chale

i9 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY AT MOROGORO LAND APPEAL NO. 2374 OF 2024 (Arising from the Decision of the District Land and Housing Tribunal for Kilombero/Malinyi at Ifakara in Land Application No. 66 of 2020 delivered on 13/12/2023) MWANAISHA CHALE... APPELLANT VERSUS JACOB MOHAMED MWEKA RESPONDENT JUDGEMENT 05/03/2024 & 18/04/2024 KINYAKA, 3.: Before the District Land and Housing Tribunal of Kilombero/Malinyi at Ifakara hereinafter, "the Tribunal", the appellant was sued by the respondent for trespass over his land measuring 27 acres located at Ihowanja village, Kilosa Mpepo Ward within Malinyi District in Morogoro Region. It was alleged before the Tribunal that sometimes in 2015, the respondent purchased the disputed land from Omary Chltende at a consideration of TZS 1,300,000 but soon thereafter upon the respondent's commencement of clearing the same in view of planting seasonal crops, the appellant trespassed over the disputed land claiming to be the owner of the same. The 1 appellant vigorously opposed the suit contending to be the owner of the disputed land. She further claimed to have owned part of the land from 2013 upon clearing the bush, and that the 10 acres were allocated to her by Ihowanja Village Council in 2015 in which she was later on given customary right of occupancy. After the conclusion of hearing of the parties and their witnesses, the Tribunal, on 13^^ December 2023, allowed the respondent's application by pronouncing him the lawful owner of the disputed land based on the weight of his evidence as against the appellant's contradictory evidence. The appellant was dissatisfied with the decision of the Tribunal and preferred the present appeal with three grounds, namely:- 1. That the trial tribunal erred in law and in fact by failure to evaluate evidence adduced by the appellant during trial; 2. That the trial tribunal erred in law and in fact by pronouncing defective judgement in the eye of law by failure to answer framed issues; and 3. That the trial tribunal erred in law and in fact by pronouncing the respondent herein an owner of the disputed plot without taking into consideration the weight of the evidence. Both parties appeared In person and unrepresented. They made a prayer for disposition of the appeal by written submissions which the Court granted on 19^^ March 2024. The parties duly complied with the Court's schedule to file their respective written submissions. The appellant's submissions were drawn by Ms. Levina Leo Mtweve, learned advocate. It was submitted in respect of the first and third grounds of appeal which were consolidated and argued as one that the Tribunal was duty bound to analyze and evaluate evidence adduced by both parties before reaching its decision. The Learned counsel referred to the case of Stanslaus Rugaba Kasusura & Phares Kabaye(1982)TLR 338 where it was held that the trial judge should have evaluated the evidence of each witness assessed their credibility and made a finding on the contested facts in issue. She submitted that the testimonies of both the respondent and his witness were general and did not clearly show the exact land and its boundaries and demarcation to the extent that it would have referred another land apart from the disputed land contrary to Order VII Rule 3 of the Civil Procedure Code Cap, 33 R.E. 2019 as held in the case of Mondorosi Village Council & 2 Other v. Tanzania Breweries Limited & 4 Others, Civil Appeal No.66 of 2017 CAT (unreported), and Daniel Kanuda v. Masaka Ibeho ^Cr and 4 Others, Land Appeal No. 26 of 2015 that disclosure of the address or location was not cosmetic but intended to identify the land in dispute from other pieces of land around it. She submitted that the respondent failed to prove his ownership of the land in dispute on balance of probability under section 110 of the Evidence Act, Cap. 6 R.E. 2022. Ms Mtweve further submitted that she did not find any contradictions in the testimonies of the appellant's witnesses as to the differences in the appellant's ownership of 6 Va, 10 acres, 16 Va acres and 20.9 acres shown in the customary right of occupancy, since in general, the testament suggested that the land in dispute owned by the appellant was 16 Va acres. She stated that since the size of land as testified by the witnesses was obtained from local based measurements, it would obvious differ with that in the customary right of occupancy as the latter was professionally Pleasured and surveyed. He prayed the Court to take judicial notice of the aspect.' The learned counsel contended that while the appellant tendered the certificate of title which showed location, demarcation and boundaries of