MSASU MDULU

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND APPEAL NO. 26956 OF 2023 (Arising from the District Land and Housing Tribunal for Singida in Land Application No. 92 of 2020) MSASU MDULU................................. ......... APPELLANT Versus PAULINA NKUNGU................................................. 1st RESPONDENT SAMWEL MTINDA...................................................2nd REPSONDENT JUDGMENT Date of Last Order: 26th September 2024. Date of Ruling: 11th October 2024. MASABO, J:- The appellant herein is aggrieved by the decision of the District Land and Housing Tribunal for Singida (the trial tribunal) in Land Application No. 92 of 2020. In the said case, the appellant who was the complainant, alleged that the respondent had trespassed into his land measuring 4 acres located at Mpipiti Hamlet, Kisisi Village in Singida Region which he purchased from one Mtinda Gholoji who is the first respondent's husband in 1992 at a consideration ofTshs. 30,000/= and one herd of cattle. This claim was vehemently opposed by the respondents who stated that the first respondent and her husband acquired the suit land in 1986. It was allocated to them by the village authority after they cleared a bush. The Page 1 of 7 second respondent who is the first respondents son, stated that he was born in the suit land and has his family been using the same since he was born in 1989 and for all this time, there has been no interruption. Upon hearing the parties the tribunal was satisfied that the appellant has not proved the case to the required standard. Therefore, it dismissed the suit and declared the respondents as the owners of the suit land. Aggrieved by the decision, the appellant has appealed to this court armed with the following grounds of appeal. One, the trial tribunal erred when it decided in favour of the 1st respondent without considering that the appellant bought the suit land and used the same for more than twelve years peacefully until 2018 when the dispute arose. Two, the trial tribunal erred by relying on the weak evidence of the first respondent that she was allocated the suit land by Mjughuda Village Council while there was no documentation in proof of the allocation. Three, the trial tribunal disregarded the evidence adduced by the appellant and his witnesses. Four, the trial tribunal erred in law when it decided in favour of the respondents based on the reason that the person who sold him the land did not testify in court a finding which disregarded the fact that the family members of the person who sold him the land well acknowledged that his where about is unknown. The appeal was heard through virtual court on 26th September 2024. Both parties were unrepresented. They both appeared in person. Submitting in support of the appeal, the appellant submitted that he is not satisfied with Page 2 of 7 the decision of the trial tribunal because the suit land is his. He purchased it from Mtinda Gholoji. After purchasing it he used it for a long time until when he felt sick. During his ailment, the respondents trespassed into it. He prayed that the tribunal's judgment be quashed and set aside. In reply, the first respondent submitted that she was allocated the suit land by village authority in 1976. Since then, she has been using it peacefully. She submitted that DW3 was among the leaders who allocated her the suit land. The second respondent submitted that the land belongs to the first respondent who is her mother. She has been using it for a long time. When he was born in 1989, his parents were both occupying the suit land and as of today, they are using it. For all this time, they used it peacefully with no dispute whatsoever. He prayed that the court determine the appeal justly by declaring them the owners of the suit land. In rejoinder, the appellant reiterated his submission in chief and prayed that the appeal be allowed as the respondents trespassed into his land after he felt sick. I have carefully considered the grounds of appeal in the light of the records of the trial tribunal alongside the submissions by the parties. The four grounds of appeal marshalled by the appellant revolve around the assessment, analysis and evaluation of the evidence. He has stated in these grounds that if the trial tribunal properly evaluated the evidence it would have held in his favour considering also that the respondents evidence was weak and as a family, they admitted that the whereabouts of Mtinda Gholoji Page 3 of 7 who sold him the suit land is unknown hence, he could not be procured as a witness. The invitation extended to this court by the appellant is, therefore, to re appraise the evidence on record and come up with a finding on the correctness or otherwise of the trial tribunal's decision. As I embank on it, I will proceed guided by the following two salutary principles of