mwanzatangu sudi v dr sabas kimboka 2023 tzhclandd 16857 29 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 229 OF 2023 (Arising from Land Appiication No. 378 of2010 ofthe District Land and Housing Tribunalfor Kinondoni)

MWANZATANGU SUDI APPELLANT

VERSUS DR.SABAS KIMBOKA RESPONDENT

JUDGMENT Date ofLast Order:13.08.2023 Date ofJudgment:29.08.2023 T, N. MWENEGOHA,J. This appeal originates from the District Land and Housing Tribunal for Kinondoni District, herein after called the Trial Tribunal. It follows a suit by the respondent, Dr. Sabas Kimboka, who sued the appellant, Mwanzatangu Sudi and four others, for trespassing into his land, measured 5 acres, located at Nakasangwe Madale and Wazo Hill Area, within Kunduchi Ward, Kinondoni District and Dar es Salaam Region. The respondent won the case and declared the rightful owner of the suit land, hence this was filed by the appellant, based on the following grounds:- 1. That, the Tribunal erred in law and facts, for declaring respondent as the lawful owner of the suit land without establishing clear chain of ownership as to who was the original owner of the disputed land prior purchase of the same by respondent; 2. Thatf the Tribunal erred in law and fact by disregarding documentary evidence adduced by DWl and DW2 in favour of oral evidence adduced by respondent; 3. That, the Tribunal erred in facts and law in holding that the respondent's evidence was heavier than that of the plaintiff, without giving reasons for the decision; 4. That,the Tribunal erred in facts and law by holding that, the appellant's evidence was basically not open to explain that, DWl was granted the disputed land by Tegeta

Village Government, while exhibits D1 and D2 proved application by here in appellant and grant of the same by Tegeta Village Government; 5. That, the trial Tribunal erred in law in holding that the evidence of DWl was not open to show that the land she was granted was the same land in dispute while the burden of proof lies to the applicant; The appeal was heard through written submissions. Advocate Shaban MIembe, appeared for the appellant, while the respondent was represented by Advocate Barnabas Luguwa and Advocate Mashaka Edger Mfala. However, as I was composing this Judgment, I noted an anomaly, affecting the competence of the case at hand. That, the names of the parties appearing in the Memorandum of Appeal are different from those appearing on the original case, vide Land Application No. 378 of 2010. Owing to such circumstances, the parties were notified on the concern noted by this Court >l 1 and were ordered to address it on the said issues. Both parties complied with the order and addressed the issue through written submissions. I appreciate their submissions as the same have shaded a light on what ought to have been done by the appellant to avoid the inconveniences attached with the present appeal. However, I will not reproduce their submissions for the purpose of serving this Court's precious time. The position as far as of names of parties to the case is settled.

The same cannot be changed at the will of the litigants as they are at centre of the identification of the parties to the case. The Appellant should have listed all names appeared in the former case in this appeal too. There are number of authorities highlighting this position. These are the case of Salim Amour Diwan versus The Vice Chancellor Nelson Mandela African Institution of Science and Technology and Another, Civil Application No. 116/01 of 2021, Court of Appeal of Tanzania at Dar es Salaam (unreported) and the case of CRDB Bank PLC (Formerly CRDB (1996) versus George Mathew Kilindu, Civil Appeal No. 110 of 2017, Court of Appeal of Tanzania at Dar es Salaam(unreported), to name but a few. In my view, leaving other persons involved in the trail case at this stage has two effects in the appellant's case. Firstly, it creates a new case, distinct from the original case, vide Land Case No. 378 of 2010. Any appeal must have its original, the roots, where it came from. ^The appellant in the present appeal has decided to cut the root off her appeal, hence it cannot survive without it. Secondly, leaving other names, like what was done by the appellant, affects the records of the case. The consequences are the same as those in the first scenario above there can be no appeal without the records of the trial case. For these reasons, I find this appeal to be incompetent. The same is struck out accordingly with costs. It is ordered. or T, rMlWENEGOHA o JUDGE N s C5/ 29/08/2023 2. V 5! * I' sr