the land in dispute including GPS, the respondent tendered only receipts from the village council. She argued that if the Tribunal was keen to examine the %\ u evidence tendered and measured the same on balance of probability, it would have found that the appellant's evidence was superior compared to the respondent's. She referred to the case of Amina Maulid Ambali & 3 Others v. Ramadhan Juma (2020) 2 T.L.R. 97(CA) on page 6 which held that when two persons have competing interests in a landed property, the person with a certificate thereof will always be taken to be a lawful owner unless it is proved that the certificate was not lawfully obtained. She concluded that since there was no objection on the authenticity of the appellant's certificate of title, the same was superior to prove ownership of the said land. Regarding the second ground, the appellant's counsel contended that the chairman of the Tribunal only resolved the first issue leaving the other hanging. She cited the cases of Alisum Properties Limited v. Salum Selenda Msangi(as Administrator of the Estate of the Late Selenda Ramadhan Msangi), Civil Appeal No. 39 of 2018 CAT and Kukal Properties Development Ltd v. Maloo and Others (1990) E.A. 281 CAK where in both cases it was underlined that it constitutes breach of procedure and renders judgement defective if a court fails to decide on every issue. She prayed for the Court to allow the appeal, quash and set aside the judgement of the Tribunal with costs. The respondent who drew and filed the reply submissions on her own opposed the appeal by submitting that the cases cited by appellant are irrelevant to the present case. He submitted that the evidence of the appellant's side had many contradictions. He illustrated that, SU2, Kulwa Erasmus Lukorate testified that the disputed land was 6 acres, SU3, Wiiliam Petro Mtolwa testified that the land dispute was 10 acres and SU4, Lydia Ramadhani Utolite testified that he participated to issue 16 V4 to the appellant, whereas the appellant, SUl testified that her land was 20.9 acres. He argued that the evidences were formulated and failed to balance the same relying on the case of Antony M. Masanga v. Penina and Another, Civil Appeal No. 118 of 2014 CAT (unreported) and Hemedi Said v. Mohamed Mbilu (1954) T.L.R 113 which held that in measuring the weight of evidence it Is the quality of evidence that matters and not the number of witnesses. He contended that the respondent proved his case on balance of probability by tendering payment receipt issued by Ihowanja village government which showed that the 27 acres belonged to Omary Mohamed Chitende who developed the same before he sold the land to the respondent. He submitted that the certificate of title registered in the name of the appellant does not prove ownership of the disputed land as the appellant cunningly registered the land without his knowledge. He submitted that according to the Land Act of 1999, it is the village which holds village lands. He contended that he is the lawful owner of the disputed land as he was given the land in 2014 while the appellant's certificate of title was issued in 2018 after he acquired the disputed land. He argued that there has been no notice from Ihowanja village to remove him from the disputed land. He opposed the third ground of appeal on the submission that the Tribunal was correct to pronounce judgement in his favour as the lawful owner of the disputed land after it evaluated evidence adduced by both parties to the suit and found that his evidence was weighty and clear compared to the appellant's. Against the second ground, the respondent submitted that all framed issues were answered as shown in a copy of the judgement. He prayed for the dismissal of the suit with costs. In his rejoinder, the appellant contended that the respondent's contention that he had better title of the land in dispute since he was the first to possess the same in the year of 2014 while the appellant's Certificate of Title was issued in the year of 2018 cannot only be used to substantiate the claim of ownership over the land, but also the same has to be disregarded due to the fact that time of occupation is not the only factor to consider while ascertaining the ownership over the suit land unless It concerns the issue of double allocation. Fortified by the provision of Order VII, Rule 3 of the CPC, and the holding in Amina Maulid Ambali and 3 others v. Ramadhan Juma [2020] 2 T.L.R 97 [CA] on page 6 Ms. Mtweve pressed that the respondent ought to have provided strong evidence which is superior than the certificate of title to prove that he is the rightful owner of the suit land. She stated further that all cases