possession requires any person claiming ownership of the land under the doctrine to prove the following elements; i. that there had been the absence of possession by the true owner through abandonment ii. that the adverse possessor had been in actual possession of the piece of land; iii. that the adverse possessor had no any claim of right to be there other than his entry and occupation; iv. that the adverse possessor had openly and without the consent of the true owner done acts which were inconsistent with the enjoyment by the true owner of land for purposes for which he intended to use it; v. that the statutory period, in this case twelve 12 years, has already elapsed; vi. that there had been no interruption to the adverse possession throughout the aforesaid statutory period; The elements have been stated in a number of cases including the case of Registered Trustees of Holly Spirit Sisters Tanzania vs January Kamili Shayo & Others (Civil Appeal No. 193 of 2016) [2018] TZCA 365 (31 August 2018) 8 In the appeal at hand the Respondent has not demonstrated a number of elements. Court record does not establish abandonment of the land by the Appellant. Although the land is alleged to have a forest in which elephants used to enter, the same cannot be considered to be abandonment since the Appellant used the land as a grazing area. Evidence in record also establishes that, immediately after the Respondent entered into the land 2019, the Appellant reacted by lodging his complaints before various forums including filing a suit before the District Land and Housing Tribunal for Nzega which was registered as Misc. Land Application No. 154 of 2021.1 considered 2019 to be the year in which the Respondent trespassed into the land because there is no other piece of evidence in record which establishes when the Respondent cleared and occupied the land in dispute. The Respondent has not stated as to when exactly did he clear and occupy the land. His witness Bundala Machiya Masanja@ Mwanamachiya narrated unverified story regarding when exactly the Respondent cleared the land. He actually did not mention the year in which the Respondent cleared the land in dispute. Uncertainties as to the year in which the Respondent cleared and occupied the land makes the Appellant evidence as to when Respondent trespassed into his land to be the only reliable evidence as to when the Respondent entered and occupied the land. According to the Appellant and his witnesses, the Respondent trespassed into his land in the year 2019. From 2019 to 2021 when the Appellant lodged his first case before the Tribunal, only two years passed thus, the Respondent cannot be considered to be an adverse possessor of the land for occupation of only 2years. 9 In that regard, I find evidence in record has established that, Misayo Nzengi is lawful owner of the suit land. For that reason I don't find it necessary to determine the remaining grounds of appeal. The appeal is hereby allowed, the decision of the trial tribunal is hereby quashed and set aside. Given the fact that parties to this appeal are neighbours whose good relationship is necessary for their welfare, I do not award costs. Dated at Tabora this 19th September 2024 Z.D.MANGO JUDGE 10