the law. First, that, the role of this court sitting as the first appellate court is to reevaluate the evidence adduced during the trial court or tribunal and arrive at its own decision as stated in the case of Philbert Krisantus Mpepo vs National Microfinance Bank PLC &Another, Civil Appeal No. 477 of 2020 [2024] TZCA 627, where the Court of Appeal held that: This being the first appellate court and since the appellant among others complaints, has raised the issue of failure to evaluate the evidence, then the principle regarding the duty of the first appellate court is to reevaluate the whole evidence is of significance. Second, the principles governing proof in civil proceedings which places the burden of proof on a person who asserts the existence of a fact. Such person is required by law to prove his allegations on the balance of probabilities which is the standard of proof in civil cases, (see sections 110 and 111 of the Evidence Act, Cap 6 R.E. 2022 and case of Antony M. Masanga vs Penina (Mama Ngesi) and another, Civil Appeal No. 118 of 2014 [2015] TZCA 556 TanzLII). Page 4 of 7 Guided by these principles, I have thoroughly examined the record to ascertain whether as per the evidence adduced before the tribunal, the appellant who was the applicant therein managed to prove his ownership of the suit land. In this endeavor, I have observed that, the appellant while testifying as PW1, told the tribunal that the suit land is his. He purchased it from Mtinda Gholoji on 25/9/1992 and in consideration, he paid a sum of TZS. 30,000/= and one herd of cattle. The sale agreement which was tendered and admitted by the trial tribunal as exhibit Pl was executed at the suit farm and was witnessed by PW2 Solomon Martin. The first and second respondent who are, respectively, the wife of and son of the said Mtinda Gholoji refuted the claim. The first respondent testified as DW1. She stated that the suit land was allocated to her and her husband, Mtinda Gholoji, by the village council in 1986. They used the same until 2000 when her husband, Mtinda Gholoji, deserted her and she has since then been using it. Corroborating this story, her son, the second respondent (DW2), stated that his parent has been, owning the suit land since 1980's. After he was born in 1989, he found his parents using the suit land and they continued to use it uninterruptedly. DW3 Ramadhani Mohamed was among the members of the Village Council in 1980's. He was responsible for the allocation of land to the villagers. He recalled that, indeed, the first respondent and her husband Mtinda Gholoji were allocated the suit land in 1986 and since then, they have been using it uninterruptedly. From the evidence of both parties, two things are deciphered. First, that the 1st respondent and his husband jointly acquired the suit land in 1986 after it Page 5 of 7 was allocated to them by the village authorities. Second, in 1992, the 1st Respondent's husband, Mtinda Gholoji, unilaterally sold the suit land to the appellant. The appellant while testifying as PW1, stated that, prior to the sale transaction, Mtinda Gholoji was using the suit land with his family but on the day of the transaction, neither Mtinda Gholoji's wife nor his children witnessed the sell as they were all absent when they executed the sale transaction at the farm. The immediate question that need be answered is the legality of this disposition. The trial chairperson answered this issue negatively arguing that, as the suit land was a matrimonial asset jointly owned by the first respondent and her husband, Mtinda Gholoji, its disposition required her consent and the absence of which rendered the sale invalid. I entirely agree with him. Disposition of a jointly owned asset be it a landed property or not requires the consent of both parties more so in this case where, the 1st respondent and Mtinda Gholoji are a married couple because, under Section 59 of the Law of Marrige, Cap 29 R.E 2019, it is presumed that, a property acquired during the subsistence of the marriage is a matrimonial asset and both spouses have an equal interest in it save where the presumption is rebutted. Therefore, since there was no such rebuttal in the present case, and DW3 credibly testified that the suit land was jointly allocated to the 1st respondent and her husband it is obvious that the 1st respondent had a vested interest similar to the one held by her husband Mtinda Gholoji and, the said Mtinda Gholoji had, therefore, no right to dispose it without her consent. Page 6 of 7 For the reforging reason, I have found this appeal with no merit as I concur with the trial chairman that the disposition of the suit land was invalid. Accordingly, the decision of the trial tribunal is upheld and the appeal is dismissed with costs. DATED and DELIVERED at DODOMA this 11th day of October 2024. J.L. MASABO JUDGE Page 7 of 7