stated in the appellant's submission in chief were materialized by each ground thereof and substantiates the similar situation with the present appeal. As regards to the alleged contradictions in testimonies given by the appellant's witnesses, Ms. Mtweve averred that the testimonies don't have any contradictions if analyzed with material facts adduced at the Tribunal regarding the suit land and that it was the Tribunal that erred in evaluating the appellant's evidence which led to wrong decision. Concluding on her rejoinder submissions, the learned counsel insisted that the present appeal has merit hence the same should be allowed with cost. I have closely read the pleadings, proceedings, and judgement of the Tribunal and appreciated the submissions of the parties in the present appeal. I will first determine the first ground of appeal followed by the third ground of appeal irrespective of their consolidation by the appellant, and finally. Twill determine the second ground of appeal. The first ground of appeal faults the Tribunal for Its failure to evaluate evidence adduced by the appellant at the trial. The proceedings and judgement of the Tribunal reveal that the Tribunal evaluated evidence of both parties and their witnesses as reflected on page 6 through to 9 of the judgement where it found the evidence of the respondent valuable as opposed to the appellant's which was manned with contradictions. On page 6 through to 7 of the judgement, the Tribunal evaluated the evidence of SMI and SM2 on how SMI acquired the disputed land from SM2. On page 7 through to 8, the Tribunal analyzed and evaluated the evidence of SUl, SU2, SU3 and SU4 where it deliberated that the same contained contradictions as to the size of the land in dispute demonstrated by all the witnesses. In the end, the Tribunal agreed with the opinion of the member of the Tribunal, -.Vi.-''' ' Ms. Otilia Mhomera, and allowed the respondent's application with costs. The Tribunal held in the last paragraph of page 8 that:- ''Hivyo basi baada ya kup/tia ushah/di wa pande zote mbiH nimendhika kuwa ushahidi wa upande wa Mdai una ubora zaidi wa ule wa upande wa uteteziambao una mkanganyiko na hauna mtirinko mzuri. Kwa haii hiyo nami nakubaliana na maoni ya mshauri mmoja wa Baraza nifiyekaa naye kwenye shauri hHi ambaye ameshauri madai yaafikiwe. From the above extract, I find the Tribunal to have evaluated and analyzed the evidence adduced by the parties before it. The first ground is dismissed for lack of merit. I now move to determine the third ground which faults the Tribunal for pronouncing its decision in favour of the respondent without considering weight of evidence. In her submissions, the appellant contended that the respondent did not prove his ownership of the land in dispute on the required standard. In buttressing his concern, the appellant argued that the testimonies of both the respondent and his witness were general and did not dearly show the exact land in dispute, its boundaries and demarcation. As for the pointed out contradictions, it was her view that the same were not 10 fatal as the testament suggested that the land in dispute owned by the appellant was 16 Va acres; and since the size of land as testified by the witnesses was measured locally, it would obviously differ with that in the customary right of occupancy, as the latter was professionally measured and surveyed. She urged this Court to take judicial notice. She maintained that the appellant had superior evidence of certificate of title which entitles the holder to be held a lawful owner unless it is proved that the certificate was not lawfully obtained. On basis of such complaints, as the first appellate court, this Court is tasked with a duty to of scrutinize the evidence adduced at the trial.[See the case of Registered Trustees of Joy in The Harvest v. Hamza K. Sungura, Civil Appeal 149 of 2017 (unreported) on page 7]. I had to take pain to travel through the evidence of both parties at the Tribunal with a view of re- evaluating and analyzing the same. At the Tribunal, the appellant who featured as SUl testified that her land measured 20.9 acres and tendered Exhibit S2, the certificate of title. But in her evidence she testified that she owned 6 V4 acres which she cultivated and then she applied and was given 10 acres by the village council. However, the appellant did not testify how she acquired the 6 V4 acres. She ^cr 11 did not testify how she acquired the remaining 3 3/4.9 acres from the 16 V4 acres which made a total of 20.9 acres that she alleged to own and which were indicated in her certificate of title. There are numerous authorities to the effect that a person claiming ownership over the land in dispute must provide proof as to how the same came into his possession. For instance, in the case of Serikali Ya Kijiji Karumo v, Wahalalika Siyonka, Land Appeal 2 of 2021 (unreported) on page 14 through to 15, this Court had the following to state;- holder ofland must ha ve proofofhow he acquired the land. For instance, in government allocation, it is expected for a person to prove by offer or rightofoccupancy/titie deed, bearing his or her name. In the mode ofacquisition by way ofpurchase, ■ the person is expected to prove the acquisition and ownership by exhibiting the sale agreement or where the land is registered by transfer. While where the same is by inheritance, he is expected to show the probate and administration process which reaiiy passed the saidiandfrom the deceased to him or her. Last, ifthe acquisition is by way ofgift, then the owner is expected to prove it by the deed ofgift." In balancing the evidence in the case at hand, the evidence of SMI and SM2 was clear and straight forward in terms of acquisition and the sale of the 12 disputed land measuring 27 acres by SM2 to SMI, respectively. In his testimony, SM2 testified to have paid TZS 135,000 to the same village council for acquisition of the 27 acres of land on 11^^ August 2014. This was prior to the appellant's alleged acquisition of the 6 V4 acres on an unknown date, 10 acres from the village council in 2015 and the 20.9 acres through her certificate of title issued in 2018. In their respective evidence at the trial none of SUl, SU2, SUB nor SU4 disputed that SM2 owned the 27 acres on the dates and never disputed the genuineness of the receipt evidencing SMS's payment for the ownership of the same. Furthermore, in my firm view, the fact that SM2 agreed to give the appellant 6 acres as testified by SM2 and SU2 cannot in any event pass ownership to the appellant. I so hold because, it has been established that SM2 and the appellant were lovers hot husband and wife, and that at the time SM2 accepted to give the 5 acres, he had no title to give any piece of land after he had sold it to the respondent. SU2 testified that the appellant owned 5 acres out of 6. The appellant never testified that she owned 6 acres but 6V4 acres, though she did not prove the source of her ownership of the 6 Va acres. That piece of the appellant's evidence was contrary to the evidence . ' ' y ■ ■ ■ 13 ;■ \ of SM2 and SU2, in that the appellant testified that she began cultivating the land and had not obtained the same from SM2 after the dispute arose. More to that, having examined the evidence on record, I found the appellant to have lied as regards to her familiarity with the respondent. There has been no dispute that from the evidence on record, Omary Mohamed Chitende, SM2 sold the land to SMI, the respondent. SMI, SM2 and SU2 testified that the appellant complained at the Village Executive Officer on the respondent's invasion and trespass over her land. Not only that but also, the appellant testified on page 12 of the proceedings, thab the respondent invaded her land by destructing her teak trees, mango trees and cashewnut trees using a tractor. It is surprising when the appellant on page 15 of the proceedings, informed the Tribunal that she did not know the respondent before and that she knew him at the time of the dispute at the Tribunal. This corrodes the evidence SUl as it is now a firm stance of the law that a witness who tell lies in a material point ought to be hardly believed in respect of other points [See the case of Mohammed Said v. Republic, Criminal Appeal No 145 Of 2017(unreported) on page 13]. In the sarhe vein,1 find it to be improper for the appellant to rely on Exhibit SU2, the certificate of title evidencing her ownership of 20.9 acres of land, ■'te' 14 tj; ■ ■ ^ 'v. . . .' ' - fio i- 'w ■ ■ . .. .... ^ w- issued in 2018 which was obtained after the dispute had arisen between her and the respondent and without involving the respondent. The fact that the appellant testified on page 15 of the proceedings that she involved all neighbours when surveying the disputed land culminating to the issuance of Exhibit S2, and that she did not know the respondent at the time, is highly improbable and diminishes the value of evidence as intimated above. In the circumstance, I find the case of Amina Maulid Ambali & 3 Others(supra) cited by the appellant distinguishable in the circumstance where the certificate of title was procured in respect of the land proven to have been previously owned by SM2 and which was later on sold to the respondent. Regarding the contradictions, the appellant argued that the appellant proved her ownership and in the end it was established that the size of disputed land was 16 V4 acres. Again, she argued that the 16 acres was due to local measurements as opposed to 20.9 acres in the certificate of title which was later on established through survey. I should first point out that the submissions as to the similarity between the local measurements that established the appellant's land size of land of 16 V4 acres and the measurement after the disputed land was surveyed that established the appellant's size of 20.9 acres, are not reflected anywhere in 15 the proceedings. It was expected of the appellant or her witnesses to testify before the Tribunal on the huge differences in the size of the same land alleged to have been owned by the appellant and the reasons for such differences. The arguments which were invented at the level of the appeal are in my profound view, an afterthought and geared at preempting the decision of the Tribunal. The Court cannot take judicial notice of a fact which ought to have been established at the trial. Without prejudice to the above, I agree with the Tribunal that the contradictions demonstrated by the appellant and her witnesses as to the size of the disputed land are fatal. At this point, I wish to remark that as a matter of practice, whenever there are contradictions on the evidence adduced at the trial, it is the duty of the court to assess the same in view of ascertaining whether the same are minor or material contradictions. As to the difference between the former and the later, I fully associate myself with the wisdom of the Court of Appeal in the case of Ombeni Kimaro v. Joseph Mishili t/a Catholic Charismatic Renewal, Civil Appeal 33 of 2017(unreported) on page 19, where it was underlined that; 'The position ofiaw is that for a contradiction or inconsistence or omission in evidence to be considered materiai, it must not be a minor contradiction, the inconsistence must be going to the 16 ^3^ very substratum of the case for it to be considered a materiai inconsistence..." With the above position in mind, I find the contradictions complained of material. In any sense, the same land cannot be measured I6V4 acres and 20.9 acres at the same time even if it was locally measured or professionally surveyed. SU2 testified on page 17 and 18 that the disputed land was 6 acres as opposed to 6V4 acres as testified by SUl on page 12 of the proceedings. SUl testified on page 17 of the proceedings that the appellant's land was 5 acres out of the 6 acres. To the contrary, SU3 testified on page 19 and 20 that the appellant applied to the village council to be granted 10 acres which latter did. In total contradiction, SU4 testified that the disputed land was 16 V4 acres comprised of 6 V4 which the appellant was cultivating before, and 10 acres which the village council granted the appellant upon her application. On the basis of the above findings, I agree with the Tribunal that the contradictions in the testimony ofthe appellant and her witnesses diminished credibility of the witnesses and the weight of their respective evidence. Similar view was made by the Court of Appeal in the case of Africarriers Limited v. Millenium Logistics Limited, Civil Appeal 185 of 2018 (unreported) on page 13 where the apex Court referred it's authority in the 17 • .. •• • : i^ii . •- case of Ernest Sebastian Mbele v. Sebastian Sebastian Mbele and 2 Others, Civil Appeal No. 66 of 2019 (unreported) and held that contradictions that go to the root of the matter blemish the evidence and taint the witness's credibility. It follows that on balance of probability, the evidence of the respondent before the trial established that history and manner of acquisition of the 27 acres contrary to the evidence of the appellant which was manned with contradictions. However, I should point out that SMI testified on page 4 and 5 of the proceedings that the appellant won at the Ward Tribunal of Kilosa Mpepo and was pronounced the owner of 10 acres within his 27 acres. It was also established on page 14 of the proceedings that the appellant and the respondent were mediated and upon failure of mediation, the parties were referred to prefer their dispute at the Ward Tribunal of Kilosa Mpepo. The respondent did not state if he appealed against the decision of the Ward Tribunal apart from complaining that the appellant won because she was the member of the Ward Tribunal. From the above evidence, it is clear that the appellant was pronounced the lawful owner of the 10 acres within the respondent's 27 acres by a competent forum, the Ward Tribunal. As there 18 • had been no evidence that the decision was challenged or reversed, the decision remains valid. It means that the appellant is the lawful owner of the 10 acres pursuant to the decision of the Ward Tribunal of Kilosa Mpepo. This Court was once confronted with a much similar situation in the case of Daniel Nyakutwi Solomon! v. Emmanuel Omoro, Land Appeal No. 79 Of 2010 (unreported) and observed as follows on page 2 of its judgment:- When striking out appeai No. 33/2009, the Learned Chairman ofthe District Land and Housing Tribunai did not also strike out or quash the decision of the Ward Tribunai in Land Case No. 12/2008. To date that decision stiii stands unchallenged....as long as the decision ofthe Ward Tribunal remains unchallenged albeit it is wrong, that decision is the decision ofthe competent Tribunal, and a subsequent case on the same subject matter between the same parties is resjudicata." In respect of the above observation, the third ground of appeal Is partly allowed to the extent that the appellant is the lawful owner of the 10 acres that she won at the Ward Tribunal of Kilosa Mpepo. The decision relating to the dispute over the 10 acres, could not be challenged through the respondent's filing of a fresh suit before the Tribunal. .. ^ '" V-- • ■ ■■■ ^ 19 7,1 VV;': Vi ■ .. i - ., 7.. . f?f.r As regards to the appellant's argument that the respondent's evidence was general and did not describe the land in terms of demarcation and boundaries, I find this argument new. It was neither pleaded in the pleadings nor in evidence of the witnesses at the trial hence I am not duty bound to determine the same[See the case of Hotel Travertine Limited and 2 Others v. National Bank of Commerce [2006] TLR 133]. That notwithstanding, I find that the land was properly known by both parties. Paragraph 3 of the respondent's Land Application No. 66 of 2020 clearly stated that the disputed land was 27 acres located at Ihowanja village, Kilosa Mpepo Ward, Malinyi District. Paragraph 6(a) item 3 of the land application pleaded that the respondent trespassed into the land in 2016. In his written statement of defence, the appellant pleaded in paragraphs 6 and 7 by denying trespass into the land by contending that the disputed land is hers, and that it was the respondent who Invaded the same in 2016. Again, when cross examined on page 7 of the proceedings, SN12 described the neighbours and boundaries to the disputed land. Further, the evidence of SMI, SM2, and SU2 before the Tribunal established that there was a dispute over the disputed land before the Village Executive Officer where the appellant sued the respondent for trespass over her land in 2015/2016. The 20 evidence prove that the disputed land was properly described, identified and known by both parties to the suit. I therefore find the appellant's argument unmeritorious. It follows that even the cases of Mondorosi Village Council & 2 Other (supra) and Daniel Kanuda (supra) cited by the appellant in support of her arguments are distinguishable. The second issue is on the alleged failure by the Tribunal to determine the second issue as to reliefs. I do not see merit in the ground of appeal. What can be deducted from the records is that the Tribunal determined the second issue as to the reliefs the parties were entitled to, on 9 of the judgement by holding that:- ''Kwa kuhitimisha madai ya Mdai yamekubaHwa kwa gharama. Mdai ndiye mmiUki halali wa eneo gombewa'' Admittedly, it was important for the Tribunal to reproduce the specific issue for the same to be found as determined. But for as long as there was a determination and pronouncement of reliefs that the parties were entitled, I find the Tribunal to have acted within the ambit of the requirement of determination of issues in a suit. I find the cases of Alisum Properties Limited (supra) and Kukal Properties Development Ltd (supra) cited ■do 21 by the appellant distinguishable from the present matter. The second ground of appeal Is dismissed for lack of merit. In the upshot, the present appeal is allowed to the extent of the appellant's lawful ownership of 10 acres that she won at the Ward Tribunal of Kilosa Mpepo. It means that the respondent is the lawful owner of the remaining 17 acres out of the 27 acres in dispute. As the appeal is partly allowed, I order each party to bear its own costs. It is so ordered. DATED at MOROGORO this 18^*^ day of April 2.024. 4^■> ^ oJU\^ H. A. KINYAlU JUDGE 18/04/2024 worogO 22 Court Judgment delivered this 18^^ day of April, 2024 in the presence of Ms. Neema, a representative of the Appellant and Switibet Hamaro Paulo Court Clerk, in absence of both Parties. v\ DEPUTY REGISTRAR OKO 18/04/2024 Court: Right of the parties to appeal to the Court of Appeal of Tanzania fully explained. COb K bwa I •VVn DEPUTY REGISTRAR 18/04/2024 0^0 , 23 ■IHI